Trump’s Supreme Court Nominee: Finding Good News in All the Wrong Places

SQUINTING FOR SILVER LININGS: With uncharacteristic modesty and lack of fanfare, Donald Trump has given the world a new law of physics: Time can fly by even if you’re not having fun. Keeping up with Trump during his first two weeks in office has been like using a shot glass to catch a tidal wave. Bottom line? Trump has proved all the optimist-denialists violently wrong. By doing exactly as promised, he’s turned out far worse than imagined. Go figure. That being said, there’s some solace to be had in his nomination of Neil Gorsuch for the Supreme Court, but only for those with a stomach for bitter irony.

In sharp contrast to the demolition-derby temper-tantrum antics of his first 10 days, Trump’s nomination of Gorsuch to fill the vacancy on Justice Antonin Scalia appears sublimely nuanced, shrewd, and crafted to strategic perfection. By all accounts, Gorsuch is brilliant, personally likable, and extremely qualified. He is also impeccably conservative and will inflict serious damage. Worse yet, his is a great collaborative presence and will effectively move the majority to the right. By nominating Gorsuch, Trump has put Democrats in a no-win box. If they oppose him ​— ​and how can they not after Republicans let Scalia’s seat sit empty 12 months rather than give Obama’s eminently qualified nominee Merrick Garland even the courtesy of a hearing? ​— ​they will appear weak and whiny, and they will lose. If they don’t go to war, they will look even weaker and more pathetic. Either way, they lose.

Gorsuch, son of Ronald Reagan’s Environmental Protection Agency administrator Anne Gorsuch Burford, is already touted as the second coming of Antonin Scalia ​— ​“Scalia 2.0” according to some headlines. While Gorsuch lacks Scalia’s entertaining genius for seething vituperation and condescending invective, he and Scalia apparently drank from the same pitcher of Originalist constitutional Kool-Aid. That defect, I am perversely predicting, will save the bacon of the 400 or so cities nationwide that could find themselves in Trump’s crosshairs for refusing ​— ​as so-called sanctuary cities ​— ​to enforce federal immigration law.

For those otherwise distracted by Trump’s executive order making the world a more dangerous place by clamping down on refugees from seven troubled nations ​— ​the Libertarian-minded Cato Institute conducted cost-risk analysis of this order and concluded that the risk of an American citizen being killed on American soil by terrorist refugees from any country is one in 3.6 billion a year ​— ​he also issued another order authorizing local law enforcement agencies to enforce federal immigration law.

This is a big deal.

State Senator Hannah-Beth Jackson thinks this is a very bad idea and cited a new study just released by a researcher at UC San Diego purporting to show that the crime rate in sanctuary cities is significantly lower than their non-sanctified counterparts. More immediately persuasive, I think, are the concerns I hear from frontline cops. They say it does them no good at all if half the population regards them as La Migra, ready to send them or their loved ones back home. What they predict are more people fleeing cops, more ensuing car chases, more resisting arrest, more fights, more use of force, more Tasers, more shootings. You can do the math yourself. According to the U.S. Census, immigrants make up roughly one-fourth of the county’s total population. Of the 108,080 immigrants living here as of 2015, nearly 68,000 were non-citizens. Of those, nearly 40,000 were undocumented.

While Santa Barbara Police Chief Lori Luhnow has taken pains to assure people her officers will not be enforcing federal immigration laws, City Hall has taken equal pains to not declare itself a sanctuary city for fear of bringing the wrath of Trump gratuitously upon their heads. Even Councilmember Cathy Murillo ​— ​the vocal lefty populist now semi-subliminally running for mayor on the anti-Trump ticket ​— ​has been un-characteristically subdued about copping an “I’m Spartacus” posture of municipal solidarity with the 400 cities that risk losing $1.2 billion as punishment for the sanctuary they offer. I get discretion being the better part of valor, particularly when it comes to waging war with 8,000-pound gorillas like the Trump White House. But the practical impact of Trump’s executive order could well be that the feds declare Santa Barbara to be a sanctuary city no matter how low-in-the-boat city officials would like to remain.

Some cities, such as San Francisco, have just sued Trump over this. Their legal arguments rely on two important Supreme Court rulings, one of which was written by Scalia ​— ​whose shoes Trump hopes Gorsuch will snugly fill ​— ​and the other heartily endorsed by Scalia. The first dates back to 1997, when Scalia wrote the majority opinion striking down the constitutionality of a federal gun-control law. The heart of that case involved a requirement that states conduct background checks on people purchasing guns. Scalia found it constitutionally intolerable that the feds would presume to conscript sovereign state governments and make them enforce federal laws.

The second precedent is more recent and involves the Affordable Care Act, now on Trump’s hack-mutilate-fold-spindle chopping block. Initially, the Obama administration sought to deploy both carrot and stick in getting recalcitrant state governments to participate in the program. Obamacare vastly expanded the universe of low-income people who could qualify for Medicaid, but states needed to take the affirmative step of signing these people up. For states that refused, Obama proposed cutting off certain federal funds. With Scalia’s vote, that too was deemed unconstitutional.

That’s the splinter of a silver lining I see in this particular storm cloud. If you squint real hard, it might not poke you in the eye.