The Gorsuch nomination demonstrates that the optimal judicial nominee is one who shares a key (mistaken) belief--namely, the view that the president's inherent power to interpret his constitutional responsibilities as he sees fit--has been tested under fire, while serving in the trenches with the executive branch's legal advisers. In the course of that service, those who find the Department of Justice's defences of indefinite arbitrary detention, torture, and extrajudicial assassination distasteful can be encouraged to find more lucrative work in private practice.
This winnowing process leaves behind a hardened cadre of true believers willing to work on a government salary within the Beltway in search of a great reward --of the type extended to now-Justice Alito and soon-to-be-Justice Gorsuch. Their prayers may soon be answered, as President Trump looks to fill a record number of vacancies in the federal judiciary. In doing so, he may follow and expand this well-trod path for the most loyal zealots.
While the executive branch now has firm control over the Supreme Court and the D.C. Circuit (which is of particular importance since virtually all cases brought against senior officials are under its purview), the federal courts scattered across the land are capable of damaging the executive's agenda. While their rulings are subject to being reversed, they can stall the agenda and score rhetorical blows, which are particularly damaging to an Administration struggling for momentum and credibility.
It is no coincidence that the first serious challenge to the Trump Administration's use of executive orders came from the Ninth Circuit, which has historically been controlled by the nation's most liberal jurists. Washington v. Trump shows the executive sees this as a problem to be addressed. Indeed, it has understood this for some time. The only defence of Trump's immigration orders comes in the form of a dissent from the Ninth Circuit's decision to decline en banc review of a panel's review of the decision to grant the temporary restraining order barring access to refugees and immigrants from seven specified countries. The author of this very infrequent sort of dissent (which sketched out an argument that the Supreme Court should reverse the Ninth Circuit's ruling) was Judge Jay Bybee.
Jay Bybee was the chief of the legal service for the executive branch --formally known as the Assistant Attorney General for the Office of Legal Counsel, Department of Justice (the "OLC"). In that capacity, he signed the "torture memos" that specifically authorized waterboarding, along with other forms of abuse that had been recognized to be war crimes by such authorities as the International Military Tribunal for the Far East. Contemporary observers (such as the general counsel of the US Navy) criticized the opinion for its "catastrophically poor legal reasoning" about the legality of torture, but the Bush Administration attempted to destroy all the legal memoranda that criticized Bybee's conclusions.
Bybee obtained his position at the head of the OLC after serving for five years in a sensitive position at the Office of Legal Policy of the Department of Justice and then spending ten years in academia. At the time of his appointment to the Ninth Circuit, Bybee was fifty years old, which put him in the position of being able to influence that court's jurisprudence for decades to come.
Bybee's appointment put his colleagues on the court in a difficult position. They were required to extend him professional courtesies even after a investigation by the Office of Professional Responsibility released a report concluding that Bybee had committed "professional misconduct" by writing the torture memos. They also were forced to adjudicate appeals of a lawsuit suing him and other officials brought by the victims of the torture he approved, which were decided while Bybee was the subject of a war crimes investigation in Spain. Bybee weathered all of these storms, and can now look forward to more of his colleagues from the Bush Administration's legal offices joining him on the bench, as they are the pool from which the Trump Administration's judicial nominees will be drawn.
A recent leak from the office of the White House Counsel revealed that Trump has turned his attention to filling what one NGO called the "alarmingly high number" of federal judicial vacancies. The nomination crisis created by the Republicans during the Obama Administration (exemplified by the unprecedented failure to consider the nomination of Judge Merrick Garland to the Supreme Court) had given Trump an unparalleled opportunity to reshape the federal courts in his own image. Reportedly, Trump is looking at young conservative law professors in their late 30s and early 40s, who likely served in the Bush Administration as well. In short, Bybee and Gorsuch's subordinates and accomplices to the executive branch's atrocities.
Soon these jurists will likely sit in judgment on challenges to the renewal of "war on terror" programs that closely resemble those that they crafted and defended. Even the temporary and rhetorical judicial rebukes to executive illegality will then cease. It is difficult to imagine how it will be challenged in that event; with the doors to the courthouses barred, they will likely take place in the streets, for better or for worse.