JOURNAL EDITORIAL REPORT

Why the left opposes Betsy DeVos; What can we expect from Trump's tax plan?

Center for Education Reform founder Jeanne Allen responds on 'Journal Editorial Report'

 

This is a rush transcript from "Journal Editorial Report," February 11, 2017. This copy may not be in its final form and may be updated.

PAUL GIGOT, HOST: Welcome to the "Journal Editorial Report." I'm Paul Gigot.

A federal appeals court in California on Thursday upheld a temporary suspension of President Donald Trump's executive order restricting travel to the United States from seven countries. The three-judge panel of the Ninth Circuit Court of Appeals unanimously ruled that a Seattle judge's earlier restraining order on the new policy should remain in effect.  President Trump called the ruling a political decision and vowed that had his administration would ultimately prevail.

Joining the panel this week, Wall Street Journal columnist and deputy editor, Dan Henninger; columnist, Kim Strassel; and Bill McGurn; and editorial board member, Joe Rago.

So, Joe, good decision from the circuit or not?

JOE RAGO, EDITORIAL BOARD EMEMBER: On the legal merits, no. It really shows the way -- the legal fight over this order has escalated. The ninth circuit has ruled, essentially, inserted itself into the process, which traditionally belongs to the political branches, to Congress and the president, and it's second guessing their determinations about keeping the nation safe.

GIGOT: And they used due process. They said denial of due process of law, to who?

RAGO: To legal permanent residents, illegal aliens inside the country and even, in some cases, the classes of foreign nationals outside the country who have never been here in the first place. It's based on a Supreme Court precedent from 2008 called Boumediene versus Bush, which related to enemy combatants at Guantanamo and exporting that beyond just detention. It's really dangerous.

GIGOT: So this has become what started a debate over immigration policy, has now become a debate over the second judicial debate over the powers of the executive to conduct national security policy.

DAN HENNINGER, COLUMNIST & DEPUTY EDITOR:  Oh, no question about it, Paul.  The beginning of the decision gets into the case of whether the decision, the stay was reviewable -- the order was reviewable at all, and the government apparently arguing that it wasn't, and the president had authority in this area, and the court goes on at great length about whether a decision like this is reviewable. And they assert that while they give difference to the president in matters of national security, they deny that an order like this is beyond reviewability. So now we have very serious fight that's going to take over president's authority in national security.

GIGOT: This isn't a fight, Bill, that a new president really wants, because of the way they executed this, because of the ambiguity in the law, does it cover legal residents with green cards or not, something cited explicitly by the ninth circuit as a reason for upholding the restraining order. They -- the sloppiness of it made it easier for the --

BILL MCGURN, COLUMNIST: Yeah, that's all passed now. He did it. I think they made the mistake. And I think kind of -- if I were advising, they have to eat this one, because I don't think they're going to get relief at the Supreme Court the way it goes now. At the best, I think they get a 4-4 tie and -- which would lead the ninth circuit.

They are to focus on--

GIGOT: That would leave the ninth circuit ruling intact?

MCGURN: Right, intact. Now, it didn't rule on the merits, so there's a lot of case they could do if they redrafted it. There's a lot of options that they have where they could go.

I think they have to concentrate on what they want, their strongest case, which is about vetting. And it got tangled up with immediately suspending people that had legal visas and so forth. And they have to focus -- the best thing when you're making these kinds of orders is to focus narrowly on what you want so you don't give an excuse.

I will say one thing, this was a very bizarre kind of ruling in different areas. And if the judges did that because they were reacting to Donald Trump saying "so-called judge" --

GIGOT: Judge.

MCGURN: -- they are worse than he is, because he made an intemperate remark, and if they would have had a ruling that was different, had he not said that, I think that's very troubling.

GIGOT: Kim, on that vetting point, John Kelly is the Homeland Security secretary, why couldn't they just scrap this order and say General Kelly at Homeland Security is going to impose a lot more extreme vetting. He's going the make the rules stricter and handle it that way?

