First, Gorsuch would replace the late justice Antonin Scalia, effectively retaining the status quo on the court. He brings conservatives no closer to overturning Roe v.Wade or gay marriage. Should no liberal justice or Justice Anthony Kennedy, often the fifth vote in 5-to-4 cases, fail to outlast Trump, he will have made no difference whatsoever in the direction of the court. To the extent Trump’s cavalcade of disasters make it more likely he will be a one-term president, he increases the chances future vacancies will be filled by a Democratic president.
Second, there is no tradeoff here. If Trump helps cement his brand of xenophobic, anti-democratic populism here and abroad, the damage to the United States and the West more generally will dwarf anything a conservative justice could possibly accomplish on the court. Put differently, world chaos and the collapse of the liberal democratic order represent too high a price for a conservative replacement for Scalia.
Third, we can see with Trump’s executive orders (and the non-response from spineless Republican congressional majorities) that the elected branches’ disregard for the rule of law and basic human decency pose a much greater threat to our democracy than the courts. We should remember the reaction of Trump’s intellectual forebear President Andrew Jackson regarding a ruling from the Supreme Court led by Chief Justice John Marshall:
Marshall infuriated Jackson by insisting that Georgia laws that purported to seize Cherokee lands on which gold had been found violated federal treaties. Jackson is famous for having responded: “John Marshall has made his decision, now let him enforce it.” Although the comment is probably apocryphal, both Georgia and Jackson simply ignored the decision.
Contempt for the rule of law troubles us far more than the composition of the courts.
Fourth, conservatives put too much reliance on the courts to rescue them from executive and legislative policy results and from public opinion. Even if the court — and I find it nearly impossible to imagine — would reverse the decision on gay marriage, gay marriage will have been in effect (with no great damage to heterosexual marriage) in all 50 states. It strains credulity to imagine states would reverse course and nullify existing marriages or sustain anti-gay-marriage laws in the face of popular and business backlash. One need only look at the North Carolina bathroom law and the ensuing defeat of Gov. Pat McCrory (R) to see how politically preposterous a much more radical rollback in law would be.
Fifth, let’s suppose Hillary Clinton had won. A GOP Senate still would have been able to block a super-liberal judge. (Indeed, sources tell me that conservative legal groups were planning to urge the GOP to hold out for a full four years in order to deny Clinton her pick.) Most likely, the result would have been nomination of a mild-mannered or eclectic justice in the mode of Kennedy, someone highly unlikely to rip up decades of conservative-friendly precedent.
It is a measure of how disastrous Trump’s presidency has already been that his apologists would seize on Gorsuch’s nomination to minimize the parade of horribles we have seen. One wonders how far this will go. If Trump drives us into a trade war and recession, or cements rather than repeals and replaces Obamacare, or condones Russian manipulation of a slew of European elections and further aggression, will they still say, “But we have Gorsuch!”? Sorry, but no justice makes up for the damage Trump is doing to America and the Free World.