The Law and Disorder President
For those of us at Queen’s Law who have been engaged in the topsy-turvy world of the newborn Donald Trump White House, this last week provided us with enough legal based content to last a full year. By now the entire world has become aware of the new President’s large-scale executive action to halt refugees from seven Muslim-majority countries, an order signed in the evening of Friday, January 27th, setting off pandemonium worldwide as thousands were denied entry into the United States almost immediately. The response from Americans was swift and stunning, as protesters and lawyers alike rushed to airports around the country to both support and legally aid those being held by customs and border patrol. Canadian schools did their part, holding research marathons across every law school, including our own Queen’s students, as they worked tirelessly over the weekend to try and help refugees looking for a place to settle.
Despite Trump’s anger at the resistance to his order, including the firing of acting Attorney General Sally Yates who vocally opposed it, the often referred to “Muslim ban” faced enough negative feedback from citizen and politician alike that a complaint brought by the State of Washington succeeded in a temporary restraining order being placed on the ban. The federal judge presiding was James Robart of Seattle, a Bush appointee confirmed 99-0 by the Senate. Robart found that the signing and implementation of the Executive Order would lead to “immediate and irreparable injury”, meeting the conditions for a temporary restraining order to be issued. Judge Robart faced almost immediate criticism from President Trump on his Twitter feed, deeming the jurist a “so-called judge”, calling for citizens to blame him should a terrorist attack occur, and ordering the Justice Department to appeal the restraining order.
The fight over the legitimacy of the travel ban will be sure to reach the highest levels of the American courts, and almost on cue President Trump made his move on that front. On February 1st Trump nominated Judge Neil Gorsuch of the tenth circuit appeals court to fill the vacant Supreme Court seat of Justice Antonin Scalia, who died almost a full year to the day of the President’s dramatic announcement. Those with a pulse on American politics may have remembered another man who was set to fill this seat, Chief Judge Merrick Garland of the D.C. Court of Appeals. His nomination by President Obama was met with fiery resistance from the Senate-controlling Republicans, who vowed to not hold any hearings on Supreme Court appointees until a new President was elected in November. Despite some Democrats’ desires to avenge the wasted nomination of Judge Garland by fighting the Gorsuch pick, there are not enough Democratic senators to fully block him, as any attempt to filibuster or prolong the process could be eliminated with a “nuclear option” from Senate Republicans, effectively forcing the Senate to vote, with the GOP holding a 52-48 advantage in the congressional chamber.
Much like Garland, Judge Gorsuch’s credentials cannot be denied. Born and raised in Colorado, he attended Columbia and then Harvard Law (he would be the 5th justice currently with a Harvard Law Degree) and then clerked for both Justices Byron White and Anthony Kennedy, the latter of the two still sits on the bench at age 80. Gorsuch became known for a strict originalist interpretation of the law, much like his juristic idol Scalia, and found for the plaintiffs in cases like Hobby Lobby and Little Sisters of the Poor, where the Affordable Care Act’s mandate on providing employees with contraceptives was challenged on religious-liberty grounds.
For Republicans Gorsuch represents the characteristics of an ideal Justice; a reverence to the constitution, a history of staunch conservative decisions, and at age 49, the potential to serve on the bench for another three decades. For Democrats he presents a nightmare; an almost impossible to deny jurist, both on pedigree and thanks to GOP control of the government, and with his appointment the somewhat centrist Anthony Kennedy may feel comfortable enough retiring, giving Trump yet another Supreme Court pick. With liberal octogenarians Ruth Bader Ginsburg and Stephen Breyer mulling their own exit, it is not outside the realm of possibility for Donald Trump to push forward four Justices in his Presidency, especially if Democrats cannot take back the Senate in 2018. This effect could ultimately create a 7-2 conservative advantage on the land’s highest court for years to come.
The last week has shown the vast legal ramifications of a Donald Trump presidency, and we future lawyers should take notice. On one hand the President has outwardly criticized the role of the Judiciary in America, a branch of government intended to have equal power to the Executive and Congress. On the other hand, he is being given power and opportunity formerly unheard of in our lifetime, with a chance to mould a Supreme Court in however way he sees fit, as long as Republicans continue to control the powers that be responsible for confirming his nominees. To many this poses one of the most morbidly ironic situations in American political history, and unless something changes soon, will change the face of law in the United States, and hit the world with its palpable aftershocks.
Ethan Gordon is the Co-Editor-in-Chief of Juris Diction.