Gorsuch is being widely hailed by Republicans and conservatives for, among other things, his belief in constitutional originalist philosophy and his rulings on religious liberty. Liberals and Democrats, The Post reports, are blasting him as a “tool of conservative activists who would gut protections for consumers, workers, clean air and water, safe food and medicine and roll back the rights of women and LGBT people.”
All that will get litigated in due time, but another area that hopefully will also get aired out centers on whether our institutions — in this case, the courts — will function as a check on Trump’s excesses.
“Here we do need answers, because we haven’t had a president who has so openly flouted our norms,” Elizabeth Wydra, president of the Constitutional Accountability Center, told me this morning.
There are already widespread fears, including among some center-right writers, that the courts might not be up to the task of reining in Trump. Senators might ask Gorsuch for a general statement of principle here. “I would ask him what the court’s proper reaction would be if a president refused to comply with an order from his court or a lower court,” Wydra says, adding that she would hope to hear a “rousing endorsement of the importance of the judiciary as a check on authoritarian behavior by the elected branches.”
Trump has also been known to insult members of the judiciary, such as when he attacked a judge hearing a challenge to Trump University over his Mexican American heritage. A mischief-making possibility might be to ask Gorsuch for his reaction to that.
Trump’s refusal to divest from his business holdings sets up the possibility for unprecedented conflicts of interest. Trump is already being sued by good government watchdogs who argue that Trump’s holdings, through payments from foreign powers, put him in violation of the Constitution’s emoluments clause, and that the president should be subject to emoluments clause restrictions. Trump’s lawyers argue that the clause doesn’t apply to fair-market value payments such as hotel bills, and others have defended Trump on the grounds that such payments are not to Trump — to the president — but to his businesses.
Here’s another area where the confirmation process could shed needed light via general lines of questioning. “I would ask Gorsuch what he thinks about the scope of the emoluments clause — to whom does he think it applies, and in what context?” Wydra continued. “Does it apply to the president, and does it apply if there is a fair value trade?”
Trump’s bullying and hostility toward the media, and his hints at restrictions on them, raise questions about his respect for the First Amendment and his commitment to freedom of the press, which might come under extreme strain amid more criticism or, worse, a national crisis. Something along these lines might come before the courts. Josh Blackman, a libertarian associate professor at the South Texas College of Law, suggests a focus on Gorsuch’s views of the “actual malice” standard, in which actual malice must be deemed present for a public official to sue a media organization for libel. Blackman says Gorsuch might be asked: “How would you define the ‘actual malice’ standard for the First Amendment?”
Trump’s executive order temporarily banning refugees and migrants from seven Muslim-majority countries, which will be challenged in part on the grounds that its intent is discriminatory, suggests (as do his own campaign vows of direct persecution of Muslims) the possibility of more policies to come targeting Muslims, especially if there is a terrorist attack. Meanwhile, Trump has flatly stated that evangelical Christians will “love” his Supreme Court pick.
“I would straight up ask Gorsuch about Trump’s comment and whether he feels he would be capable of providing fair and equal justice to people of all faiths or no faiths,” Wydra says. On Trump’s executive order, she notes, Gorsuch might be asked: “Do you think the Equal Protection Clause and constitutional protections against establishment of religion apply to individuals seeking to enter the United States who are not citizens?”
There are obviously plenty of other questions, such as in the area of voting rights. Trump’s lies about voter fraud suggest the possibility of major new voter suppression efforts on the national level, so Gorsuch’s constitutional views on this topic, too, will likely be probed. Needless to say, the very fact that so many questions like these need to be posed underscores what a unique and potentially threatening moment we find ourselves in right now.
* DEMS WILL FILIBUSTER COURT NOMINEE: Tuesday night Chuck Schumer announced that Democrats will filibuster Gorsuch, and the New York Times comments:
That would either require eight Democrats to join the Senate’s 52 Republicans to advance the nomination, or force Republicans to escalate a parliamentary showdown — as Mr. Trump has already urged them to do — to change longstanding rules and push through his nominee on a simple majority vote.
There will be a lot of pressure to hold the line from the Democratic base on senators from states carried by Trump who are up in 2018. If they do, bank on it — Mitch McConnell will change the rules.
* HALF OF AMERICANS DISAPPROVE OF TRUMP: A new Survey Monkey poll finds that 50 percent of Americans disapprove of Trump’s performance as president, versus 48 percent who approve. Note this:
Trump’s support is softer than the opposition. More say they strongly disapprove (38 percent) than strongly approve (27 percent), with just over one in five Americans (21 percent) saying they approve of Trump, but only somewhat.
Meanwhile, Gallup tracking also has Trump’s disapproval hovering at around 50 percent or higher. Not that there’s any chance that Trump will even entertain the possibility that these numbers reflect real public sentiment. …
* MANY LIBERALS PLAN TO STEP UP POLITICAL ENGAGEMENT: A new Washington Post poll finds that large percentages of liberals and Democratic women plan to step up their political activism:
The poll finds 40 percent of Democratic women say they will become more involved in political causes this year, compared with 25 percent of Americans more broadly and 27 percent of Democratic men. Nearly half of liberal Democrats also say they will become more politically active, as do 43 percent of Democrats under age 50. Interest in boosting activism is far lower — 21 percent — among independents and Republicans alike.
Good to see. The Trump presidency is boosting and broadening political engagement — let’s hope it can be sustained.
* AMERICANS SUPPORT THE WOMEN’S MARCHES. REPUBLICANS DON’T: The new Post poll also finds that 60 percent of Americans support the women’s marches — including 58 percent of independents. But 59 percent of Republicans oppose the marches. And that includes 66 percent of Republican women.
* BERNIE SANDERS VERSUS TED CRUZ!!! Next week, Bernie Sanders and Ted Cruz will square off in a debate on CNN over the future of the Affordable Care Act. There will be a lot of chatter about how Sanders was critical of the ACA during last year’s Democratic primary.
But Sanders is a very effective advocate for the law, despite his belief that it didn’t go far enough. And this may have the salutary effect of increasing engagement on the part of the left — and Sanders supporters — in the fight to save Obamacare.
* INSIDE STEVE BANNON’S WORLDVIEW: The Post has a terrific look at years of Steve Bannon radio interviews and speeches that shed light on his worldview, which is now shaping Trump’s agenda:
That worldview … hinges largely on Bannon’s belief in American “sovereignty.” Bannon said that countries should protect their citizens and their essence by reducing immigration, legal and illegal, and pulling back from multinational agreements. At the same time, Bannon was concerned that the United States and the “Judeo-Christian West” were in a war against an expansionist Islamic ideology — but that they were losing the war by not recognizing what it was.
The two key ingredients: The desire to wall off immigration and trade; and the belief that we’re embroiled in a global, perhaps existential showdown with Islamo-facism.
* QUOTE OF THE DAY, BOTTOMLESS CYNICISM EDITION: Mitch McConnell released a statement calling on Democrats not to filibuster Gorsuch:
I hope members of the Senate will again show him fair consideration and respect the result of the recent election with an up-or-down vote on his nomination, just like the Senate treated the four first-term nominees of Presidents Clinton and Obama.
Those “four” leave out Merrick Garland, the choice of the winner of the 2012 election, who didn’t get any hearing from Republicans at all for months, keeping empty the seat Democrats now must fill to “respect the result of the election.”