STRASSEL: They absolutely could, and that is something that is already debated. Look, even when they went and argued in front of the ninth circuit, they suggested, maybe you judges could just, you know, change this order around a little bit in a way that would make it more acceptable and we can move forward from that, and the judges rejecting that saying it's not our job to come up with executive orders, you need to do this yourselves. That was nothing.

But, look, I disagree a little bit. I think, having made this mess, they have a responsibility to clean it up, because, as you said, this has now escalated into something bigger than immigration.

GIGOT: Yeah, but, OK, Kim --

STRASSEL: And this precedent put on due process is sort of a big deal.

GIGOT: It is. But if you appeal to the Supreme Court now and the Supreme Court takes the case and it finishes 4-4, which means the ninth circuit stands, or 5-3 because Justice Anthony Kennedy wrote Boumediene, which Joe cited, if it's 5-3, you lose big time. Why don't you withdraw the order, rewrite it later, or not at all, or live to fight another day?

STRASSEL: I don't know. I think if you step back and you look at the actual merits of this case, though, what we are talking here is about both constitutional authority under Article II for the president to manage who comes into the country, also statutory authority given to him by Congress.  I'm not entirely sure that even the liberals on the court wouldn't believe that that is fairly clear-cut and that he might not get a positive ruling.

GIGOT: Dan, what is the lesson here, from your point of view, that the White House should draw from this episode?

HENNINGER: Well, don't do executive order like this until you have a government.

(LAUGHTER)

It never hurts.

GIGOT: That would seem to be pretty basic.

HENNINGER: Jeff Sessions was just confirmed this week, and now he's the attorney general. All of this done was done without Jeff Sessions as attorney general. Anybody running any kind of organization or business out there would say you can't get out over your ski, so to speak, with such something of this importance and, please, don't -- once again wave order into existence without having been vetted. Now, we understand why you have lawyers look at things like this.

GIGOT: All right, thank you, dana

When we come back, Vice President Mike Pence cast the tie-breaking vote for Education Secretary Betsy DeVos after a bitter confirmation fight. So, what was behind the Democratic opposition?

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

VICE PRESIDENT MIKE PENCE: On this vote, the ayes are 50 and the nays are 50. The Senate being equally divided, the vice president votes in the affirmative and the nomination is confirmed.

(END VIDEO CLIP)

GIGOT: That was Vice President Mike Pence Tuesday casting a historic tie- breaking vote to confirm Betsy DeVos as education secretary. DeVos, a philanthropist and school choice advocate, faced fierce opposition from the Democratic left with every Senate Democrat and two Republicans ultimately voting against her.

Jeannie Allen is the founder and CEO of the Center for Education Reform, and she joins me now from Washington.

So, good to have you here. Good to see you again.

JEANNIE ALLEN, FOUNDER & CEO, CENTER FOR EDUCATION REFORM: You, too, Paul.

GIGOT: How do you explain the ferocious opposition to Betsy DeVos for, let's face it, is a relatively minor cabinet post.

ALLEN: Right, and those working on educational choice were mystified because here's this relatively obscure woman working hard for school choice, and the things were flying all over the place, and Senate staffers and congressional people getting mean calls and being accused of doing all sorts of nefarious things. It really comes down to something that Daniel Henninger pointed out in one of your pieces the other day, which is this is really about union power, and not Betsy DeVos.

GIGOT: How much of it goes back to the fact that she supported, worked for something called the American Federation for Children, which supports school choice - candidates that support school choice at the state and local level? It's a counterforce for the teacher's union. And they're winning in a lot of the elections. Was that revenge against her for that?

ALLEN: Yes, it's revenge against her for the fact that not only was AFC, but all the educational-choice progress we have made in 30 years. It's a mainstream idea now, Paul. This is not something the unions have been able to stop. They have been able to slow it down. And don't forget she comes from a state that basically removed many of those iron union protections.

GIGOT: Right.

ALLEN: So, the unions have been livid. They lost 30 percent of members in states like Michigan and Wisconsin. And school choice and charter schools allow teachers and parents to make choices and have the freedom to do education the way they want. Oh, my gosh, you would think that was like a crazy idea.

