Gorsuch and Game Theory

Trump makes his pick for the Supreme Court:

President Donald Trump will nominate Judge Neil Gorsuch to the Supreme Court, Trump announced Tuesday night at the White House.

The nomination of Gorsuch, a 49-year-old federal appellate judge from Colorado, gives Trump and Republicans the opportunity to confirm someone who could cement the conservative direction of the court for decades.

Actually, that's not right. Gorsuch would be going into the seat occupied by Antonin Scalia, who died last year. Scalia was a brilliant conservative. By most accounts, Gorsuch is as well. His elevation to the Supreme Court doesn't change the calculus.

The Democrats have a decision to make. They are understandably bitter that the Republicans ashcanned their nominee, Merrick Garland, last year. Had Garland gone on the Court, the balance of power would have shifted decisively to the Left. That's not going to happen now. So if you're a Democrat, what do you do, especially with all the rent-a-mobs out on the streets protesting everything the Trumpster does? They can either try to stop Gorsuch, or they can keep their powder dry. If they try to block Gorsuch, Mitch McConnell will eliminate the filibuster entirely for judicial appointees, and that will be the end of it. After that, Trump would be able to put anyone he likes into the next slot. And that is where the real challenge for control of the Supreme Court comes, as it is reasonable to assume the next nomination will be to replace either Anthony Kennedy, who is the swing vote, or Ruth Bader Ginsburg, who holds down the left wing. Both are in their 80s, so their time may be running short. Meanwhile, Stephen Breyer will be 80 years old in less than two years. If Trump gets to replace any of these three Justices, the court will tip decisively to the right. And it's quite possible he'll get to replace all three.

The Republicans hold the majority in the Senate now. It's tenuous, but it's a majority. The Democrats have a number of senators in red states who will be up for reelection in 2018. Some of them, especially Heidi Heitkamp in North Dakota, Joe Donnelly in Indiana, Jon Tester in Montana, and Claire McCaskill in Missouri, are going to be looking over their shoulders. Others who might have been safe otherwise, including a couple of big-time lefties, Sherrod Brown (Ohio) and Tammy Baldwin (Wisconsin), also have reason to think twice about how to proceed.

Gorsuch has outstanding credentials and was named to the 10th Circuit by unanimous voice vote in 2006. This may not be the fight the Democrats want, nor the time. We're about to find out how much influence the freeway blockers really have in Washington.

RIP, Judge Scalia

I'm not going to write that much about Antonin Scalia; there are many, many other places you can go to get learned views of his life and legacy on the Court. I do want to commend this piece from Stephen Carter to your attention, however. Carter, who is a law professor at Yale and was a clerk for Thurgood Marshall, makes an important point about the politics of it all:

When the news broke Saturday that Justice Antonin Scalia had died at age 79, my Twitter feed began to fill with hate. Not disagreement or disrespect -- actual hate. He was an ignorant waste of flesh, wrote one young fool. His death was the best news in decades, cheered another. Then there was the woman who just had to tell the world that she felt safer now than she had at the death of Osama bin Laden. And several people expressed the hope -- the hope! -- that Clarence Thomas would die next.

Thus we see the discursive toll of our depressing Supreme Court deathwatch. We’re actually rooting for people to die.

I do understand why this happens. Scalia was the most powerful conservative thinker on the Court and he had a penchant for the bon mot in his writing, especially in his often withering dissents on decisions. In my experience, many on the Left don't particularly enjoy being on the business end of ridicule. Carter speaks to that, but also to the larger, more important point of Scalia's legacy:

The late Christopher Hitchens once wrote: “One test of un homme sérieux is that it is possible to learn from him even when one radically disagrees with him.” He was right. Those with whom we disagree will often have things to teach us, if we’ll let them.

Scalia was un homme sérieux in the classic sense -- a person of both seriousness and character, a man hard to bully. Did I disagree with his positions? Frequently, and often with passion. But he was a brilliant scholar and jurist, as well as a marvelous writer, and I never failed to learn from his wonderfully crafted opinions. The need to counter his arguments made mine better. And on some issues (the importance of robust protection of Sixth Amendment rights, for instance) Scalia’s opinions converted me to his cause.

If you think about what happened in Wisconsin with the John Doe abuse directed against Scott Walker and his supporters, you understand why Sixth Amendment protections are so crucial, especially the importance of knowing who your accusers are. The text seems straightforward enough:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The calling card of the totalitarian state is the secret policeman's knock on the door; sometimes, they don't knock. We have all manner of agencies with police powers, and crucially, with the means to enforce said powers. We also have a plethora of politicians who are just fine with the use of force to get their desired results. Antonin Scalia understood that. I worry that his replacement won't, or more importantly is indifferent to the concern.