Donald Trump is moving ahead on his plan to tilt the Supreme Court back to the right, courting another Senate confrontation with the Democratic Party opposition.
Mr. Trump nominated Neil Gorsuch to replace Antonin Scalia, the long-time justice and pillar of the court’s conservative wing who died last year. Judge Gorsuch’s conservative bona fides – he was involved in the case of Hobby Lobby, a chain of Christian-owned hobby stores that won the right not to provide contraception in its employee health plan on religious grounds – are certain to satisfy the President’s supporters. But the pick is likely to start a battle in the Senate, which must confirm the 49-year-old before he can take his seat.
With the court weighing in on explosive social and policy issues – from same-sex marriage to Obamacare – in recent years, control of the body is a pivotal goal for both sides of these debates.
“He’s a man our country needs and needs really badly to ensure the rule of law and the rule of justice,” Mr. Trump said Tuesday evening.
Judge Gorsuch, for his part, said it was “for Congress and not the courts to write new laws” and that “the role of judges [is] to apply, and not to alter, the work of the peoples’ representatives” – the sort of “originalist” bent that conservative judges favour, as they argue against courts taking action on same-sex marriage and other progressive issues.
The looming fight comes as Mr. Trump faces mounting opposition in Congress, on the streets and in the court system.
Senate Democrats tried Tuesday to jam the gears in the approval process for the President’s cabinet picks in protest of his firing acting attorney-general Sally Yates the previous day. Ms. Yates, an appointee of former president Barack Obama, had defied Mr. Trump by ordering the Justice Department not to defend his executive order suspending entry into the United States of citizens of seven Muslim-majority countries.
Mr. Trump’s order drew protests at airports and sowed confusion as officials tried to sort out how to apply the ban and whether dual citizens were exempt. It also faces legal challenges, with judges in five states ruling against provisions of the order, which also directs officials to step up deportations.
Whether any of this will have an effect on the President’s 12-day-old administration is an open question. Mr. Trump built his brand on tough, confrontational policies and has drawn protests since he started his campaign. And he has moved rapidly to make good on his campaign promises and project an image of a man in charge.
As the legal challenges to the order piled up, Ms. Yates effectively ordered her department not to fight back against them. After her firing, the Democrats boycotted confirmation hearings for two of Mr. Trump’s cabinet nominees – Steve Mnuchin in the treasury and Tom Price at health and human services – preventing the committees from having the quorum necessary to refer the pair for a vote in the Senate.
That tussle is likely a preview of what is to come when the Senate turns its attention to Judge Gorsuch. Although he requires only a simple majority of senators to take his seat on the Supreme Court – which the Republicans have – any senator can force a filibuster, which requires 60 votes to overrule.
In that case, the GOP must either convince seven Democrats to vote with them or change procedural rules to remove the supermajority rule.
The strenuous pace of Mr. Trump’s actions in the opening days of his administration has thrown the opposition into a tailspin, said Donald Critchlow, a political historian at Arizona State University.
“It’s made the people who voted for him heartened, that he is doing what he said he was going to do,” Prof. Critchlow said in an interview. “And it’s kept progressives in disarray because they’re getting bullets from all directions. The Democrats are using high rhetoric, but without a clear strategy of how they’re going to counter Trump.”
The risk for the Democrats, he said, is that they look purely obstructionist – like they are holding up his administration without any clear purpose or message on why. This could be particularly damaging for the many Democratic senators representing states won by Mr. Trump, including Florida, Ohio and Michigan.
The Democrats’ protests, in any event, cannot realistically stop the President, whose party enjoys control of both houses of Congress.
“The Democrats can delay, they can stall, but it’s going to be really hard to get enough Republican defectors to their side to actually block the agenda,” said Kyle Kopko, a political scientist at Elizabethtown College in Pennsylvania. “I don’t believe the President is paying much attention to the opposition.”
Still, Prof. Kopko said, there is a “trickle-up effect” from the opposition to Mr. Trump’s policies from outside Congress. The confusion over who was covered by the immigration ban – specifically whether green-card holders and dual citizens were subject to it – and complaints from businesses that hire skilled workers from other countries, particularly in the tech sector, appear to have helped get the rules loosened slightly in the early going, he said.
“That type of effect influences his administration,” he said.
So far, however, none of this has much slowed Mr. Trump.
The pace of Mr. Trump’s actions is similar to that of Franklin Roosevelt and Ronald Reagan, Prof. Critchlow said – but with one key difference: While Mr. Roosevelt and Mr. Reagan rode to power with landslide majorities and governed with the knowledge their actions would enjoy broad support, Mr. Trump did not win the popular vote.
“It’s proving effective at keeping his opponents off-guard,” he said. “It’s a whirlwind of activity and it has no precedent.”
WASHINGTON — The Globe and Mail
Published Tuesday, Jan. 31, 2017 7:09PM EST
Last updated Wednesday, Feb. 01, 2017 9:00AM EST