The best moment Donald Trump has had in his tumultuous first three weeks in the White House was the nomination of Neil Gorsuch to the Supreme Court. The roll-out was pitch perfect. Trump for once was not over the top. And by common consent, Gorsuch is admirably qualified and a great guy. Now the President risks messing it all up.
Part of the problem is the almost vertical learning curve to which this most ignorant and least experienced president in history has inevitably been subjected. Mastery of Twitter is fine but it doesn’t cut the mustard. But the biggest problem, and the biggest lesson, is another: you can’t run the government like a business.
If there’s one thing Trump adores, it’s sitting in at his desk in the Oval Office, with those spanking new gold curtains behind him and the portrait of that earlier populist chief executive Andrew Jackson over his shoulder, signing presidential orders that are down payments on his campaign promises. Obamacare is to be subjected to slow death by government agencies. Wham. An order decreeing that a “continuous physical wall” be constructed along the border with Mexico. Wham. An order taking aim at organised crime, drug cartels and the like. Wham.
Trump is above all image-conscious and PR-super-savvy. And the image he wanted to send was that of the CEO taking government by the scruff of its neck. And any underling who defied him? Fired. At least that’s the way it worked for him in corporate America. But not in government, divided by the Constitution into three equal branches, with its deliberately calibrated system of checks and balances. For proof, look no further than fiasco of the travel ban on citizens from seven predominantly Muslim countries, and Trump’s reaction to the court decisions against it.
Now you can’t blame Trump for being furious at the judiciary. Many presidents have felt the same. Back in the 1930s FDR threatened to pack the Supreme Court with new liberal justices when it blocked his New Deal initiatives. More recently Barack Obama, usually a model of urbane civility, vented his anger at the court’s Citizens United decision of 2010 that opened the floodgates to corporate spending on political campaigns.
In normal times, the notion of the judiciary overruling the president on a matter of national security gives many people pause for thought. Now, here comes some federal district judge, at the very start of the new presidency, putting a temporary halt to a ban purporting to make Americans safer, followed by a panel of three appeal court judges unanimously agreeing that, at the very least, the judge had a legitimate case to make.
But as usual with Trump, the problem wasn’t so much his hostility to the verdict but the crudely ad hominem manner in which he expressed it – deriding the author of his misfortunes as a “so-called” judge, lambasting the court decisions as “disgraceful” and suggesting that a half-witted high school student knew better than the gentlemen in robes.
The result is a mess entirely of his own making. The judicial rulings have yet to deal with the substance of the issue: whether the President exceeded his constitutional powers. And it may yet be that the appeals court subsequently decides that in fact he hasn’t. But his options are not promising.
If he takes his case on an emergency basis to the Supreme Court, the one body that can overturn a decision by federal appeals court judges, Trump could lose. There are currently just eight justices, rather than the full complement of nine. The four liberal ones, all appointed by a Democratic president, seem bound to vote to maintain the stay, meaning the best he can hope for is a 4-4 split that would leave the lower court ruling intact.
Or the White House can go a slower route, waiting for the lower courts to pronounce on the merits of the case. It could win, but a decision might take months, by which time whatever political impact the original ban contained would be lost. But most damaging of all, now Trump is talking about some new – and presumably district court judge-proof – travel curb order next week. But whatever happens, Judge Gorsuch has now been sucked into the mess as well.
At first Gorsuch seemed to be moving adroitly to allay the fears of Democrats still outraged by the Republicans’ year-long refusal to even consider Obama’s choice to fill the vacant seat on the court, Merrick Garland. In meetings with Democratic Senators – some of whose support he will need if he is to assemble a filibuster-proof majority of 60 for confirmation – Gorsuch reportedly referred to Trump’s onslaught against the judiciary over the travel ban as both “disheartening” and “demoralising”.
It seemed like a clever attempt to prove he wouldn’t be Trump’s poodle on the court. But within hours the White House had pulled the rug from under him, declaring that Gorsuch had been talking not about Trump’s latest histrionics, but about attacks on the court system in general. That was all the Democrats needed. Gorsuch meanwhile refused to repeat in public his private criticism of the man who nominated him – confirming their suspicions the nominee was not to be trusted and would tolerate Trump’s attacks on the independence of the judiciary.
A few days ago, some were cautiously hoping that a really bruising confirmation battle over Gorsuch could be avoided. Now one seems a dead certainty. Once again the CEO might not have his way. But how many times must it be said? You can’t run a government like you run a business.
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