Gorsuch’s First Test? “Disheartening”

I wonder if this isn’t a Harbinger of things to come. Why is everyone so damn spineless when it comes to pushing back against left-wing authoritarians. Have we got another John Roberts on our hands?

The Gorsuch Gaffe

Editorial of The New York Sun | February 8, 2017

JUDGE GORSUCH: His complaining about President Trump to Senator Richard Blumenthal was a gaffe that will be seen as a failure to keep himself disentangled from political questions.

Talk about disheartening. That’s the word President Trump’s nominee to the Supreme Court, Judge Neil Gorsuch, is using to describe President Trump’s remarks in respect of the riders of the 9th United States Circuit Court of Appeals. The president is upset at their politicking over his order to tighten up on immigration. Is the president’s pique so disheartening? Not to us. What’s so disheartening is to see such a promising nominee to the high court lose his bearings in a storm.

What in the world was Judge Gorsuch thinking? President Trump expressed his exasperation with the 9th Circuit’s pettifogging in remarks to police chiefs. The president was right Trumansesque in the bluntness with which he made clear his views of the judges’ shenanigans. Judge Gorsuch then fetched up in the office of the senior Democratic senator from the People’s Republic of Connecticut, and starts wringing his hands about the behavior of the president who nominated him.

It would be surprising to us if by chastising his nominator Judge Gorsuch gained any quarter whatsoever from the Democrats. Not even a micron of a quarter. The opposition senators announced they were against Mr. Trump’s nominee even before his name was put up by the President. It would not be surprising, though, were Mr. Trump to turn around and yank Judge Gorsuch’s nomination and send up to the Senate a candidate who can keep his or her cool.

Certainly Mr. Trump is ahead of his critics in his understanding of this situation — just as he was ahead of the entire Republican field, not to mention the Democratic intelligentsia, in understanding the politics of the 2016 election. Every single voter who cast a ballot for Mr. Trump comprehends that the 9th Circuit is behaving in a political fashion. If it weren’t, the Circuit would have dismissed the lawsuit from the State of Washington for the ideological grandstanding that it was.

Every sentient voter in America gets this. It is hard to think of a campaign promise in the whole history of the Republic that was more clear than Mr. Trump’s vow that he was going to tighten up on immigration until he can get a handle on the situation in the middle of this war. So what if it wasn’t everyone’s priority. That it was one of the mandates the voters gave to the winner of this election is unmistakable. Since when did it become unconstitutional to keep campaign promises?

There used to be a concept in law that political matters were non-justiciable. National security matters, too. It’s easy to understand why, given the way our powers are separated and the inherently secretive nature of military and intelligence matters. As the courts have thrust themselves into political questions, confidence in the Supreme Court has begun to decline. It’s still higher than Congress, but that’s not saying much.

In a Pew poll from late 2015, a favorable view of the Supreme Court obtained among but 50% of Americans. The percentage of Americans who had a great deal or quite a lot of confidence in the Supreme Court slumped to 3 in the decade ending in 2006, according to Gallup. Where Americans confidence reposes, it turns out, is in the military, the police, and religion. The Supreme Court’s slide is what’s disheartening.

It is not President Trump’s criticism of the courts that precipitated that slide. On the contrary, Mr. Trump is but one of the millions of voters who are upset by the politicization of the courts and he has emerged as a tribune for, among other things, millions of citizens who feel similarly. We’re among them. It’s not that we’ve lost our oft-expressed admiration for the greatest of our judges. They are heroes of the Republic. To protect them was an enumerated reason for seceding from Britain, which is why when they fail to redeem that bet it is so particularly — to use Judge Gorsuch’s phrase — disheartening.