RUTHFULLY YOURS

President Trump has nominated Judge Neil Gorsuch, 49, to fill the Supreme Court seat held by Justice Antonin Scalia until he passed away last February. In announcing the nomination, President Trump said, “Judge Gorsuch has outstanding legal skills, a brilliant mind, tremendous discipline and has earned bipartisan support.” President Trump added that Judge Gorsuch was “the man our country needs and needs badly to ensure the rule of law and the rule of justice.”

Judge Gorsuch was a Marshall Scholar at the University of Oxford, a Harvard Law School graduate, and a clerk for Supreme Court Justices Byron White and Anthony Kennedy. He served in a high-ranking position in the Justice Department before he was nominated by former President George W. Bush and confirmed by voice vote in the Senate for a seat on the United States Court of Appeals for the 10th Circuit in 2006.

Judge Gorsuch shares Justice Scalia’s originalist legal philosophy. Like Justice Scalia did throughout his judicial career, Judge Gorsuch seeks to interpret the Constitution through strict construction of its text and an understanding of the Founding Fathers’ original intent.

“The great project of Justice Scalia’s career was to remind us of the differences between judges and legislators,” Judge Gorsuch remarked at Case Western Reserve University School of Law in Cleveland. He said that judges should refrain from imposing their own moral predilections in their decisions. Instead, they should use “text, structure and history” in their interpretations of the law. Legislators “may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future,” Judge Gorsuch said. However, “judges should do none of these things in a democratic society.”

As Judge Gorsuch put it in one of his opinions, judges should “apply the law as it is, not as they wish it to be.”

It is this approach, as reflected in his opinions, which explains Judge Gorsuch’s ranking near the top of the so-called “Scalia Index,” created by some legal academics, to analyze who would be likely to best follow in Justice Scalia’s footsteps.

Judge Neil Gorsuch, President Trump’s nominee to succeed Justice Antonin Scalia, is a native Coloradan and avid outdoorsman. He clerked for a federal appellate judge and two Supreme Court justices and spent a decade practicing law before his appointment in 2006, at age 39, to the 10th U.S. Circuit Court of Appeals. In the decade since, he has written some 850 opinions.

The way to take a judge’s measure is to read his opinions, and so we set out to review Judge Gorsuch’s. It was not an arduous task, for his prose is unusually engaging—think Scalia, with none of the abrasiveness. Justice Elena Kagan has declared herself a fan of his writing style. The only difficulty in summarizing Judge Gorsuch’s output is the compulsion to quote, at length, from so many of his opinions.

One opens this way: “Haunted houses may be full of ghosts, goblins, and guillotines, but it’s their more prosaic features that pose the real danger. Tyler Hodges found that out when an evening shift working the ticket booth ended with him plummeting down an elevator shaft.” The case, by the way, was a prosaic dispute between insurers. Another opinion starts: “What began as a fight at a strip club finds its way here as a clash over hearsay.”

Judge Gorsuch shows a concern for the people whose disputes are before the court. Each opinion typically begins with the name of the person seeking relief and why. A recent example: “After a bale of hay hit and injured Miriam White while she was operating her tractor, she sued the manufacturer, Deere & Company.” Ms. White’s appeal was summarily denied, but even the brief, three-page opinion reflects a serious engagement with her arguments and the facts—in contrast with the boilerplate language judges often use in such decisions. Win or lose, parties appearing before Judge Gorsuch surely know that they have been treated with fairness, consideration and respect.

If the Left is going to twist every bit of Trump administration news into fiction, who is going to believe them when, inevitably, there actually is something worth raising hell about? The question is worth asking — for about the tenth time this week . . . and it’s only Tuesday! — in light of the fuss Democrats and their media friends are making over a discussion between just-fired acting attorney general Sally Yates and Senator Jeff Sessions, President Trump’s attorney-general nominee, at a 2015 Judiciary Committee hearing.

Yates, of course, has just made the leap from obscurity to the pantheon of progressive victim-heroes. Knowing she was soon going to be out of her very temporary job as acting AG, she seized the opportunity to go out in a blaze of glory with an act of insubordination against Trump’s executive order (EO) blocking the admission of various aliens into the U.S.

Yates is an Obama appointee. Trump’s EO is anathema to the Left, but regardless of what one thinks of the policy it advances, it is lawful. Moreover, even when orders are not lawful, everyone in the Justice Department knows that one’s choice, upon being given a directive from a superior about which one has misgivings, is to carry out the order or resign. Yates instead chose sabotage. She was rightfully canned, and the only question really worth pondering is why President Trump had maintained her in such an important position in the first place.

Naturally, that will not impede the frenetic campaign to fashion The Legend of Sally Yates — before the clock strikes 8:01 this evening, when Trump’s announcement of a Supreme Court pick turns her back into Sally Who?

Toward both that end and the simultaneous Democratic rope-a-dope to derail or at least delay the confirmation of Senator Sessions and other Trump nominees, the Left has leaped on a portion of Yates’s 2015 confirmation hearing (to become Obama’s deputy attorney general) in which she was questioned by Sessions.

