Columnist Clare Higgins: Looking  beyond the first 100 days


Published: 04-28-2017 7:33 PM

Saturday is President Trump’s 100th day in office.

Trump promised a long list of achievements – from repealing the Affordable Care Act to withdrawing from NAFTA to proposing an infrastructure plan. Mexico certainly will not be paying for the “big, beautiful wall” and China is our newest friend.

According to Vox, “Of Trump’s roughly 30 concrete pledges, he has arguably just accomplished three of them, making progress on only a handful more.”

The president has gone from boasting about how productive he would be to dismissing the 100-day measure as “ridiculous.” But his White House has a scorecard of activities since the inauguration comparing his activities in the first 100 days to his predecessors: 30 executive orders compared to Barack Obama’s 19 and George W. Bush’s 11. The White House does the same with legislation. It is a little reminiscent of the “whose inauguration crowd was bigger” fight. This guy who railed against Obama’s “unconstitutional “use of executive orders clearly takes satisfaction that he has beaten him by 11.

But there is one accomplishment that the White House, the press and Trump supporters all agree on. Neil Gorsuch is now an associate Supreme Court justice. He was nominated by the president on Jan. 31 in a bizarre reality-TV-show-style announcement, and sworn in on April 7.

Gorsuch was praised by his supporters for, among other things, authoring a book titled “The Future of Assisted Suicide and Euthanasia,” in which he states that “All human beings are intrinsically valuable, and the intentional taking of human life by private persons is always wrong.”

However, Gorsuch believes that the death penalty and war are special cases and should be evaluated separately from suicide and euthanasia; two issues that barely came up during the confirmation process

One of Gorsuch’s first votes on the Supreme Court cleared the way for the execution of Ledell Lee, a man who was found guilty in a court where, according to the American Civil Liberties Union, the judge was having an affair with the assistant prosecutor and his appeals lawyer was a drunk. Lee also was denied a DNA test. So, we know where Gorsuch stands on the death penalty even though he hasn’t written a book about it. And now we know where he will sit for decades, long after Donald J. Trump is gone.

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As Trump gets rated for his first 100 days, I don’t think he should get credit for filling that vacant Supreme Court seat. While he repeatedly crows about the Gorsuch confirmation, he was at best an accessory before the fact. Majority Leader Mitch McConnell engineered the theft of this seat well before anyone thought that Trump would win the election.

When Antonin Scalia died, President Obama did exactly what his predecessors have done. He sent Merrick Garland’s name to the Senate. And then the majority leader began the slow-motion theft of the seat. There was no precedent for what McConnell did; other nominees had hearings and votes during election years, including Justice Anthony Kennedy who was confirmed in 1988.

And while McConnell conspired to keep the seat vacant, the Federalist Society was busy drawing up a list of acceptable conservative (i.e., anti-choice) judges for candidate Trump. They may very well have shared the list with all the GOP candidates, but Trump was the one waving it around as he worked to secure the votes of the religious right.

Then Trump won the election. McConnell protected the seat for a conservative judge and Trump just had to choose one from the list. Of course, the Democrats tried to mount a filibuster, but McConnell changed the Senate’s rules to ensure a clear path to the Supreme Court for Gorsuch.

There was a lot of talk about saving the fight for the next vacancy since Gorsuch is replacing Scalia – a conservative for a conservative. That analysis missed the point entirely. The appointment belongs to the President in power at the time of the vacancy. Not every president gets to appoint a justice, and some get to appoint quite a few. Obama was the President when Justice Scalia died and it was Obama’s appointment to make.

There is no rule or practice governing appointments in election years. If McConnell thought that Garland was a bad guy, then he should have worked to defeat him by lining up a majority of the Senate to vote against him.

Trump is president for another 1,363 days. here will be more vacancies on the Supreme Court given the ages of Justices Ginsberg, Kennedy and Breyer. Trump has his list and McConnell has cleared the way.

The only alternative is to work with others across the country to hold the current Democratic Senate seats and to win a few more. Can that be done? I don’t know, but the alternative is unacceptable.

Clare Higgins, of Northampton, a former mayor of the city, is executive director of the nonprofit Community Action! of the Franklin, Hampshire and North Quabbin Regions.