Trump Picks Neil Gorsuch for the Supreme Court

The name of the presumptive next associate justice of the Supreme Court has been announced by President Donald Trump, and it's federal appeals court judge Neil Gorsuch. First appointed to the bench in 2006, Gorsuch has a fairly typical resume for a justice. He took his law degree at Harvard (graduating the same year as Barack Obama), so if he's approved, he will maintain the Ivy League's monopoly on the Court. Gorsuch clerked for two justices, Byron White and Anthony Kennedy, spent a decade in private practice, and has written books on term limits and state-assisted suicide. At 49, he is the youngest nominee to the Court since Clarence Thomas was tapped 25 years ago at the age of 43. He would thus be in a position to shape the nation's jurisprudence for the next three decades or more.

Philosophically, Gorsuch is very much in the mold of the man he is slated to replace, Antonin Scalia. He regards himself as an originalist and a textualist, laments "judicial activism," and has earned raves for his well-written opinions. He holds conservative views on most of the major issues that might come before the court; to wit: he's sided with Christian employers who don't want to provide birth control, he supports Citizens United, he favors the death penalty, he prefers to curtail federal power in favor of states' rights, he likes term limits, and he opposes euthanasia. The latter point is a significant one; in his book on the subject, he wrote that "all human beings are intrinsically valuable and the intentional taking of human life by private persons is always wrong." Because Gorsuch has never ruled on an abortion-related case, this is the best available clue as to where he stands on Roe v. Wade.

After Gorsuch's name was announced, the various players in this drama performed as expected. The nominee himself pledged that, "I will do all my powers permit to be a faithful servant of the Constitution and laws of this great country." Trump bragged about the theatrical elements of the announcement, asking the audience, "So was that a surprise?" He also declared that, "I only hope that both Democrats and Republicans can come together for once, for the good of the country." Strong words for someone who hasn't exactly made a habit of reaching across the aisle. Republicans praised the pick, with Sen. Ted Cruz (R-TX), for example, calling it a "home run." Conservative groups have already begun planning a $10 million advertising campaign in support of the nominee. Democrats slammed the pick, with House Minority Leader Nancy Pelosi (D-CA) describing it as "a very hostile appointment." Liberal groups have already issued numerous condemnations, and protests are once again being planned.

Interestingly, while Donald Trump's base is certainly happy at the selection, the pick appears to have been made primarily with an audience of one in mind: Anthony Kennedy. Kennedy is currently the swing vote on the court, is 80 years old, and is considering retirement. The presumption is that he will be more comfortable exiting stage right if the new justice is someone he knows (e. g., a former clerk) and is not a rabid conservative activist like, say, William Pryor. Trump is very much hoping that Kennedy will throw in the towel, and thus provide an opportunity to truly remake the court for a generation or more.

At this point, the ball is in the Democrats' court. Assuming no skeletons emerge from Gorsuch's closet, he's going to get all 52 GOP senators' votes. Democratic senators from red states who face reelection in 2018, like Heidi Heitkamp (ND) and Joe Manchin (WV), will likely also be given clearance by Senate Minority Leader Chuck Schumer (D-NY) to vote for confirmation. However, GOP + red-state Democrats will not be enough to reach a filibuster-ending 60 votes. So, the blue team could choose to draw the line here, and obstruct Gorsuch for a year, two years, or more. In that case, Senate Republicans would either have to kill the filibuster for SCOTUS nominees (which they don't want to do), or accept an eight-person court for the foreseeable future. The other alternative for the Democrats is to give Gorsuch the third degree and then to grudgingly approve him. In that case, the balance of the Court would not be changed from where it's been for the last two decades, and the blue team could save their filibustering ammo for the next nominee, who is likely to be a real doozy, if and when he comes. Indeed, if the other eight members of the Court hang on until after the midterm elections, then a filibuster that extends to 2020 would not be materially different than what the GOP did last year. In any case, which path the Democrats choose is anyone's guess; they probably don't yet know themselves. (Z)

Jeff Sessions' Committee Vote Postponed until Today

President Trump's unexpected firing of Acting Attorney General Sally Yates on Monday resulted in a contentious battle in the Senate Judiciary Committee yesterday over the confirmation of Sen. Jeff Sessions (R-AL) as attorney general. The Democrats strongly objected to the firing, pointing out that the attorney general is the people's attorney, not the president's attorney, and is not supposed to take orders from the White House. Trump fired her for standing up to him.

