By: Michael Baron
Donald Trump’s second week as president has been full of surprises and Sturm und Drang.
His Friday afternoon executive order barring for 90 days immigration from seven countries designated by the Obama administration as “countries of concern” was obviously ill-vetted and prompted nationwide and international protests. His Tuesday night nomination of Neil Gorsuch to the Supreme Court triggered well-rehearsed protests but also some unexpected support.
Both of Trump’s actions were in line with his campaign promises and were executed without the leaks so common in Washington. Both elicited outraged reaction, including some transparently spurious arguments. But Trump seems likely to come out the winner, politically and on substance.
The immigration order was widely and inaccurately labeled a “Muslim ban” — a policy Trump advocated on the campaign trail but abandoned many months before he was elected.
Many protesters argued that any limit based on nationality or religion is “un-American.” But American law has long used religion as a factor in deciding which immigrants to accept — for example, giving preference to those persecuted for their religion. And asserting that discriminating by nationality is verboten is only a short step from the proposition that everyone in the world has a right to move to the United States.
That open-borders position is simply wrong as a matter of constitutional and international law. And it’s politically untenable.
Initial polling shows a plurality favoring the order — a better score than Trump’s popular vote percentage. Poll results may vary considerably depending on question wording, and opinion may change based on events.
But it’s clear the rage expressed by Trump’s critics is not indicative of wider public opinion, just as the giant turnout for the women’s marches Jan. 21 wasn’t typical of the nation. Analyst Nate Silver estimates that 80 percent of the turnout came in states carried by Barack Obama and Hillary Clinton. Democrats’ “fight in the streets” (Sen. Tim Kaine’s phrase) is playing to the base, not the wider public.
There’s no polling yet on Judge Gorsuch’s nomination, but even liberal elites are impressed. Neal Katyal, who once served as acting solicitor general in the Obama administration, warmly endorsed the nominee in a piece for The New York Times, mentioning his “sense of fairness and decency” and his “temperament that suits the nation’s highest court” and expressing confidence that he “would help to restore confidence in the rule of law.”
Democratic senators are still smarting over Republicans’ refusal last year to even consider Obama’s highly qualified nominee, Judge Merrick Garland. But they overstate their case. The majority of senators clearly indicated their constitutionally authorized refusal to consent to his nomination, and no justice has been nominated and confirmed in a presidential election year since 1940.
After the death of Justice Antonin Scalia last February and Senate Majority Leader Mitch McConnell’s assertion that the Senate would not confirm an Obama nominee, candidate Trump promised to nominate a justice in the Scalia mold and presented a list of 21 possible appointees, including Gorsuch.
It’s as clear as such things can be that the Supreme Court nomination was critical to his election. The exit poll showed that of those who picked the Supreme Court as a major consideration, 56 percent favored Trump over Clinton. The issue undoubtedly helped this worldly candidate win the votes of 81 percent of white evangelicals, a higher percentage than voted for previous Republican nominees.
Will Democrats try to defeat the Gorsuch nomination with a filibuster, which is allowed under current Senate rules? Senate Minority Leader Chuck Schumer, listening to the baying crowds beneath his Brooklyn apartment, has raised that threat. But at least eight Democratic senators, including three from Hillary Clinton states, have come out for “a hearing and a vote.” That’s one way to square their protests over Judge Garland’s rejection with avoiding negative feedback from trying to stop an obviously superbly qualified nominee.
It’s also a way to preserve the filibuster for a later nominee. Democrat Harry Reid, then the Senate majority leader, set a precedent in 2013 by abolishing the filibuster for lower court and executive branch nominations. It’s clear that McConnell would do the same for the Supreme Court — and would be on solid political ground — if Democrats were to filibuster.
His being on solid political ground would be despite the fact that Trump’s approval rating is far lower than those of other incoming presidents. Trump won the election despite low favorability ratings (just as many who considered Clinton dishonest voted for her), because voters favored what he promised to do. On the poorly vetted immigration order, as on the well-executed Supreme Court nomination, he’s followed through.