Evaluating The Qualifications Of Neil Gorsuch

SCOTT SIMON, HOST:

A federal judge in Seattle has ordered a halt to President Trump's travel ban on immigrants from seven countries. Bob Ferguson, the attorney general of Washington state, told reporters...

(SOUNDBITE OF PRESS CONFERENCE)

BOB FERGUSON: I want to be very clear. What the judge announced today was nationwide. The president's executive order does not apply - does not apply. And that means folks can now apply to our country, so that relief is significant, to put it mildly.

SIMON: All this to top off a political week in which President Trump nominated Judge Neil Gorsuch of Colorado to the Supreme Court, and he opened quarrels with Arnold Schwarzenegger and Australia. We're joined now by Stephen Carter, the distinguished Yale law professor, novelist and columnist for Bloomberg View. Stephen, thanks so much for being with us.

STEPHEN CARTER: It's always my pleasure, Scott. Thank you.

SIMON: Where does this federal court ruling put the presidential order?

CARTER: Well, it's one of those that's very hard to tell. The Justice Department's going to appeal the order. Another federal judge in Massachusetts just declined to issue a temporary restraining order. The one thing people have to understand about an order like this - because immigration - the immigration system is so complex, that it's not applied overnight. The lawyers for the Immigration Service that will have to look at it, figure out how to implement it - they'll have to adjust the protocols at the borders and so on. It may take as much as a week, by many expert estimates, to get this thing - this thing working.

What the order does tell us, though, is it - that it's a very unusual case because it is usually the president is thought to have an absolute plenary discretion over immigration. And so for a federal judge to say, I'm not going let this go forward - suggests a sense that President Trump has really gone beyond the bounds of what other presidents have done.

SIMON: Let - let's get to the Supreme Court now. Judge Neil Gorsuch of Colorado, as we mentioned, has been nominated. Columbia, Harvard Law, Oxford, Supreme Court clerk, appellate judge - is he qualified, and does that matter politically?

CARTER: There's no question that he's - he is qualified. And in any other year with any other president, I would actually expect a fairly easy confirmation, even though he's a very conservative Republican, but this is a very unusual political time. The nation is deeply divided. There's a lot of pain and anger. And I think there are people who will try to hold up the confirmation just because they want to hold up the confirmation without regard to really anything else. I mean, too, important to remember that Judge Gorsuch is being nominated to fill Justice Scalia's seat. So it's not as though confirming him would change the balance on the court politically, but I think that Trump administration is in for a bit of a battle.

SIMON: Let me ask you about a sentence from Judge Gorsuch's remarks at the White House. He said, quote, "a judge who likes every outcome he reaches is very likely a bad judge, stretching for results he prefers rather than those the law demands."

CARTER: It's a very old fashioned view of judging, and a lot of us actually kind of like it, but we have to be realistic. It's perfectly plain that on this court, on both sides of the aisle - on both the left and the right - there are a lot of people who stretch for the results that they went to reach. And in fairness, Justice Scalia sometimes stretched for the results that he wanted to (laughter) - to reach. I think we would be better off if judges had a way of reasoning that enabled them to put aside a lot of their political preferences. But when you look at the many, many cases in the Supreme Court - big cases that are split 5-4, maybe 6-3 - we realize that much as that ideal is beautiful, it's probably not, in this world, attainable.

SIMON: What might a filibuster accomplish or not against that nomination?

CARTER: Well, when you think about filibusters of Supreme Court nominees, there was a time when there weren't any. In fact, the first Supreme Court nominee to face a filibuster we believe was Abe Fortas, and that wasn't until 1968. Filibusters against Supreme Court nominations, I think, are a serious problem. As I wrote about Judge Garland when he was nominated by President Obama, I really do believe that nominees are entitled to a vote. And if people want to campaign against them, fight against them and then vote against them, that's fine. But I think that when a president wins an election and when a president nominates a Supreme Court justice, I think the Senate ought to take that up. I thought it was shameful that the Republicans did not take up Judge Garland, and I think it would be shameful if Democrats tried to block action on Judge Gorsuch.

SIMON: Stephen, you're also a political novelist, and I just have to ask that the curt phone call with the prime minister of Australia this week and then President Trump tweeting against Arnold Schwarzenegger and his ratings on "The Apprentice" - what does to your mind, does this say about President Trump's leadership profile in these early days?

CARTER: Well, I don't know about the leadership part, but I do know that we have to accept that we have in the White House a man who is very impulsive and who - no matter what script his aides may give him, he is going to have the capacity to go off-script. I do think that some of the White House aides probably push him off-script more than others. So I think that the rollout of the Gorsuch nomination was very professionally handled, for the most part.

But if you look at something like the immigration order and the - incompetence is the only word I can think of - surrounding the rollout of that, you realize there's essentially - there's two Donald Trumps in the White House. And there's one who gets mad and gets impulsive and has a lot of braggadocio, and there's another one who may occasionally actually be able to do things in a reasoned way. And the question in the next few weeks and really few years is which of those ends up on top.

SIMON: Stephen Carter of Yale, thanks so much for being with us.

CARTER: Always a pleasure, Scott. Thank you.

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