Ironically, in 2015, during Yates' own confirmation hearing before the Senate, Sessions grilled her on whether she would be independent of the president and resist carrying out unlawful orders. She said she would. Sessions was content to know she would stand up to the president when necessary. Now the shoe is on the other foot, and Democrats on the committee are not convinced that Sessions would be willing to oppose Trump if instructed to do something unlawful. One after another, the Democrats pounded Sessions, saying that they had no confidence that his primary loyalty would be to the law or the Constitution. The committee vote is scheduled for this morning at 10:30 a.m. (V)

Democrats Boycott Senate Finance Committee Votes on Mnuchin and Price

The Senate Judiciary Democrats aren't the only ones who were furious Tuesday. Democratic members of the Senate Finance Committee boycotted yesterday's expected vote on two cabinet nominees, Steve Mnuchin for secretary of the treasury and Tom Price for secretary of HHS. Instead of attending the meeting, they went down the hall and held a press conference where they accused the nominees of trying to mislead the committee.

The specific objections to Mnuchin include his failing to list about $100 million in assets and at least one outside position he holds on his disclosure form. He also misled the committee about whether a bank he once owned used robo-signing of foreclosure documents, which would have invalidated them. Price's problem is more mundane: He denied that he bought stock in a biomedical company at a discount at a time he was about to introduce legislation that would help the company. The company contradicted him and said it offered him stock at a discount, an offer than fewer than 20 people were given.

Sen. Ron Wyden (D-OR), the ranking member of the Senate Finance Committee, said: "Ethics laws are not optional, and nominees do not have a right to treat disclosure like a shell game." Sen. Sherrod Brown (D-OH) went even further than Wyden and said: "We have great concern that Sen. Hatch is asking us to vote on two nominees today who have out-and-out lied to our committee." Although Republicans have a majority on the committee, the quorum rules require at least one Democrat be present, so if all the Democrats continue to boycott the committee's meetings, Chairman Orrin Hatch (R-UT) cannot call for a vote and the nominees cannot be confirmed.

This could be the start of all-out resistance from Senate Democrats to Trump and his plans. If they really want to go to the mat, Senate procedures make it possible for even a single senator to throw so much sand in the gears that the Senate grinds to a halt. In particular, almost everything the Senate does requires unanimous consent, so any senator withholding consent can bring the Senate to a halt. In the case of Mnuchin and Price, the objection is not that they are too conservative, but that they effectively perjured themselves. Whether the Democrats will put up as much resistance when they merely oppose the nominee's views, is another matter. (V)

Betsy DeVos Approved by Committee on Party-line Vote

Unlike nominees Sessions, Mnuchin, and Price, one of Donald Trump's nominees was approved by a Senate committee yesterday. The nominee is Secretary of Education-designate Betsy DeVos, who was approved by the Senate HELP Committee on a straight party-line vote, with all 12 Republicans voting for her and all 11 Democrats voting against her. The revelation on Tuesday that DeVos plagiarized portions of her pre-hearing questionnaire was apparently not enough to sway any GOP senators into voting against her. DeVos' nomination will now go to the full Senate where approval is expected, probably also on a straight party-line vote. (V)

Another Campaign Promise Bites the Dust

During the campaign season, Donald Trump promised to get tough with America's pharmaceutical manufacturers, and to use the United States government's largesse to wrangle better prices on prescription drugs. This is plausible (European governments do it), though would require overturning a George W. Bush-era law the forbids this particular kind of negotiating.

In any case, anyone who thought this was actually going to happen should take a look at our list of bridges over the East River that we have for sale. On Tuesday, Trump met with a group of pharmaceutical bigwigs, and there was zero talk of negotiating better prices. Instead, the discussion focused on tax breaks and reducing regulatory barriers. "We have to get rid of a tremendous number of regulations," Trump said. "I know you have some problems where you cannot even think about opening up new plants. You can't get approval for the plant and then you can't get approval to make the drugs."

It's certainly true that the FDA is more conservative in granting approvals than the equivalent bureaucracies in most other nations. It's also true that there is reason for their conservatism; they want to make sure that (1) the drug actually does what is claimed, and (2) the drug doesn't have problematic side effects. One hopes that before any changes are made, legislators reflect carefully on the long list of drugs that proved to be very problematic after they were made widely available. (Z)

Four States Sue Trump Administration

When Barack Obama was president, red states regularly sued him over a variety of issues, so it is not surprising that blue states have decided to sue Trump. Yesterday, the attorneys general of New York, Massachusetts, Virginia, and Washington joined lawsuits already filed in their states by the ACLU. The suits claim that Trump's executive orders to ban immigrants and visitors from seven majority-Muslim countries violates the law and the Constitution. Although Islam is not mentioned in the executive orders, Trump has repeatedly said the intention was to ban Muslims, and the attorneys general are certainly going to use that in their briefs, claiming it violates the Constitution's "establishment of religion" clause.

