The Briefing, Vol. V, Issue 6-
- Gorsuch nomination sends a clear signal to conservatives
- Democrats continue to drag their feet on Trump’s cabinet
- Utah could see an interesting 2018 primary
Gorsuch nomination: Many conservatives were uneasy about Donald Trump as a candidate. But most of them did vote for him. And the single most persuasive argument for many of them was that they did not want Hillary Clinton to replace the late Justice Antonin Scalia.
With his nomination Tenth Circuit Judge Neil Gorsuch to the high court, President Trump showed conservatives he really intends to keep his promises with respect to the appointment of judges. Gorsuch, who once clerked for Justices Byron White and Anthony Kennedy, is known as an originalist in Scalia’s mold, and someone who could even have a positive influence on his former boss, the Supreme Court’s swing vote.
What’s more, Gorsuch is known for his serious legal mind — no one can assail his professional excellence. At age 49, he could well be on the court for three decades or more.
Trump’s early administration has been turbulent and action-packed. It has sent many messages, but this message is of enormous political importance. Trump needed conservative votes to win the election, and with Gorsuch’s nomination he is trying to show conservatives they can really trust him on the selection of judges.
Meanwhile, Democrats find themselves in a tough spot on the question of how hard to fight this nomination. Their base wants scorched-earth resistance to everything — a filibuster in this case. But even if they could find the 41 votes they need, that would probably prompt Senate Republicans to use the so-called “nuclear option” to ram him through anyway. And if they play that card now against a nominee with excellent credentials who seems like the very best sort of judge a Republican could appoint, where will that leave them later?
After all, three current justices (Kennedy, Breyer, Ginsburg) are 78 years old or older. This may not be Trump’s last opportunity to shape the high court. Would Democrats rather mount their fiercest resistance now, against a nominee whose credentials and scholarship are impeccable? Or wait until later, when Trump might be less popular and there might be a lot more at stake for them — namely, the replacement of Kennedy or even (gasp) one of the court’s liberals?
Then again, can they afford to anger their base by letting Gorsuch go through without much difficulty?
One other note: Oddly, Trump’s recent savaging of the judge who ruled against his immigration ban on Friday (more on this below) could actually help Gorsuch’s cause in the Senate. He will surely be asked about it. By giving the obvious constitutional answer about judicial independence during confirmation hearings, Gorsuch will have the opportunity to put distance between himself and Trump just by doing nothing more than talking common sense about the independence of the judicial branch.
Cabinet nominations: This week, Jeff Sessions (Justice) and Betsy Devos (Education) will get votes in the Senate. The vote for DeVos, scheduled for Monday, is expected to be the first in U.S. history in which a vice president has broken a tie in order to confirm a cabinet nominee.
Having lost the support of Sens. Susan Collins, R-Maine, and Lisa Murkowski, R-Alaska, DeVos has no room for error. This has actually forced Senate Republicans to change the nomination calendar so that Jeff Sessions isn’t confirmed until after the DeVos vote — simply because they will need Sessions’ vote in the Senate to confirm DeVos.
Meanwhile, the process for Andy Puzder’s nomination as Secretary of Labor has been delayed four times. His hearing was most recent supposed to be Tuesday, but was delayed again last week. The problem there appears to be Puzder’s paperwork, not just Democrats’ dilatory behavior.
Still, Democrats’ dilatory tactics, which have included forcing floor votes every time the Senate goes into or out of executive session, and objecting on the floor to allowing the committees to meet for business, are taking their toll. Trump’s administration is coming together far slower than Obama’s Clinton’s, or Bush’s.
For those keeping score at home:
- Trump has already had his secretaries of Defense (James Mattis), Homeland Security (John Kelly), State (Rex Tillerson), and Transportation (Elaine Chao) confirmed, as well as his pick for CIA director (Mike Pompeo).
- Floor votes are coming up for his nominees for EPA (Scott Pruitt), Interior (Ryan Zinke), Treasury (Steve Mnuchin), Office of Management and Budget (Mick Mulvaney), Housing and Urban Development (Ben Carson), Education and Justice.
- Veterans Affairs nominee David Shulkin had a hearing last week.
- Trump’s pick for Agriculture (Sonny Perdue) probably won’t see any action until late this month.
- Puzder’s nomination for Labor seems to be in limbo for the moment.
Midnight Regulations: President Trump made a lot of headlines with his “one-in, two-out”executive order on new agency regulations, requiring them to rescind two rules for each new one they put in place. It has also not gone unnoticed that the federal register is a lot thinner since he took office.
But at this early stage, Congress has the larger and more important role to play here, and it is working with Trump to rescind as many rules as possible under the Congressional Review Act.
