Justice Neil Gorsuch has finally arrived at the “show;” now he has to start producing.
An old adage goes that once you reach the big leagues everybody’s good when you get there. Considering the enormous amount of time and effort it takes to become a professional athlete, if you’re good enough to earn a place in the top echelon of competition there are no sad saps or shirkers waiting to make it easy for you.
If you don’t believe it, just ask Tim Tebow. The former Heisman trophy winner and two-time college national champion and first-round NFL quarterback is trying for a second career in professional baseball. Thus far Tebow’s been assigned to Class A ball in South Carolina. For those of you unfamiliar with baseball hierarchy, that’s at least three steps below the major leagues. There are an awful lot of talented players in front of him.
It may be a bit of a stretch but Gorsuch could be experiencing a similar pro athlete-like feeling this week as he assumes his lifetime seat on the Supreme Court and begins hearing cases at the highest level for the first time. There aren’t any “easy” issues when a case reaches the Supreme Court and everyone needs to be at the top of their game.
Right off the bat, Gorsuch could be the key to deciding a crucial religious liberty case, too.
Ryan Lovelace of the Washington Examiner reports, “For the first time in more than a year, the Supreme Court will hear oral arguments this week with the full complement of nine justices. Oral arguments in Trinity Lutheran Church of Columbia v. Comer will be held Wednesday, when the high court will seek to decide whether Missouri violated the Constitution in its decision to bar a church from a state program that gives nonprofits funding to resurface their playgrounds. Missouri's Constitution includes a provision that prevents public funds from directly or indirectly assisting any church, sect or religion.
“The high court's ruling in the Trinity Lutheran case could have a widespread impact on the three dozen other states with similar provisions in their state constitutions, and the decision could be narrowly decided.”
According to Lovelace’s article the Court originally decided to take the case before Justice Antonin Scalia passed away last year. Chief Justice John Roberts (who sets the Court calendar) may have put oral arguments on hold to wait for a ninth justice because the case is shaping up to be another 4-4 liberals vs. conservatives battle that’s become all too common in the past couple decades.
Of course there are no guarantees but it’s likely Gorsuch will side with the conservatives on the case (Thomas, Alito and Roberts) since that’s almost certainly what Justice Scalia would have done.
Gorsuch spent a decade at the federal appeals level (the “minor leagues”) so he’s certainly familiar with the way such cases are handled from a procedural standpoint. The routine isn’t much different on the Supreme Court, though the “competition” is more intense. Decisions have consequences and there aren’t any “easy” issues.
How Gorsuch will fit in on the Supreme Court is all just speculation at this point and in truth, we won’t know for months (if not longer) which faction he’ll team with most of the time. One case does not make a career and even if the new justice rules in a manner inconsistent with Scalia’s viewpoint doesn’t mean he’s automatically a liberal or a swing-vote.
Justices typically take an adjustment period before they develop their own philosophies and styles. Justice Scalia, for example, was famous for badgering and bantering with attorneys arguing before the bar. Justice Clarence Thomas is at the opposite extreme. In fact, Thomas went almost ten years without asking any questions during oral arguments, a streak he broke last February, shortly after Scalia’s death.
In the Court arguments I’ve witnessed in person Scalia gave little room for attorney maneuvering. He truly put on a show every time he donned the black robe.
Some suggest that because Gorsuch was once a clerk for Justice Anthony Kennedy that he could be influenced by the senior justice. Seeing as Kennedy is known as the Court’s “swing-vote” the thought is troubling to conservatives. Time will tell if that’s the case.
Other new justices have been known to form alliances with familiar colleagues. Perhaps the most famous were the “Minnesota twins,” Chief Justice Warren Burger and Associate Justice Harry Blackmun (both appointed by President Nixon) in the early 70’s. Both were from Minnesota and Burger had even served as Blackmun’s best man at his wedding.
When Blackmun joined Burger on the Court he voted with the Chief Justice 87.5 percent of the time (his first five terms). Everyone knows Blackmun wrote the infamous majority opinion in Roe v. Wade and over time morphed into one of the Court’s most reliable liberals. By the time he retired Blackmun was siding with the liberal bloc in over 95 percent of cases (thanks, Wikipedia).
It’s doubtful – or at least highly unlikely – Gorsuch will follow a similar path to the Minnesotans, though George H.W. Bush appointee Justice David Souter became a reliable liberal vote over the course of a few terms just like Blackmun.
With Supreme Court justices, you just never know. That’s one of the reasons why considering their overall judicial philosophy and personal background along with their case history is so vital in making appointments to the “big league” Court.
In addition to the important religious liberty case this week, Gorsuch could easily be the deciding vote on another major issue sometime in the near future.
Sean Higgins of the Washington Examiner reports, “Organized labor and its allies in the Democratic Party are bracing for a major hit to union power now that Justice Neil Gorsuch has a seat on the Supreme Court, fearing that he will tip the balance of the court toward overturning key legal precedents that benefit labor…
“The two main cases on the court's horizon that unions are worried about are Yohn v. California Teachers Association and Janus v. AFSCME. Both could overturn a 1979 precedent called Abood that said public-sector workers could be forced to join a union or support one financially as a condition of employment.”
Democrats, including new party chairman Tom Perez, said Gorsuch could make it nearly impossible for public employees to unionize. Aside from the obvious benefits everyone would derive from such an outcome (public employees not being able to unionize, that is) Perez is just blowing smoke. Public employees can still organize regardless, they just wouldn’t be compelled to do so.