To a considerable extent, the Republican suits against Obama paved the way for these actions, among other things, establishing a basis for the states to sue the federal government. With that said, Trump is piling up lawsuits at an alarming rate. By this time in his presidency, Obama had been sued 11 times, mostly over questions related to his birth certificate. Trump, by contrast, has already been sued 41 times, primarily over the immigration order, but also for defamation, for his orders related to the Keystone pipeline, and for violation of the emoluments clause. The government's lawyers are going to be earning their pay in the next four years. (V).

EU President Slams Trump

Donald Trump hates the European Union. And, the safe assumption would be that the leaders of the EU don't much care for Donald Trump. That assumption was confirmed on Tuesday, when EU President Donald Tusk penned a letter to EU members condemning The Donald in no uncertain terms: "The change in Washington puts the European Union in a difficult situation; with the new administration seeming to put into question the last 70 years of American foreign policy."

Thus far, most European leaders have played it close to the vest, for fear of reprisal from the Trump administration. Tusk has nothing to lose, however, so he might as well lay his cards on the table. It is widely presumed that, given that Tusk has his finger on the pulse of European politics, his words reflect the views of individuals who cannot yet afford to speak openly (e. g., Angela Merkel). The nations of Europe have several pressing concerns about Trump—they are afraid he will weaken NATO, and allow Russian power to expand in the region. They are concerned he will destabilize trade agreements between the U.S. and the countries of Europe. And they also fear Steve Bannon, along with the aspirations of Breitbart News to expand throughout the West, spreading its particular mix of fake news, barnburning, and conspiracy theories. The odds are looking pretty good that the relationship between the U.S. and Western Europe is about to reach its lowest point since before World War I. (Z)

Republicans Plan to Sell Off 3 Million Acres of Public Land

The federal government owns a lot of land in the West, and a new bill introduced by Rep. Jason Chaffetz (R-UT) aims to sell off 3 million acres of it, an area the size of Connecticut. Chaffetz said that the land serves no public purpose. Much of the land already has mixed uses, including oil and gas drilling and timber operations, but it is also open to campers, cyclists, and others who enjoy outdoor activities. In addition, some of the land is inhabited by elk, pronghorn, and big-horned sheep.

The land is in ten Western states: Arizona, Colorado, Idaho, Montana, Nebraska, Nevada, New Mexico, Oregon, Utah, and Wyoming. Surprisingly, the sale is not expected to raise much revenue for the federal government, because much of the acreage has "impediments to disposal," such as hosting endangered species. (V)

Poll: Nation Sharply Divided on Muslim Ban

A new Reuters/Ipsos poll released yesterday shows that 49% of Americans strongly or somewhat agreed with Donald Trump's executive order to ban people from seven Muslim-majority countries from entering the U.S. In contrast, 41% strongly or somewhat disagreed. Other findings are that 31% feel more safe since the order was given and 26% feel less safe. In addition, 38% said the U.S. is setting a good example on how to best fight terrorism and 41% said it shows a bad example. (V)

Trump's Voter Fraud "Expert" Is Registered in Three States

Gregg Phillips is, at the moment, smack dab in the middle of his 15 minutes of fame. He's a low-level Republican operative who used Twitter to promote his belief that 3-5 million undocumented immigrants voted for Hillary Clinton in November, thus depriving Donald Trump of a popular vote victory. When Trump latched onto Phillips' tweets, a (short-lived) star was born.

The case that Trump and Phillips are both making, without providing a whit of evidence, is that large numbers of voters were registered in different states, and so were able to vote twice. This theory does nothing to explain how undocumented immigrants could manage to register once, much less twice. Nor does it explain how people managed to find time to travel to two different polling places in the same day, often hundreds or thousands of miles apart from one another, just to register a +1 out of 65 million.

In any event, critics of this conspiracy theory have pointed out that many members of Donald Trump's inner circle are (or were) registered in multiple states, including his daughter Tiffany, Secretary of the Treasury-designate Steve Mnuchin, and Senior Adviser Steve Bannon. And, as it turns out, Phillips can do them one better, because he is registered in three different states: Alabama, Texas, and Mississippi. Of course, he did not vote in all three places (though he could have), he voted in one of them (Alabama). What this all demonstrates is that: (1) It's neither illegal, nor particularly unusual, for people to be registered in multiple states; (2) Those who are multi-registered rarely or never take advantage; and (3) It's not just Democrats who end up in this situation. Of course, these rather obvious conclusions presumably all flew over Phillips' head. (Z)

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---The Votemaster and Zenger