“A punch in the gut” is how one GOP strategist, speaking to Axios, described President Donald Trump’s decision to throw in the towel on the 2020 Census litigation. There is no sugarcoating it: The president folded. It’s a big loss for Trump, the attorney general, the Constitution and the rule of law.
The president had been dealt a bad hand by Commerce Secretary Wilbur Ross and by generally bad lawyering until Attorney General William Barr showed up months ago. Then the Supreme Court sat on the decision with the clock ticking. Nevertheless, Chief Justice John Roberts laid out an exact map to get the question on citizenship restored. Disappointingly, Trump and Barr chose not to follow the map.
But the census case was unique in the eyes of that Federalist Society wing of Trump supporters, who are especially concerned about the rule of law. For this set of Trump backers, it isn’t about immigration policy or redistricting. It’s about the Constitution. Like the four dissenters in the census case - the other four conservatives on the court - they are distressed by the prospect of district-court judges swarming over the decision-making of an executive-branch agency and calling out “true” or “false.” It’s a serious breach in the wall of separation between the branches.
The president and the attorney general can mitigate the damage by fighting in the district courts with a new statement of purpose and looking toward the 2030 Census. Indeed, the president could - should, actually - change his mind and direct Barr to file an emergency motion for reconsideration with the Supreme Court. Getting bounced again would be preferable to quitting and would fix responsibility for this fiasco.
In the meantime, the president can deliver some tough talk to his White House counsel’s shop and the Commerce Department - indeed, every department in the executive branch where too many officials have approached legal questions with almost unfathomable sloppiness. Barr is no doubt already delivering the same message throughout the Justice Department.
Amends also need to be made with the Federalist Society wing. The White House counsel’s office has slowed to a crawl on judicial nominees, with two vacancies on the U.S. Court of Appeals for the 2nd Circuit and three on the 9th Circuit languishing. Trump needs to get his mojo back on judges, especially on nominating women for the circuit courts: Of the 44 nominees confirmed or pending, only nine have been women.
Every Democratic would-be nominee will be slashing at Trump with this number, but he can act immediately to begin to blunt that. He is surrounded by terrific potential judges like Assistant Attorney General Beth Williams (who clerked on the 2nd Circuit) and Carol Platt Liebau, the president of the Yankee Institute for Public Policy Studies and a former managing editor of the Harvard Law Review. The 9th Circuit is overflowing with extraordinary female lawyers and judges. There is no need for this disparity of representation on the circuits.
The president needs to kick some rear ends into gear on judicial nominees generally and on these five vacancies specifically. Senate Majority Leader Mitch McConnell, R-Ky., and Judiciary Chairman Lindsey Graham, R-S.C., are ready, willing and able to move five quality nominees, which would lessen the bitter aftertaste of the collapse on the census case.
I spent much of the Friday edition of my radio show asking callers whether they were supporters of Trump and, if so, were they disappointed in the president’s decision? A clear majority of the many Trump supporters who jammed the lines were still backing the president 100%. But the rest were deeply disappointed, and a few were furious - not for losing, by the way, but for not fighting. That’s what they want in the president: a refusal to quit. They didn’t get it.
In what is shaping up to be a base election like 2004, Trump can’t lose much, if any, of his base. He needs to revisit what happened here and begin to clean up on Aisle Three. He needs to rally his supporters to an agenda bigger than this incredibly strong economy. He has to be the Constitution’s defender first and foremost. He can start by digging in with thedistrict courts on the census question and follow up with a slate of great judicial nominees for the circuits.
Hugh Hewitt is a columnist with The Washington Post.