We begin today’s roundup with Senate Minority Leader Chuck Schumer (D-NY) and his op-ed in POLITICO on a 60-vote threshold for the confirmation of Supreme Court nominee Neil Gorsuch:
Nominees to our nation’s highest court must demonstrate that they are mainstream and independent enough to earn the support of at least 60 senators from both parties. Both of President Obama’s nominees to the Supreme Court exceeded that level of support. The simple question we are asking is: Can President Trump’s nominee meet that same test? If the nominee fails to meet 60 votes, the answer isn’t to change the rules; it’s to change the nominee.
This is not unfair or obstructionist—this is the Senate doing its job by critically evaluating a nominee who will have immense impact on the lives of Americans. The most important factor in assessing a Supreme Court nominee in the time of the Trump administration is whether or not the potential justice will be an independent check on an executive who may act outside our nation’s laws and the Constitution. It remains to be seen if Judge Gorsuch is able to fulfill that important constitutional role.
The New York Times writes about Trump’s attacks on the judicial branch:
Mr. Trump’s repeated attacks on the judiciary are all the more ominous given his efforts to intimidate and undermine the news media and Congress’s willingness to neutralize itself, rather than hold him to account.
Today, at least, the new administration is following the rules and appealing Judge Robart’s decision to the federal appeals court. But tomorrow Mr. Trump may decide — out of anger at a ruling or sheer spite at a judge — that he doesn’t need to obey a court order. Who will stop him then?
USA Today points out that judicial independence could “trump Trump”:
Presidential administrations are at the mercy of the courts. The Obama administration, for example, begged the Supreme Court to support the Affordable Care Act (which it did) and his executive order granting deportation relief (which it did not). It also asked the court to strike down state laws, most notably those banning same-sex marriage (which it did).
In all, President Obama went before the Supreme Court 175 times. President George W. Bush did so 148 times, President Clinton 235 times, President George H.W. Bush 130 times and President Reagan 349 times. With Trump's high-energy approach to governance, there's little doubt he will follow.
Beyond the question of his best legal strategy is the more important issue of whether he is fulfilling his obligations to the American people and to the Constitution.
Marcia Hamilton at The Hill:
President Trump's rollout of his ill-conceived executive order on immigration is evidence that the Framers were correct about human nature: Expect all those with power to be tempted to abuse it and those with unchecked power to be tyrannical.
No recent executive order displays their wisdom better than this ban on immigration from seven Muslim countries, and all Syrian refugees, and the Department of Justice's hurried defense of the president's action.
It was drafted, signed and is now being defended as though the president has unlimited power that makes him unaccountable to the Constitution or the people.
Not so — and if he tries to enforce the ban over contrary orders of the federal courts, we will have a bona fide constitutional crisis.
And in case you missed it, even John Yoo thinks Trump is overreaching on executive power:
As an official in the Justice Department, I followed in Hamilton’s footsteps, advising that President George W. Bush could take vigorous, perhaps extreme, measures to protect the nation after the Sept. 11 attacks, including invading Afghanistan, opening the Guantánamo detention center and conducting military trials and enhanced interrogation of terrorist leaders. Likewise, I supported President Barack Obama when he drew on this source of constitutional power for drone attacks and foreign electronic surveillance.
But even I have grave concerns about Mr. Trump’s uses of presidential power. [...]
And, on a final note, Eugene Robinson writes about Trump’s tantrums:
No one should have been surprised when President Trump raged that the “so-called judge” who blocked his travel ban should be blamed “if something happens.” It is clear by now that the leader of the free world has the emotional maturity of a 2-year-old who kicks, punches and holds his breath when he can’t have ice cream.
He dismisses anything he doesn’t want to hear as “fake news,” which is the equivalent of holding his hands over his ears. A poll showing that most people disapprove of the ban? Photographic evidence that the crowd for his inauguration was less than historic? Fake! All fake!
Trump’s supporters may convince themselves that the tantrums are part of a clever act. But if they were, Trump’s closest aides wouldn’t be leaking like walking colanders to what he calls the “dishonest media.” It appears they can’t get the president to sit for a briefing or read a memo, so they send messages to him via the newspaper stories that are clipped for him to read and the cable channels he obsessively watches.