GIGOT: I'm a little worried here about one thing -- and you tell me if you agree -- that school reforms, school choice has been, for a large period of time, bipartisan. I mean, President Obama was for charters. At least he said he was. Bill Clinton was for charters. There are a lot of Democrats -- Cory Booker was for charter schools, the Senator from New Jersey, who voted against Betsy DeVos.

ALLEN: Right.

GIGOT: Are we in danger here of the school choice movement becoming a partisan issue, Republicans for it, Democrats against?

ALLEN: It is a concern and it's one that a lot of us are looking at. But the reality is Washington has always been partisan about school choice when the states have enjoyed a tremendous of what I call tri-partisanship. So, we don't suspect it will have a negative effect on the states, where, by the way, let's remind ourselves, that this is where issues play out, right?

GIGOT: Right.

ALLEN: She can be a leader, a great advocate publicly, but really her focus has to be on rolling back all of those regulatory burdens that Washington has impose over time on schools and letting states and communities do what they do best, which is enacting programs that we are talking about right now.

GIGOT: From K-12, at least, that education system -- her main role is going to be bully pulpit?

ALLEN: Yes, absolutely.

GIGOT: Because they don't spend all that money.

Let's broaden this a bit beyond Washington and let's look at where you think the school-choice movement in America is right now? How much progress have we made in the last 20, 30 years?

ALLEN: Well, many of us, including myself, don't believe we have made nearly enough progress. We also have to remember that for 30 years we have actually rewound an education system that took 150 years to build. The fact that we have gotten more than three million kids in charter kids, that we probably have another half a million schools of choice, schools, districts like D.C., have as many as 45 percent of kids in school of choice. The market share is growing. And this is an issue that people are more comfortable with. But there's always a battle at the state level and it's not just about Democrats. I mean, we're fighting right now in Kentucky with Republicans to create a truly meaningful charter school program that they're getting push back in their rank and file in school boards.

GIGOT: This Republican opposition is interesting. I've seen it in a lot of cities. Tt was true in suburban Cleveland when a Republican governor tried to introduce school choice there. And so, the unions can get to Republican legislators as well. For example, we had two Senators, one from Maine, one from Alaska, who voted against DeVos. Is this, in part, a rural/urban split, too?

ALLEN: It's a rural/suburban/urban, right, because suburban people think their schools are great.

GIGOT: Right.

ALLEN: Even if they're paying for tutors out of their pockets, most of the time, and even through proficiency across the country is less than 40 percent for all kids, right?

GIGOT: Sure.

ALLEN: But we have convinced people that because the school looks good and the teachers are nice and the kids seem to be doing OK, that we're doing OK. The reality is we're not doing OK across the board, but Republicans have lulled themselves into a false sense of complacency, that this is an urban issue, and it's that very urban focus that made school choice bipartisan came back to bite us when Betsy DeVos was nominated. It was those people, the left and the progressives, that like school choice, that suddenly found themselves not able to vote for her.

GIGOT: Interesting.

Now, some people think that some supporters of school choice think, OK, they will support charters, but really vouchers are a bridge that would allow you to go to any school, private, public, whatever, are a bridge too far, and we should throw the voucher folks over the side because that's too controversial. Do you agree with that political strategy?

ALLEN: No. So, this is really interesting. This has revealed a fissure in the education reform world that's been there and the people didn't see it publicly. The reality is that divide, like we'll throw vouchers off to get charters, it's actually only at elite level. The rank-and-file people who are in schools, charters, voucher-based schools, they are choice people. They don't care what kind of choice. Most parents just want an option and the power to do what most affluent Americans do every day. What you're seeing in the divide is not represented at the local level, and that's why we've made the progress we have.

GIGOT: Thank you for being here, Jeannie Allen. Great to see you.

ALLEN: Thanks, Paul.

GIGOT: When we come back, a showdown in the Senate as Democrats continue to ramp up their attacks on President Trump's cabinet nominees.

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

SEN. MITCH MCCONNELL, R-KY., SENATE MAJORITY LEADER: The Senator, who has impugned the motives and the conduct of our colleague from Alabama, is warned by the chair. Senator Warren, quote, said "Senator Sessions has used the awesome power of his office to chill the free exercise of the vote by black citizens."

