So Trump picked Neil Gorsuch. As I noted, Gorsuch was my top pick of the finalists. He will be relatively easy to confirm and he seems like a reliable conservative with nothing bad, so I’m happy with this decision. It is also refreshing to finally see a Protestant nominated—if confirmed, he’ll be the first new one since David Souter in 1990.
However, I’m still concerned that his views on executive power could undermine Trump acting unilaterally on immigration. Indeed, many are already cheering this possibility.
We don’t know if the Trump administration asked him about his views on immigration, but it will have no power on him once confirmed. What could Trump have done? I am not particularly well connected to the federal judges or State Supreme Court justices, but I do know of a handful of judges who have privately expressed very strong views on immigration. Someone who is better connected should know dozens, some of whom would be confirmable. Maybe one of these people advised Trump to pick Gorsuch. However, the fact that Hardiman, who appeared to be weak on immigration, became a finalist makes this unlikely.
While I wish I could more confident that Trump’s pick is a solid immigration patriot, the real problem is that immigration is not a particularly important issue for conservative legal thinkers, and they are often on the wrong side. As George Washington University law professor Orin Kerr noted, “The reality that there is no Trump school of judicial thought. It's not Trump's area: He was delegating.” [Trump nominates Judge Gorsuch to the Supreme Court, Sidewire, January 31, 2017]
From all accounts, Trump is outsourcing judicial picks to the Federalist Society, which is not particularly reliable on immigration. Ultimately, we need to create a Trumpian legal philosophy. I have tried to point to the folly of some libertarian legal orthodoxy on issues like eminent domain and occupational licensing, but that obviously doesn’t amount to anything close to a legal movement. A good start would be:
Perhaps more radical departures from the conservative orthodoxy on corporate influence on politics, antitrust law and the like should also be considered.
While I know all conservative legal thinkers imagine themselves as paragons of principles, legal movements and philosophies adjust to or are created for cultural and political realities. If Trumpism become the “new normal,” the legal movement should follow.