Et Tu, Gorsuch?

No matter what goes wrong during President Donald Trump’s time in office, his die-hard supporters will tell you that it’s all worth it for the judges he appoints. He put conservative originalists Neil Gorsuch and Brett Kavanaugh on the Supreme Court, and that alone is enough to satisfy the fans.

The Supreme Court’s recent ruling on the case of Bostock v. Clayton County, however, has soured some of the faithful on Gorsuch. After hearing the case the Supreme Court concluded that the Civil Rights Act of 1964 says lesbians, homosexual men and transgendered people cannot be fired because of their sexual activities or what sex they consider themselves to be, which is making many religious right types unhappy, and Gorsuch not only joined the court’s four liberal justices in the majority but also wrote the opinion.

Some of the religious conservatives who support the conspicuously irreligious president will admit they oppose the decision because they want to be able to fire any sexual deviants they might have inadvertently hired, and needlessly worry that churches won’t have the exceptions they’ve always enjoyed, but others couch their complaints in terms of judicial overreach. We don’t see any reason for anybody to fire anyone for their private sexual conduct or their opinions about their sex, but there is some merit to the argument about the court amending laws by judicial fiat.

The Civil Rights Act of 1964 makes no mention whatsoever about homosexuality or transgenderism, which is not surprising given the time when it was passed. Back in ’64 gay rights weren’t a big issue, and nobody had even heard of transgenderism, and if the bill did include such language it would have been so controversial the bill wouldn’t have passed. A more up-to-date Congress could have added those protections to the law, but has declined to do so, so our strictly constitutionalist sensibilities are also offended by any court usurping the legislature.

In his writings and speeches and past rulings Gorsuch has long claimed to be a “textualist,” meaning that the believes courts should interpret a statute by it’s plain and not infer any intentions the lawmakers might have had, and certainly not assume what they might have thought after 56 years of social evolution, so his siding with the majority in this case is surprising. Our reading of the lengthy opinion doesn’t provide us with a convincing explanation for his change of mind.

Conservatives have long been disappointed with Republican-appointed Supreme Court justices, going all the way back to President Dwight Eisenhower’s choice of Chief Justice Earl Warren, who presided over a court that expanded civil rights and limited police powers, and continued with President George W. Bush’s choice of Chief Justice John Roberts, who infuriated conservatives by declining to find “Obamacare” unconstitutional. Gorsuch is just the latest in a long line of Republican appointees who have disappointed Republicans.

Should Gorsuch get back to his textualist roots, though, he might wind up disappointing Republicans even further. Trump has a number of legal cases involving everything from his immigration policies to his tax returns and alleged cases of sexual misbehavior winding their way through the court system, and a strict textualist might rule against him in several of those cases. There’s a nearly 100-year-old and long upheld law that lets Congress look at any American’s tax return, for instance, and the text does not include any exception for presidents, so it will be interesting to see how the Trump appointees rule in that case.

There are countless federal statutes that are very liberal, and the Constitution also has some very liberal language, and a sincerely originalist and textualist jurist would leave it to the legislative and executive branches to rectify that, even if the Trump era sort of conservatives would prefer that the courts bang a gavel and return America to 1964, or better yet 1954, before all that civil rights legislation and litigation. Most people don’t care so much about constitutional arguments and just want the courts to deliver their preferred policy, so our guess is that Republicans will once again be disappointed in their party’s Supreme Court picks, and Trump supporters will be disheartened.

— Bud Norman

Gorsuch and Nonesuch

So far President Donald Trump’s travel ban is still being held up in court, his repeal-and-replace plan for health care seems lacking some crucial Republican votes, the budget proposals are widely opposed and the “tweeted” accusations of treason are getting much ridicule and little support, but at least the nomination of Judge Neil Gorsuch to the Supreme Court is going well.

The Democrats and the rest of the left are doing their best to stop it, as tradition requires the opposition party to do, but they don’t seem to be having much luck. They’ve objected to the fact that Gorsuch is an admitted “originalist” in his judicial philosophy, but that basically means he believes the Constitution says whatever a plain reading of it written words say, and ever since Franklin Roosevelt tried to pack the court the Democrats have had a hard time time selling the idea it should say whatever they want it to say at any given moment. There have been no revelations of financial entanglements or college dope-smoking incidents or any of the other assorted scandals that have sunk past nominees, his long history of voting with majority and unanimous decisions during a long tenure as a circuit court judge makes it hard to cast him as any sort of scary extremist, and his performance in the confirmation hearings has been as flawlessly careful and noncommittal and yet exceedingly charming as any we can remember. The Democrats have been frustrated that Gorsuch wouldn’t pre-judge any hypothetical cases for them, just as the Republicans were when they grilled past Democratic nominees, but we don’t expect that the general public will mind that Gorsuch has been answering all the questions exactly as Supreme Court nominees are supposed to do.

The Washington Post’s Dana Milbank was reduced to complaining that Gorsuch seemed all too reasonable and downright personable during the hearings, and was sure that such “archaic phrases” as “goodness” and “since I was a tot” and “give a whit” would only be used an Eddie Haskell sort, who was a smarmy character on “Leave It to Beaver” that only the most archaic pop culture commentators remember. The late-night comedy program “The Daily Show” and its African host sneered that such expressions showed how very white Gorsuch is, but we doubt that most Americans would find that a disqualifying quality in a Supreme Court nominee and we’re quite sure that Trump’s most loyal supporters would find it endearing. Of the thousands of cases Gorsuch have heard the Democrats seized on one where he voted against a truck driver who had violated company policy and wound up frozen as a result and then sued over being fired, but of course the case was complicated and not the sort of thing that be easily conflated into a coming reign of judicial terror.

All the late night comics and the rest of the Democrats have had a far easier time scaring people about the rest of what Trump is to, but they inadvertently allowed Gorsuch to reassure the public about that. He’d already been quoted by anonymous sources as telling Senators that he was “disheartened” by Trump’s attacks on a “so-called judge” and the authority of the judiciary, but reiterated the sentiment under oath, carefully declined to answer any questions about how he might rule in a hypothetical case involving Trump and the Emoluments Clause of the Constitution or any of the other many things that might very well come up in the next four years, and somehow left a clear impression that Trump won’t be able to count on him if the facts and the law of a case favor the other side.

That willingness to defy Trump, along with all the aw-shucks demeanor and apparent reasonableness, have convinced some of Trump’s supporters that he’s picked another one of those squishy Supreme Court Justices that more establishment sort of Republicans have been picking for decades, and they’re still holding out for someone more snarling, but we doubt they’ll derail the nomination. Meanwhile all the Democrats are still made that President Barack Obama’s pick for the post, whose name was Merrick Garland or Garland Merrick or something, didn’t get a confirmation hearing at all, because it was blocked the Republican congressional leadership that all of Trump’s most avid fans hated for caving into everything Obama wanted, so it would be fun for almost everyone if a Supreme Court Justice Gorsuch did wind up ruling against some Trump overreach.

All the big press outlets seem resigned to Gorsuch’s nomination, and mostly unwilling to expend any of their diminishing capital of credibility on trying to portray him as a scary sort of extremist who’s going to bring back Jim Crow and back-alley abortions and all the stuff they once threw at Judge Robert Bork, whose last name is now a verb for such character assassination, so we expect this will be a win for Trump. That’s fine by us, and if it leads a few losses for Trump down the road that will also be fine.

— Bud Norman