Sessions asked Yates, “Do you think the attorney general has a responsibility to say ‘no’ to the president if he asks for something improper?” Elaborating, he pointed out that, before being confirmed as the nation’s chief law-enforcement officer, attorney general Loretta Lynch had said that she supported President Obama’s lawless immigration policies. Sessions added, “A lot of people have defended the Lynch nomination . . . by saying: ‘Well, [the president] appoints somebody who’s going to execute his views. What’s wrong with that?’ But if the views the president wants to execute are unlawful, should the attorney general or the deputy attorney general say ‘no’?”

Yates responded, “Senator, I believe that the attorney general or the deputy attorney general has an obligation to follow the law and the Constitution, and to give their independent legal advice to the president.”

On the Saturday afternoon last February when he received word of Justice Scalia’s death, Neil M. Gorsuch “immediately lost [his] breath” and “couldn’t see . . . for the tears.”

In his grief over the death of a justice he deeply admired and emulated, Judge Gorsuch could hardly have imagined the series of events that would lead to his being selected today to fill the Scalia vacancy. And while he has rightly recognized that no one could ever replace Justice Scalia, there are strong reasons to expect Justice Gorsuch to be an eminently worthy successor to the great justice.

Gorsuch is a brilliant jurist and dedicated originalist and textualist. He thinks through issues deeply. He writes with clarity, force, and verve. And his many talents promise to give him an outsized influence on future generations of lawyers.

Gorsuch’s judicial outlook is reflected in his beautiful speech (text and video) celebrating — and embracing — Justice Scalia’s traditional understanding of the judicial role and his originalist methodology:

Perhaps the great project of Justice Scalia’s career was to remind us of the differences between judges and legislators. To remind us that legislators may appeal to their own moral convictions and to claims about social utility to reshape the law as they think it should be in the future. But that judges should do none of these things in a democratic society. That judges should instead strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be—not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.

In that speech, Gorsuch acknowledges that Justice Scalia’s project had its critics, from the secular moralist Ronald Dworkin to the pragmatist Richard Posner. He explains why he rejects those critics and instead sides with Justice Scalia in believing that “an assiduous focus on text, structure, and history is essential to the proper exercise of the judicial function.” The Constitution itself carefully separates the legislative and judicial powers. Whereas the legislative power is the “power to prescribe new rules of general applicability for the future,” the judicial power is a “means for resolving disputes about what existing law is and how it applies to discrete cases and controversies.” This separation of powers is “among the most important liberty-protecting devices of the constitutional design.” Among other things, if judges were to act as legislators by imposing their preferences as constitutional dictates, “how hard it would be to revise this so-easily-made judicial legislation to account for changes in the world or to fix mistakes.” Indeed, the “very idea of self-government would seem to wither to the point of pointlessness.”

If progressives were to become empiricists, they would look at the symptoms of the last election and come up with disinterested diagnoses, therapies, and prognoses.

Although their hard-left candidate won the popular vote, even that benchmark was somewhat deceiving — given the outlier role of California and the overwhelming odds in their favor. The Republicans ran a candidate who caused a veritable civil war in their ranks and who was condemned by many of the flagship conservative media outlets. Trump essentially ran against a united Democratic party, the Republican establishment, the mainstream media (both liberal and conservative) — and won.

He was outspent. He was out-organized. He was outpolled and demonized daily as much by Republicans as Democrats. Yet he not only destroyed three political dynasties (the Clintons, Bushes, and Obamas) but also has seemingly rendered the Obama election matrix nontransferable to anyone other than Obama himself.

Not that Hillary did not try to copy Obama’s formula. She brought on Obama politicos to staff her campaign. She supported all the Obama initiatives, from Obamacare and record debt to a collapsed foreign policy. She spoke in a faux-inner city accent the same way Obama had to get out the African-American vote. She outdid Obama’s clinger speech by her own twist of “deplorables” and “irredeemables.” She returned to her own hard-left phase of the 1990s. Yet she was trounced in the electoral college and saw the fabled “blue wall” crumble.

DIAGNOSIS

Any reasonable post-election autopsy for a party would identify certain inconvenient truths.

1) The African-American vote is vital to the Democratic party, but it is dubious to suppose that blacks will register, turn out, and vote in a bloc (as they did in 2008 and 2012) for a Democratic candidate other than Barack Obama. The very efforts to ensure that 95 percent of blacks will vote for other Democratic nominees might only polarize other groups in an increasingly multiracial and multiethnic America. Trump, of course, knows all this and will make the necessary adjustments.

2) Asians and Hispanics are less a monolithic voting bloc. Supposedly discredited melting-pot assimilation, integration, and intermarriage are still the norm and can temper tribal solidarities and peel away from Democrats a third of their assumed constituents — in an electoral landscape where there is already only a thin margin of error, given that Democrats have written off the white working classes. In the case of Latinos, red states such as Texas and Arizona are unlikely to be flipped soon by Latino bloc voting, especially if Trump closes down the border and ends illegal immigration as a demographic electoral tool of the Democratic party. And Latino electoral-college strength is dissipated in states that are likely to be blue anyway (California, Nevada, New Mexico).