SEN. ELIZABETH WARREN, D-MASS.: I am surprised that the words of Coretta Scott King are not suitable for debate in the United States Senate. I ask leave of the Senate to continue my remark.

UNIDENTIFIED SENATOR: Is there objection?

MCCONNELL: I object.

WARREN: I appeal the ruling --

(CROSSTALK)

UNIDENTIFIED SENATOR: The objection is heard. The Senator will take her seat.

(END VIDEO CLIP)

GIGOT: Massachusetts Democratic Elizabeth Warren rebuked in the Senate Tuesday night for a speech opposing now-Attorney General Jeff Sessions.  Republican said it violated Senate Rule 19, which prohibits members from impugning the motives of their colleagues. The incident, just the latest in a series of showdowns as Democrats continue to slow-walk President Trump's cabinet nominees.

We are back with Joe Rago, Kim Strassel and Bill McGurn. And Wall Street Journal editorial member, Colin Levy, also joins the panel.

Let's -- before we get to the Elizabeth Warren hijinks, Bill, let's talk about Jeannie Allen talk about school choice --

MCGURN: Right.

GIGOT: -- and opposition to Betsy DeVos.

MGGURN: Right.

GIGOT: How do you explain that?

(CROSSTALK)

GIGOT: She doesn't have a lot of money to spend.

MCGURN: She doesn't have -- I think it makes sense in that she stands for everything that the Department of Education, which was created to please the teachers' unions --

GIGOT: By Jimmy Carter.

MCGURN: -- does not -- by Jimmy Carter. So, in that sense, the focus on her at the expense of all the other cabinet members who have real threats and can use their power in ways that really might upset the progressive agenda just shows you the teachers' unions are so powerful and that's where they are going - that's the hill they going to die on for that.

GIGOT: The Department of Education is their fiefdom. It has been all along.

MCGURN: Right.

GIGOT: Except maybe some time in the Reagans under Bennett.

MCGURN: Right.

GIGOT: And they want to run it.

MCGURN: They are afraid of the idea of choice because they know all the moral credibility is on that side. What argument is there for keeping a poor or minority child in a failing public school? There's no argument except we need it for our pensions for the teachers' union, right?

GIGOT: Colin, do you think Mitch McConnell did the right thing, turning to Elizabeth Warren and invoking that Rule 19 in the Senate floor?

COLIN LEVY, EDITORIAL BOARD MEMBER: Let's put it this way, Paul, I don't think Mitch McConnell does very many things by accident. Now, obviously --

(LAUGHTER)

GIGOT: Truer words were never said. This is Mr. Deliberation.

(LAUGHTER)

LEVY: So, you know, is there any question that this is going to become a big fundraising meme for Democrats? Sure. But is it going to become a big fundraising meme for Republicans? Sure. So, this is really a protest that was made for TV, so I think it's going to work both ways.

GIGOT: Kim, it happened late at night. If you didn't -- if you didn't invoke that Rule 19, you wouldn't have -- nobody would her heard her speech, nobody would have cared what she said. Instead, she had the opportunity now to do 24/7 television, get this out. It's a YouTube video that's gone out viral. I mean, just from a prudential political point of view, what was McConnell thinking here?

STRASSEL: I agree with Colin. He doesn't do things by accident.  Remember, as Colin said, many on the right think this is beneficial, Elizabeth Warren is setting herself up as the 2020 presidential candidate for the Democratic Party, and this is a way for Republicans to immediately begin to attack her, highlight her, and rally their base.

I would like to add to just, not to entirely make Mitch McConnell all about calculation. This is a guy who deeply believes in the institution of the Senate and believes that Harry Reid had destroyed it, all of its procedures, all of it's the good precedent. He wrote about this in his book. And I think he does believe deeply that there needs to be a return to some of the civility of the past.

GIGOT: Good luck with that civility point.

But, you know, I think Democrats are saying, look, Ted Cruz all but called Mitch McConnell a liar on the Senate floor last year. He wasn't -- they didn't invoke Rule 19 against him. Why do it against Elizabeth Warren if you won't do it against Ted Cruz?

