by Michael Dorf
Yesterday Judge Gorsuch told Senator Blumenthal (D. Conn.) that he found President Trump's disparaging tweets and statements about the judges considering the lawfulness of his Executive Order on immigration "disheartening" and "demoralizing." How did this play in the press and the blogosphere? The main coverage in the NY Times shows Gorsuch's views to be widely shared by scholars and others across the political spectrum. But astute observers immediately suggested that Gorsuch's statement was shrewd politics as well. By showing himself to be an independent judge standing up to the president who has nominated him to the Supreme Court even before he has had a Judiciary Committee hearing, Gorsuch strengthens his position among red-state Democrats, who will now find it harder to oppose him. And that, naturally enough, led to a conspiracy theory suggesting that this was the plan all along: The Trump administration planned or at least gave the ex ante green light to Gorsuch's comments precisely as part of the confirmation strategy.
How plausible is the conspiracy theory? Plausible enough that it appears not just in your Facebook feed but in an article in the Washington Post. But still not very plausible, in my view, and if you read the Post story all the way to the end, you see that even the Democratic National Committee, which has been pushing the conspiracy theory, does not confidently assume that Trump himself was in on the supposed ruse. And I don't see how he could have been. Let me game this out.
Suppose you are Judge Gorsuch. You are about to pay courtesy calls to Senate Democrats. You expect that you may be asked about Trump's attacks on judges who rule against him. You don't want to lie but you don't want to jeopardize your confirmation. So you ask Reince Priebus or some other high-ranking White House official whether it would be okay to say what you think, which is that while it's fine for a president to disagree with a court, he should refrain from running down the legitimacy of the judicial branch and that the president's comments are therefore disheartening and demoralizing. Priebus says "go ahead. Say that." Would you?
If you were a simple careerist, you would not take the word of Priebus alone. You'd want to know whether Trump would be okay with "disheartening" and "demoralizing." After all, this is the most erratic president in the history of the republic, with a strong vindictive streak. Even if these are relatively mild condemnations, they are condemnations nonetheless, and so you would face a non-trivial risk that in response the president would withdraw your nomination. So if you were being purely pragmatic, you'd ask Priebus whether he could clear the answer with Trump himself.
Yet that seems absurd. Imagine the conversation.
Priebus: Mr. President, Neil Gorsuch has a question.
Priebus: Judge Neil Gorsuch, your nominee to the Supreme Court.
Trump: Oh right. What's the question?
Priebus: He wants to know whether it would be okay for him to say that your tweets and comments challenging the legitimacy of federal judges and the whole federal judiciary are disheartening and demoralizing.
Trump: Is that a joke?
Priebus: No sir.
Trump: Of course it's not okay. I'm trying to keep the country safe. I wasn't talking about him. I was talking about those Democrat judges who are siding with terrorists.
Priebus: Judge Robart is a Republican, sir.
Priebus: Never mind. Anyway, so that's a no on disheartening and demoralizing?
Trump: You bet your Badger ass it's a no.
Really, could it go any differently? And if not, that is, assuming that Judge Gorsuch did not have advance assurance that Trump was okay with "disheartening" and "demoralizing", I for one am prepared to give him some credit for taking a risk.
BUT, notice where we now are. The whole episode has done two things for Team Trump.
First, the bar for Gorsuch has been moved and lowered. We are not talking about why the seat is open--Senate Republicans' refusal to hold hearings for Merrick Garland--and we're applying a standard of bare minimal qualification. Yes, it's good that Judge Gorsuch has enough backbone to run the small but non-zero risk of having his nomination withdrawn for criticizing the president, but it should be taken for granted that any Republican or Democratic nominee who is minimally qualified by way of judicial temperament would disapprove of a president aiming to delegitimize the judiciary in the crudest way. The conversation has shifted to civics-lesson ground and completely off of the Garland-related process concerns and the deeply conservative views of Judge Gorsuch on quite consequential matters.
Second, we have moved step by step away from the fundamental moral issue that gives rise to the episode in the first place. Trump's grotesque executive order is immoral because it gratuitously causes suffering to tens or hundreds of thousands of people without advancing national security--indeed, through the backlash it inspires, probably undermining national security. The lawsuits to block the order are already at one level of remove from the fundamental moral issues, because statutory and constitutional law permit a great deal of immoral policy, especially with respect to immigration. Trump's indecorous attacks on the judiciary are at a second remove. Judge Gorsuch's response takes us a third layer away. Speculation about how that response will affect the confirmation process is layer four. And the conspiracy theorizing about who's behind the Gorsuch comments is layer five. Thus, here, as in other contexts, one outrageous Trump outburst distracts the media and the public from something even worse.
Some of this is probably deliberate, as the great cognitive linguist George Lakoff argues. But some of it quite likely is not. An administration that can't operate the light switches in the White House is probably not very good at checkers, much less five-dimensional chess. But in the end, it doesn't really matter whether or not Trump and/or his minions are deliberately playing the media and the public. One way or another, they're being played.