3) The race/class/gender agenda so favored by coastal elites and promulgated by media, Hollywood, and popular culture is an anathema to Middle America, especially its strange disconnect between affluence and the mandate for purportedly progressive equality. Moralistic lectures from wealthy people are not a way to win over the working classes. Rants by Hollywood celebrities and racialist sermons by would-be DNC chairs will not win over 51 percent of the voters in swing states. The twin agents of progressive dogma, the media and the university, are themselves under financial duress, must recalibrate, and have lost support from half the country.

President Trump’s temporary ban on entry into the U.S. by various categories of aliens has caused a firestorm. That owes in part to the rash implementation of perfectly legal restrictions, but the hysteria is out of proportion to the minimal harm actually done.

One of the most dismaying parts of the debate has been the banter over whether Trump has imposed a “Muslim Ban.”

It is no surprise, of course, that Islamists — along with their friends and stooges on both sides of the political aisle — have used the opportunity to agitate and hand-wring over the specter of America “at war with Islam.” That, after all, has been page-one of their playbook for a generation.

There has also, however, been indignation on the other side, from Trump defenders denying that the executive order (EO) is in any way a “Muslim ban.” Time after time this weekend, right-of-center news outlets and commentators could be found defying their guests and counterparts to find the word “Muslim” or “Islam” in the EO. I sympathize with the frustration. The EO is clearly not a ban on all Muslims, or even of any specific Muslim. Since the other side is slanderously suggesting otherwise, there is an irresistible urge to seize on anything that proves them wrong.

Yet the only reason there is an EO is the threat posed by sharia-supremacism, which we inexactly refer to as “radical Islam.” You can’t have radical Islam without Islam. Therefore, the people the EO seeks to exclude are, of necessity, Muslims — not all Muslims, of course, but a significant subset of them nonetheless.

Trump got to the EO (which is a temporary stop on the way to a more refined policy) by starting — during his campaign — with the proposal of a temporary categorical ban on all Muslims. I highlight temporary because it is important. Trump never took the position that all Muslims outside the U.S. should be banned from our country for all time. He recognized the need to separate our Muslim friends from our radical Islamic enemies. He was groping for a way to do that while protecting the country.

For decades, Washington has been suicidally unwilling to target our radical Islamic enemies for fear of offending Muslims in general. Trump’s more security-minded approach — which many Americans outside Washington regard as common sense — was to call a temporary halt to the admission of Muslim aliens until the government could figure out an effective way to screen out Islamists from pro-constitutional Muslims who would be an asset to our country.

During the campaign, then, Trump asked Rudy Giuliani — the former New York City mayor and renowned federal prosecutor — to help him develop a policy that would solve this dilemma. Rudy then put together a team of advisers, of which I was a member, to work the problem. Trump’s proposals consequently evolved away from a coarse categorical ban, adopting instead a threat-based approach that would rely on vetting rather than banning, and that would target the places where the threat is most prevalent.

When all the campaign booze was downed and the last “I’m With Her” balloons were popped, bleary Democrat hacks rose from stained couches to try and explain the election to the rest of their party.

Two explanations made the rounds like the last champagne bottle for a victory that never came.

Hillary was a bad candidate. Her shady financial dealings made her untrustworthy. The more she tried to appeal to everyone, the less she appealed to anyone. She was better at hitting up big donors at glitzy parties than at interacting with working class voters. And the huge campaign machine they financed was no substitute for voter excitement.

Hillary was a historic candidate who would be sitting in the Oval Office right now if it hadn’t been for the FBI and the Russians. President Trump is illegitimate and must be impeached. Hillary was not defeated by her flaws. Instead she was a wonderful leader who was stymied by a rigged election.

The first explanation was championed by the Sandernistas of the far left. Their case was straightforward. Hillary lost because she was a bad candidate. Bernie would have won. The Democrats needed to move forward by burying Hillary’s machine and replacing it with the even more radical Bernie left.

But the Clinton machine had no interest in being buried.

The Clintons are not just two greedy politicians. They’re a brand and an industry. The huge sums of money they raised went to subsidize a whole network of loyalists. And then there were the many friends who had gotten jobs based on the strength of their connections to Clintonworld.

It wasn’t just about the S.S. Hillary sinking into the cold waters of Chesapeake Bay. Hillary’s defeat endangered the positions of all her friends who had schemed, plotted and broken the rules to get her this far; the leaders of Democrat outfits in states across the country, bundlers who threw a lot of other people’s money into a giant hole and lobbyists who got by on the strength of their Clinton connections.

That $1.2 billion campaign cost was the tip of the iceberg. Billions had been plowed into Clintonworld.

They couldn’t and wouldn’t accept the blame for backing a bad candidate. So they lied. They insisted that she hadn’t lost. Hillary had been illegitimately denied the White House by a vast conspiracy.