RAGO: I think it's a context of larger breakdown in the comity and the civility on which the Senate runs. They rely on decorum, procedural votes --

GIGOT: Unanimous consent.

RAGO: Right. Democrats have been denying all of that to drag out the confirmation process of President Trump's cabinet to the point where it's the slowest pace since Eisenhower and, by some measures, since the 19th century. This was kind of a warning shot saying, we need to get back to the old ways or this institution is not going to function.

GIGOT: Should they have silenced Ted Cruz last year?

RAGO: I don't think Ted Cruz or Elizabeth Warren are any danger of --

(LAUGHTER)

GIGOT: That is for sure.

What about this strategy, Elizabeth Warren, Cory Booker, they are setting themselves up to run for president, and it seems a requirement of it, Bill, is going to be total opposition to anything Trump?

MCCGURN: And if that means throwing out positions you had before, such as favoring school choice, that goes with it. That's their problem.

Rahm Emanuel was down in Stanford this week --

GIGOT: The mayor of Chicago.

MCGURN: Mayor of Chicago, not a shrinking violate. And he took the Vince Lombardi argument, winning is everything. You don't get to influenced public policy unless you win the vote. And he thinks that a lot of the protests and these games -- look, Democrats have a weak hand, and his advice, which I would give to Democrats if I were in that position, is look for wedge issues that divide Republicans -- Russia might be one, trade might be another one, various solutions on ObamaCare might be another one - - and try to create that division. That's how you come back.

GIGOT: All right. Still ahead, as Republicans eye a historic tax overhaul, we will talk to House Ways and Means Chair Kevin Brady about the challenges that lie ahead.

(BEGIN VIDEO CLIP)

TRUMP: We are going to be announcing something, I would say, over the next two or three weeks that will be phenomenal in terms of taxes.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

GIGOT: Republicans on both ends of Pennsylvania Avenue eyeing a once-in-a- generation opportunity to overhaul the U.S. tax code.  And with President Trump promising Thursday to release the White House's proposal in the next two or three weeks, what can we expect from Republicans in Congress, and when can we expect it?

Let's ask Texas Congressman Kevin Brady. He's chair of the tax writing House Ways and Means Committee.

So, Mr. Chairman, welcome.

REP. KEVIN BRADY, R-TEXAS, CHAIRMAN, HOUSE WAYS AND MEANS COMMITTEE: Paul, thanks for having me.

GIGOT: So President Trump said two or three weeks, now he said that's when he's going to drop a bill in the hopper. You already have one outlined.  Is that going to be his bill or hers?

(LAUGHTER)

BRADY: Good point and good question. It's exciting from the standpoint that you have a president willing to lead, all in for economic growth, regulatory reform, a number of those issues, and knowing tax reform, we have to fix this broken tax code if we want to get the economy going.  That's terrific news.

I don't know yet what that announcement is going to be. We have engaged almost since the day after the election with the economic team. We started our tax plans with 80 percent, I think, similarity. We have continued to make progress since then. I'm hopeful this is comprehensive. And I'm hopeful, like the Republican blueprint, it is designed for growth, for job, wage and economic growth.

GIGOT: You would basically like to get to a common proposal that the House and the White House can vote for?

BRADY: I think that would be very important. It doesn't have to be word for word, but if we get the bold concepts right, we would be able to work through the other elements of it. We are ready to go. We have obviously worked five years, Ways and Means Committee, to get into this position.  Speaker Ryan accelerated it all last year with our blueprint and release.  So, we are -- and I brought our Ways and Means members back during the holidays to get ready for this announcement.

GIGOT: I want to ask you about of the bill that's become the most controversial, which is the border adjustability provision. It's a border fee on imports to the United States. It would be 20 percent if the corporate tax rate is 20 percent. Why is that not a tariff?

BRADY: So, because it's tax reform and it recognizes -- right now, our American companies' workers are fighting with one hand tied behind their back and that's because our competitors, China, Canada, Mexico, the European Union, they all border adjust their tax. They technically slap an import tax on our products. When they go their direction, take it off of theirs. We are one of the few countries, other than North Korea and Cuba, and a few others, who don't do that. So, today, under the current tax code, we favor foreign products over U.S. products here and overseas as well. So, our proposal actually isn't an import tax. It is to tax all products in America equally. We have a single test. Is the product consumed in the U.S.? If it is, it will be taxed at a low 20 percent business rate. So, we don't care where it is produced, we don't care where you try to book profits or put your patents. The question is, is it taxed.

