Throwing Cold Water on the Gorsuch Appointment

Alexandra F. Baldwin

Nearly three months after the election and two weeks past inauguration, Donald Trump continues to drive a wedge between conservative factions in a way that no candidate in recent memory has been able to do. Debate over the appropriate way to oppose, tolerate, accept or support the President seems to rage in all corners of the conservative world.

The total and complete meltdown of the left has supplied conservatives with some hilarious fodder over which they have bonded in shared exuberance, papering over some of their divisions. But the underlying rifts can still be exposed in an instant. This week’s example is President Trump’s nomination of Neil Gorsuch to fill the Supreme Court vacancy created when Antonin Scalia died last February.

There seems to be little argument over the merits of the selection: in fact a cursory search does not turn up even a single negative comment from any conservative commentator on the pick. There are even non-conservative voices noting that, while Gorsuch will undoubtedly move the court to the right, the selection is probably the best that Democrats could reasonably hope for. That, however, is not enough for many on the right…they also feel the need to argue intensely over how much credit belongs to The Orange One on this.

To Trump’s defenders, this justifies his entire Presidency and proves once again that those annoying #NeverTrumpers were just plain wrong about the Donald. Insufferably stupid pundit Sean Hannity, Brigadier General of the Cheeto Army, took the opportunity to gloat, asking “…Will NRO Weekly Standard WSJ Snobs apologize to Trump voters [sic]?” The implication is that the warnings about Trump - that he doesn’t hold conservative values and will appoint crazy, liberal judges - have been proven to be overstated.

For Trump’s critics, this falls into the category of blind squirrels being able to read clocks and mix metaphors like nuts twice a day. It is one solitary decision that would have been hard to botch and we shouldn’t, in the words of some insightful Twitterati, celebrate him for “using the big boy potty”.

Certainly, some of the latter is an unwillingness to admit that Trump can do anything right, let alone something as legacy-building as a Supreme Court decision. However, much of it is a sentiment that I agree pretty strongly with: this does almost nothing to reassure me that he is anything more than the bumbling fool I thought him on Monday.

Is Neil Gorsuch a good selection to sit on the Supreme Court? I will not pretend to be an expert on this, but the opinion of the people that I trust on this subject is almost universal: he is smart, fair and entirely capable to sit on the court. Our own @molratty cited at least one reason for optimism at his appointment. So, in short, yes. But am I willing to heap praise on Donald Trump for appointing him? Not so fast.

There is very little that Presidents do that is easier than making a good Supreme Court appointment. The pool of available candidates is well-known to court observers, their feelings on major issues of law are usually spelled out at length in their written opinions, and any President willing to listen to his well-researched advisors should have no trouble picking someone who espouses the ideals that he or she holds. I suppose it is something of an upset that Trump actually listened to his advisors and didn’t appoint Judge Reinhold, but that is an extraordinarily low bar for a President.

Mostly, what I reject is the notion, forwarded by Hannity and many others, that picking a Supreme Court Justice represents an ability to be “good on judges” and to fill the Federal bench with judges who respect the Constitution. This is the first (and easiest) of Trump’s picks, and while it is the single most important one, it pales in comparison to the collective weight of his remaining picks.

As of today, there are 127 vacancies on Federal courts other than the Supreme Court – 21 on Circuit Courts, 104 on District Courts and two more at the Court of International Trade. With a friendly Senate and reduced powers of filibuster for the minority party, we can expect President Trump to issue a wave of appointments unlike any President in memory.

In addition to the current vacancies, there is normal turnover on the Federal Bench. For the last forty years, Presidents have appointed Federal Judges at a rate of about 47 per year. So, while we all speculate about Ruth Bader Ginsburg’s health, we can be much more certain that there will be somewhere around 180 new openings on lower courts.

These are the courts that rule on major issues before the Supreme Court ever sees them, and the courts that set the framework under which the Supreme Court accepts cases. In many cases, they make rulings that the Supreme Court never even reviews. Lower Federal Courts hear 60,000 cases per year, about 75 of which will then be heard at the Supreme Court. For more than 99% of cases that are adjudicated in Federal Courts, these lower courts represent the final, irrevocable decision.

Donald Trump stands to appoint nearly 300 people to those seats in his first term as President, filling or replacing more than one third of the current bench. Unless he randomly starts a war with Russia or China or Iran, this will be the biggest piece of his enduring legacy as President. And unlike picking a single high-profile Supreme Court Justice, it is really, really hard.

Appointees to these positions often don’t have extensive records. They may already be judges, but they may also be practicing attorneys with any one of thousands of specialties. Or law professors or other non-practicing professions where their judicial philosophy is much less-defined than the candidates for Supreme Court. It is unlikely that the President or even his close advisors has met the candidate at any length.

Let’s imagine you are a basketball scout, and you have your pick of two jobs. The first is to make a one-time selection to fill a single vacancy on the Men’s National Basketball team because someone (let’s say Carmelo Anthony) has left the team. The second is to be head of recruiting for a mid-level college basketball team on an ongoing basis, like Butler or Xavier or Wichita State.

I know very little about basketball other than what my best friend just told me to make up this example. But even I could probably fumble my way to “Hey, let’s call LeBron James and see if he wants to play!” as a solution to the first. Even if that doesn’t work, I could ask any basketball fan and he or she can help me look around and announce that I was appointing Kawhi Leonard to the squad. There are several different directions that I could take, and any one of them is likely to elicit positive results. It is not a hard choice.

Now, let’s look at the other job, which is going to require sorting through hundreds or thousands of high school athletes playing in disparate places against varying degrees of competition. Our scout needs to both identify talent that will be able to succeed at a level far above and beyond the competitive level at which we get to observe them, and then we need to convince them to come to our school.

Picking Supreme Court justices is like calling LeBron James or Kawhi Leonard. It is easy, there are multiple correct choices and it draws the kind of accolades that President Trump craves. Recruiting for a mid-level college program is like picking lower court justices. It requires identifying people who will be good at a new role they’ve never been in before, and many of the potential candidates might not even be interested in the job. It also doesn’t draw much attention to a President, which makes it unlikely that ours will give it much thought.

The truth is that most Presidents are flying blind on this and rely heavily on their teams to vet and recruit candidates for this position. The issue with Trump is that he doesn’t have a great record of hiring great advisors, or of listening to his good advisors, or of making reasoned and rational but boring decisions. His personal profile and his history say that these jobs will go to donors, friends and flatterers. This is a core principle of being an executive, and Trump is simply not very good at being an executive.

Might he prove to be a better, more diligent selector of lower court judges than I think? It’s possible, I suppose. But I have a hard time believing that a man who proselytizes for a more powerful state, diminished liberties, a more powerful executive branch and a larger, more invasive government is going to thoughtfully select judges who disagree with that vision.

So, go ahead and celebrate this selection. For conservative #NeverTrumpers, there is no reasonable criticism of the decision. Just remember that this is the lowest of low-hanging fruit, and the outlook for the upcoming broad remaking of the Federal Court remains very poor.