Nine again

Trump re­deems a prom­ise and Neil Gor­such sits on the Supreme Court

The Washington Times Daily - - EDITORIAL -

Neil Gor­such is fi­nally safe as a jus­tice of the United States Supreme Court, sur­vivor of a cheap cam­paign to im­pugn his char­ac­ter and his knowl­edge and de­vo­tion to the Con­sti­tu­tion and the law. The jus­tices num­ber nine again, and Don­ald Trump has re­deemed one of his most im­por­tant prom­ises.

In fact, it might have been the most im­por­tant prom­ise of all. Many con­ser­va­tives who could never quite ac­cus­tom them­selves to the Don­ald’s some­time crude­ness and easy vul­gar­ity, swal­lowed hard and gave him their votes on his word to re­store the court’s de­vo­tion to the Con­sti­tu­tion.

With nine jus­tices on the bench again, the court re­sumes its mod­er­ately con­ser­va­tive tilt, though An­thony Kennedy is sub­ject to whim and emo­tion and to wan­der­ing into the no man’s land of the law, as when he put the Con­sti­tu­tion and set­tled law aside to find a con­sti­tu­tional right to a per­ver­sion called “same-sex mar­riage.” Es­tab­lish­ing a true con­sti­tu­tion­al­ist ma­jor­ity will re­quire one more con­sti­tu­tion­al­ist judge, an­other judge in the mold of An­tonin Scalia.

But con­ser­va­tives will fool only them­selves if they ex­pect Mr. Gor­such to ren­der votes and write de­ci­sions that merely fit a con­ser­va­tive mold. He prom­ises to be faith­ful to the Con­sti­tu­tion, the found­ing doc­u­ment that con­ser­va­tives owe first de­vo­tion to, but that will not nec­es­sar­ily guar­an­tee that ev­ery de­ci­sion will please con­ser­va­tive taste. Good men and true can in­ter­pret the Con­sti­tu­tion in dif­fer­ent ways.

Mr. Gor­such was con­firmed by a vote of 52 to 48, ren­dered on a party line vote, and un­til the High Court breaks sharply to the right or to the left — not likely for a fu­ture that can be seen from here — such close con­fir­ma­tions will be the norm. Unan­i­mous con­fir­ma­tion votes were once not so rare, and votes of 88 to 12, or 68 to 31 were com­mon­place. Not any more.

Chuck Schumer’s over-the-top pre­dic­tions that the sky would fall, the oceans boil and democ­racy wiped off the face of the earth if the Se­nate rules were changed to en­able con­fir­ma­tion of Jus­tice Gor­such by ma­jor­ity vote, have not hap­pened yet, nor or they likely to. The dogs bark and the car­a­van al­ways moves on.

Mr. Schumer went over the top be­cause that’s what mi­nor­ity lead­ers do. But de­mo­niz­ing a lawyer as dis­tin­guished and as free of po­lit­i­cal blem­ish as Neil Gor­such was some­thing the se­na­tor will re­gret, if he does not re­gret it al­ready.

Mitch McCon­nell, the leader of the Repub­li­can ma­jor­ity who held firm un­der con­sid­er­able pres­sure with his vow that nei­ther Mer­rick Gar­land nor any­one else would be con­firmed in the last year of the Obama pres­i­dency, can take con­sid­er­able pride in do­ing what he said he would do. By one per­cep­tive ac­count, Mr. McCon­nell did Mer­rick Gar­land a fa­vor with noth­ing less than a mercy killing.

“The stonewalling of Gar­land looked un­rea­son­able,” writes Jonathan Tobin in Na­tional Re­view. “In ret­ro­spect, it was ac­tu­ally mer­ci­ful. If [Mr.] Gar­land had been granted a hear­ing he would have been sub­jected by Repub­li­cans to the same sort of un­rea­son­able vilification and dis­tor­tions of his record that [Mr.] Gor­such just got from the Democrats. The only dif­fer­ence is that [Mr.] Gor­such suf­fered the or­deal se­cure in the knowl­edge . . . he would even­tu­ally be con­firmed. [Mr.] Gar­land would have been put through the same tor­ture know­ing there was no chance he would ever sit on the Supreme Court.”

Be­ing vil­i­fied and lied about is never fun, but Jus­tice Gor­such can take comfort in the fact that no­body be­lieved the lies and vilification. His rep­u­ta­tion as a gentle­man and a scholar sur­vives, and if that’s a faint last laugh at his tor­men­tors’ ex­pense, he’s en­ti­tled.

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