The 45th President of the United States just handled one of his gravest responsibilities, the nomination of a Supreme Court justice, with his trademark vulgar and vaudevillian vapidity. Only 11 days into his presidency, Donald Trump’s shtick has become as boring as it is dangerous. If a president’s only duty were to entertain his audience, Trump would already be facing impeachment.
Despite his best efforts, there was no suspense in Trump’s announcement. As predicted, he nominated someone for the Supreme Court whose right-wing notions of “originalism” would suspend our living Constitution in ancient prejudices of race, ethnicity, religion, class and gender.
But cheap tricks like Trump’s live, prime-time Supreme Court announcement do serve a purpose: They distract the public from everything else he’s doing. It’s government by three-card monte, and in this case it draws attention away from the most important fact of all about this Supreme Court seat: The Republicans stole it from former President Barack Obama.
Meet the Finalists
According to unnamed and presumably well-placed sources, Trump asked two finalists to come to Washington, DC. Multiple outlets carried the story, which was presumably crafted to keep the public in suspense about his final choice. CNN Senior White House Correspondent Jeff Zeleny even tweeted that the “White House is setting up (the) Supreme Court announcement as a prime-time contest” by creating “@JusticeGorsuch and @JusticeHardiman identical Twitter pages.”
This routine is common in the world of beauty pageants, which is undoubtedly more familiar to Trump than that of governance. It’s a ritual there: The lucky winner, having survived the final swimsuit and evening gown competitions, accepts her crown as the runner-up offers stoic congratulations.
This is just the beginning, so get used to it: Donald Trump will make every historic moment look like a cheap animatronic re-enactment of itself.
But we’re talking about a seat on a divided Supreme Court, not a year as a “goodwill ambassador,” and the nation is entering a period of chaos and challenge. Trump’s erratic behavior, his sweeping and ill-framed executive orders, and the firing of acting Attorney General Sally Yates have provoked a crisis of confidence and governance; a full-blown constitutional crisis is probably not far behind.
As Law360 reports, Trump told Breitbart News last June that his judicial nominees would be “all picked by (the) Federalist Society,” the far-right legal group that has worked for decades to populate the judicial system with anti-government extremists. Even before we knew the nominee’s name, we knew a lot about him.
And the Winner Is…
The theatrics should have worked. The crowd murmured expectantly as the hour approached. Flags flanked the entranceway where a gold-trimmed red carpet led to the presidential podium. Steve Bannon and Reince Priebus, the twin lobes of Trump’s Republicanism, gave the appearance of chatting amiably until the new president took his place before the cameras.
“This may be the most transparent selection process in history,” Trump boasted.
In an echo of Steve Harvey’s Miss Universe blooper last year, Trump then mangled the actual announcement, saying that he was “nominating Judge Neil Gorsuch of the United States Supreme Court to be of the United States Supreme Court.” (Gorsuch currently serves on the United States Court of Appeals for the Tenth Circuit.)
“Was that a surprise?” Trump asked, trying to drum up enthusiasm like the toastmaster at a junior high school spelling bee. “Was it?”
(Apparently not. A reporter at the scene tweeted that Gorsuch’s name was visible on the teleprompter before Trump took the podium.)
Judge Gorsuch did his best to restore some dignity to the proceedings when he came to the podium, but it was a losing battle.
Gorsuch is telegenic, with silver hair and rugged good looks, and that’s reportedly very important to Donald Trump. He is a hard-core right-winger in the tradition of the late Antonin Scalia. As SCOTUSblog wrote, “some of the parallels (between Scalia’s jurisprudence and Gorsuch’s) can be downright eerie.”
In Gorsuch’s best-known ruling, he upheld the ability of corporations to restrict their employees’ contraceptive and other health coverage on religious grounds. Gorsuch wants to limit the power of federal regulators and has reportedly “criticized liberals” for seeking to address important issues through the court system.
Under normal circumstances, a Republican president could expect a relatively easy confirmation process, even for an ideologically charged candidate like Gorsuch. But these aren’t normal circumstances.
The Stolen Seat
This seat was Obama’s to fill a year ago. But Senate Republicans, led by a cynical Mitch McConnell, robbed him of it while falsely claiming to serve a “principle.”
“This vacancy should not be filled by this lame duck president,” McConnell said last March, adding:
“The American people are perfectly capable of having their say on this issue, so let’s give them a voice. Let’s let the American people decide.”
And yet, when Hillary Clinton looked like the likely winner of last November’s election, at least one Republican senator said that he intended to prevent her from filling that seat.
McConnell never explained his “principle” very clearly. At what point does a president become a “lame duck” and lose the right to fully execute his or her duties? Obama had completed about 75 percent of his second term when McConnell invoked this “principle.” So is it 60 percent of the way through a term? Fifty percent?
Maybe it happens after 10 days. Perhaps the Senate should wait until 2020 and “let the American people decide.”
They did decide, of course. Obama was elected with a clear majority, winning 51.1 percent of the vote. Trump failed to clear that bar, winning only 46.1 percent of the vote. And while it’s not always useful to point out that Clinton won the popular vote—Democrats knew the rules going in, after all—she did win nearly three million more votes than Trump.
McConnell’s “principle” certainly can’t be popularity. When Obama appointed Merrick Garland he had a 50 percent approval rating, with only 46 percent of voters disapproving of his performance. Only four days into his presidency, during what is normally a “honeymoon period” for the new head of state, Trump had already set a new record for public disapproval.
Trump’s disapproval rating have continued to soar—sad!—and now 51 percent of voters disapprove of Trump’s performance, while only about 42 percent approve, according to a recent Gallup poll.
“This is the first time a Senate majority has stolen a seat. We will use every lever in our power to stop this.”
Merkley said he would filibuster, in the words of Politico’s Burgess Everett, “any pick that is not Merrick Garland.” If 41 Democrats agree with him, it will take a Senate rule change to confirm Gorsuch.
House Minority Leader Nancy Pelosi called Trump’s pick “a very hostile appointment” and “a very bad decision, well outside the mainstream of American legal thought.”
Gorsuch’s nomination now goes to the Senate Judiciary Committee, where ranking Democrat Patrick Leahy of Vermont says Trump “outsourced this process to far-right interest groups” and Sen. Sherrod Brown of Ohio had expressed hope for a moderate nominee to show Trump’s “willingness to be bipartisan for somebody that lost the popular vote.”
“This is Justice Scalia’s seat,” conservative activist Jay Sekulow told the New York Times last week. But he’s wrong. It’s the people’s seat. Republicans stole it from the president who was elected to fill it—and, more importantly, from the voters who elected him.