One aim of Democrats in prolonging the nomination process may be to save some late Obama-era regulations from the axe by simply bogging the Senate down in the nomination process. If the regulations make it more than 60 legislative days after they are promulgated and reported to Congress, the CRA cannot be used to cancel them easily and permanently.
Senate Majority Leader Mitch McConnell, R-Ky., is no doubt aware of this, one reason the Senate has already voted on two CRA resolutions (these cannot be blocked with the filibuster) and taken up a third, all related to the mining and oil and gas industries. The House has already voted on two additional CRA resolutions, pertaining to a “blacklist” for federal acquisition by certain agencies and gun ownership by people receiving Social Security disability.
The CRA resolution is the most powerful and easiest tool for rooting out unwanted regulations. The Trump administration can rewrite older ones, but the process is much more laborious and easier to overturn. Regulations abolished under CRA are gone instantly, and cannot be reissued in substantially the same form without a new law being passed.
Travel ban: President Trump was dealt his first setback in court when a federal district judge in Washington State (a George W. Bush appointee) placed his immigration order under a temporary injunction on Friday evening.
That case has not been decided on the merits — the administration is only enjoined from enforcing it for now, and DHS has indeed backed down.
But if you’re the betting type, it’s very likely the order will ultimately survive judicial scrutiny. Current immigration law (which dates back to the 1960s) gives the president so much discretion and power in the area of granting permission for non-U.S. persons to enter the country that Trump is likely to succeed on this eventually. If he doesn’t, then the administration can always tighten vetting processes without directly imposing anything as dramatic as a temporary travel ban.
Either way, the more important issue is not what happens during a temporary ban period, whether it occurs or not, but what happens after it. Will the administration find ways of successfully making the vetting process stronger? Will it decide that the current process is adequate for refugees, but tighten it in other areas instead? Will Trump follow through on his expressed preference for taking in refugees fleeing religious persecution, or will this be struck down as discriminatory? And if it isn’t, will it include the Islamic sects that are being persecuted by groups like the Islamic State?
South Carolina-5: This seat will open up upon the confirmation of Rep. Mick Mulvaney, R, as Trump’s budget director. Democrats’ strongest potential candidate, two-time former governor candidate and State Sen. Vince Sheheen, has announced is not running. That probably leaves Republicans in firm control of what until 2010 was a Democratic seat, held by former House Budget Chairman John Spratt, D.
Two Republicans have formally announced: Businessman and Trump supporter Tom Mulikin, and state Rep. Ralph Norman, who lost to Spratt in 2006. They will very likely be joined by others once the seat formally becomes vacant and a writ of election is issued.
Remember that South Carolina has snap runoffs that occur just two weeks after the initial primary election in the event that no one gets 50 percent. A crowded primary could make a runoff almost inevitable.
Utah: This seat won’t be in play for Democrats, but it could become the site of a potential primary challenge. Sen. Orrin Hatch, R-Utah, is seriously considering seeking an eighth term in office, even though he would be 84 on election day. This despite his promise, in 2012, that it would be his last run.
Another Hatch term would seriously frustrate the ambitions of younger pols, already blocked from the other seat by the surprise 2010 defeat of the late Sen. Robert Bennett at caucus by Sen. Mike Lee.
Both Rep. Jason Chaffetz and independent presidential candidate Evan McMullin have weighed running for the seat in the event of Hatch’s retirement, and both may challenge him for the nomination. Former Gov. Jon Huntsman is also mulling the race, and he polls ahead of Hatch among Republican voters in a head-to-head, 49 to 35 percent. If he doesn’t get into the fray, Josh Romney, Mitt’s son, has also been talked about as a potential candidate, as have a few others.
And so the state’s nominating caucus and/or primary could thus become another proxy battle for Trump. Hatch was an early and resolute Trump supporter and is very likely to get the president’s active support in the event of a primary — especially against McMullin. That said, Utah is probably the state where Trump has the least influence on Republican primary voters.
There is one additional wrinkle here that could come into play. Utah’s election laws have changed since Hatch was last elected, and appear likely to change again in the coming weeks.
Under the old system under which Hatch last won, a candidate could avoid a primary altogether by getting 60 percent at the state nominating convention. After that, only the top two finishers at convention could compete in the primary. This is what happened in 2012, as Hatch just barely failed to get the required 60 percent at convention. (He easily won his primary with 66 percent when it was opened up to the voters.)
But the system is now different. As of 2014, candidates can bypass the caucus/convention nominating system altogether by collecting a sufficient number of signatures. Although it didn’t happen with Mike Lee’s re-election in 2016, this could in theory allow for a multi-way primary between several candidates next year.
Moreover, last week, the state Senate unanimously voted to change the state’s primary system again. Their bill, which appears likely to become law, would set a 35 percent threshold for outright victory in crowded primaries. So in a multi-way race where no one got at least that much of the vote, the top two candidates would be forced into a runoff.