Liberals love “choice” except when it involves things like guns or mandatory unionization. They also like forcing people to do things they don’t want to do in order to increase their own political power. Just look at Obamacare and its multitude of mandates. What a collection of hypocrites.
The labor cases cited above are not yet before the Supreme Court but could be soon since Gorsuch would be needed to break a 4-4 deadlock that occurred when the issue came up after Scalia’s death last year.
Needless to say, Gorsuch appears to be a welcome addition to the Supreme Court. The system will function again and hopefully the balance will be in favor of constitutional originalism. Democrats proved during the Justice’s confirmation hearings that they don’t care much about process – they were only interested in ideology.
Gorsuch has now reached the “big leagues”. Now it’s up to him to step up to the plate.
You can’t always define the establishment but you know ‘em when you see ‘em
Speaking of the Supreme Court, there’s a famous quote from centrist “swing-vote” Justice Potter Stewart that’s helpful today. Stewart wrote when trying to define First Amendment protections in film, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description … But I know it when I see it…”
Stewart was talking about pornography, but the same can be said for members of the establishment. You can’t always define them but you know them when you see them.
Such is certainly the case for Arizona Senator John McCain, who has come to embody the disgraced Washington establishment. McCain stepped in it (the swamp) again over the weekend when commenting on President Trump’s seeming switch on foreign policy.
Kathryn Blackhurst of Lifezette wrote, “Ever since Trump ordered an airstrike in Syria in retaliation for the chemical attack that killed more than 80 Syrian civilians earlier in April, he has received increasing praise from the neoconservative wing of the Republican Party.
“When [NBC’s Chuck] Todd pointed to those who say ‘the Washington establishment sucked [Trump] in’ and compromised his conservative populism and ‘America first’ agenda, McCain unequivocally expressed his glee at the prospect.
“’I hope so!’ McCain said before laughing.”
Give McCain credit for his “straight talk” candor; he doesn’t even deny he’s a member of the establishment. Again, you can’t always define them but you know ‘em when you see ‘em.
It’s more than a little strange that people like McCain and other bipartisan adherents to the orthodoxy of the liberal foreign policy establishment now feel such a kinship with Trump since they’ve basically bashed him as an unprepared amateur and potentially dangerously uninformed from the beginning.
If saying you’re against intervening in foreign conflicts with no hint of a resolution makes one unenlightened and claiming you’d prefer to stay out of them is ignorant, the American people chose the unenlightened and ignorant side on this issue in the last election and will likely do so every time given the choice.
McCain and his neoconservative cohorts (like Sen. Lindsey Graham and Sen. Marco Rubio) have made dozens of visits to the Middle East and are somehow convinced if the United States makes even bigger commitments now that somehow peace will finally be achieved. After thousands of years of warfare the facts aren’t on their side.
If Trump is indeed “sucked in” to the establishment it will signal the death knell of his presidency. Trump can say a lot of things and get away with them because he’s still popular with his base, but he can’t afford not to keep what was perhaps his most important promise of all: to drain the Washington swamp.
And you can’t drain the swamp with leftovers from the Bush administration manning the pumps.
Listening to the advice of John McCain and company is a sure way to lose that battle. Establishment “creatures” like to say they know what’s best, but if they’ve been there for decades and just perpetuate all of the problems, they’re toxic and should be avoided.
You know ‘em when you see ‘em. Stay away, President Trump.
Big shock: New poll says GOP is suffering under Trump
Congress has been out of session for the Easter holiday and the news cycle has been slow of late but that’s not stopping political “experts” from taking new poll numbers on President Donald Trump’s popularity and arguing they signal bad news for the Republican Party.
Steven Shepard of Politico reports, “Trump’s approval rating, according to a new Pew Research Center survey released Monday, is 39 percent — precisely the same as two months ago. The percentage of Americans who disapprove of Trump is virtually unchanged: 54 percent, compared to 56 percent in February…
“The most profound shifts in the Pew survey are in Americans’ perceptions of the GOP beyond Trump. Just 40 percent of Americans have a favorable opinion of the Republican Party, down from 47 percent in January, prior to Trump’s inauguration.
“The Democratic Party, however, isn't faring dramatically better — views of the Democratic Party also ticked down from 51 percent in January to 45 percent now.”
Pundits representing both parties will take the raw numbers and make their own arguments as to how significant or insignificant they may be. It won’t really matter. Such surveys are a snapshot of the public’s mood at any one point in time and certainly don’t project out to the next election which is a year and a half away.
One of the things that always strikes me about “popularity” polls is how uniformed the American population is on most issues. Just as an example, the Pew poll found the public trusts Democrats to handle foreign policy 49 to 36 percent. Considering the Democrats do not have majorities in either house of Congress and Trump is in the White House, the Democrats have virtually zero sway over foreign policy.
People either don’t have a clue how things work or they basically don’t trust anyone to handle the issue and were only given three choices by the questioners – Democrats, Republicans or “I don’t know.”
Make whatever you like over these latest poll numbers. The president himself seemed particularly proud of one survey… Mallory Shelbourne of The Hill reports, “President Trump on Monday touted a Rasmussen poll showing his approval rating at 50 percent…
“Rasmussen's Daily Presidential Tracking Poll for April 17 recorded Trump's approval rating hitting the 50 percent threshold for the first time ‘in nearly a month.’”
The Rasmussen poll contradicts several others. The truth is in there somewhere. If Trump sticks to trying to please his conservative and populist base, he’ll be fine. If instead he attempts to be a hipper version of the George W. Bush administration, he’ll end up with the same popularity numbers as the last Republican president. Simple.