The Liberty Papers

What have we learned in the last week? First, the President of the United States is a man who has embraced progressive tactics and sees little restraint on his own power. Second, there is not much will in the Republican Congress to push back against a Republican president, even if he more resembles Barack Obama than Ronald Reagan. That leaves the Supreme Court as the last line of defense for the American people.

In this light, avoiding the confirmation of Merrick Garland to the court must be viewed as a tremendous win for the American people. Despite being a centrist on the politics, Garland’s key qualification in the eyes of the left was his deference to the other branches of government. He would have been the fifth vote for deferring to the competence and good will of the executive and the legislature.

For the left, and especially progressives, I can see the attraction so long as their president was in the White House. No pesky Supreme Court opposing progress! What could be better?

Whoops, the wrong guy got voted in by a regressive white minority! That’s what my left-wing friends tell me, anyway. Arguments about the electoral college aside, the left is now going to be fighting the agenda in Washington rather than driving it—and they’ll need the Supreme Court’s help.

So far, the left-wing reaction on Gorsuch is focusing on two things aside from straight up partisanship: abortion (naturally) and the Hobby Lobby case. It is, as usual, a case of tunnel vision. To his credit, Ian Millhiser at Think Progress goes deeper than most, and focuses on two additional topics: Gorsuch’s views on Chevron v. NRDC and his libertarian leanings on crime.

Even still, Millhiser and the rest of the left manage to miss the big picture on Gorsuch: He has an internally consistent judicial philosophy that embodies the same skepticism of power that our system of checks and balances is predicated on. His positions on Hobby Lobby, Chevron, and criminal law enforcement are all outgrowths of the same core belief. They all look at government exercises of power and ask if they are allowed by the Constitution.

Let me say it again: They all look at government exercises of power and ask if they are allowed by the Constitution. Who is exercising government power nowadays? Donald Trump. Looking at government exercises of power and asking if they are allowed by the Constitution seems like a pretty good idea now, doesn’t it?

This is where we need to split the left into two groups: liberals and progressives. Progressives will never support Neil Gorsuch for the court. He opposes, more than anything, their belief that the progressive agenda should be implemented with whatever power is needed.

Liberals, on the other hand, still care about things like individual rights and due process despite sharing some goals with progressives. It is liberals who need to take a fresh look at Neil Gorsuch. There are issues far more important in this Supreme Court appointment than abortion and birth control. The very concept of limiting executive power is at stake.

In nominating Neil Gorsuch, Donald Trump has put forward a justice who will be an impediment to his agenda. He is doing this now because he has not yet felt the yoke of the court come down upon him. In a year or two, once Trump has really figured out the way Washington works, we will not see a nominee like this. We will see another John Roberts or Merrick Garland, who put judicial deference first. Remember, in 2017 judicial deference will be deference to Donald Trump.

Liberal friends, support Neil Gorsuch while you have the chance.