GIGOT: But you know, because you've been feeling the heat, that that's not how the retailers feel.

BRADY: Yeah --

GIGOT: Walmart and others are saying, wait a minute, we are going to have to suddenly pay 20 percent more for the products that we import. And even more than that, some of the companies that have imports as inputs into their products are saying, we can't deduct our inputs, imported inputs, off our tax bill, we can deduct them if they are made domestically. That's industrial policy.

BRADY: So I disagree, and here is why. One, for the first time, we would be taxing equally in America. This, in effect, is tax on foreign labor and foreign capital, not U.S. laborer and U.S. capital. And we know the economy isn't stagnant, nor is our currency markets. So, we know from past history, our economy and our exports strengthen. There's no question. We will be selling more "made in America" products around the world. That's going to adjust. Those imports will get cheaper to buy for them. So, I'm convinced, not only does it rebalance, but because we have a much stronger economy here, and we've eliminated every tax incentive to move companies overseas, this is a major increase in growth.

GIGOT: All right, but what if you -- and I take your point about this will help growth. But what about the U.S. manufacturing company which imports inputs that go into their products that they have to then sell, and they're suddenly saying, wait a minute, now I have a 20 percent fee and I can't deduct it from my taxes, whereas my competitors can. Is that really fair?

BRADY: Yes, it is. Because the deductible of the U.S. product or input only carries the burden of our labor and capital and very high tax rates, so deducting that foreign capital and foreign labor rates is an equal deduction. This is a pretty simple approach. At the end of the year, a business adds up its export sales and discards them. It's not taxable. It adds up its imports cost, discards them, not deductible. So, it is the simple but pretty powerful equal taxation.

GIGOT: Here is the other objection I hear for it. Prices are sticky, right? You can't immediately go out and raise your prices if you're in business all of the time. So, you're going to have a transition period here and is the transition period going to be messy enough so that we could get -- enough uncertainty in the economy that, between now and, say, the 2018 election, we have a real stumbling-along economy, and that won't help you guys.

BRADY: Yeah. So, that's a fair criticism. So, we are proposing bold changes here. The right's expensing, taxing equally in the U.S., and no longer taxing around the world, all incredibly pro-growth, big changes. We don't expect industry to pivot on a dime. These business models are tied to tax policy from three, four, five decades, which is why your point, the transition and design of these provisions, are critically important. So, we've engaged importers, whether they are import refineries or retailers, on how would you design this because their concern -- some are wild concerns. Let's say the valid ones, what if the dollar doesn't adjust as much, or quickly the transition to make sure we accommodate those concerns is exactly what we are working on. And the more I learn about contracts, models, supply chains, the more convinced I am that we can do it right.

GIGOT: Chairman, Brady, thank you so much for being here.

BRADY: Thanks, Paul.

GIGOT: Coming up, as President Trump's pick for the Supreme Court continues to make the rounds on Capitol Hill, we will look at the Democratic claim that he's out of the mainstream.

(COMMERCIAL BREAK)

GIGOT: President Donald Trump invited several red-state Democrats to the White House Thursday in hopes of shoring up their support for Supreme Court nominee, Neil Gorsuch. Four of those Senators are up for re-election next year in states that the president carried in 2016. The meeting came as Gorsuch continued to make the rounds on Capitol Hill, making some news of his own when he reportedly told Democratic Senator Richard Blumenthal that President Trump's attacks on the judiciary were "disheartening and demoralizing," comments the president says were misrepresented.

We're back with Bill McGurn, Kim Strassel, Joe Rago and Colin Levy.

So, Colin, let's take the comments by -- reported comments by Judge Gorsuch. Why would he say something like that, and is it a problem?

COLIN LEVY, EDITORIAL BOARD MEMBER: No, Paul. To start off, I really don't think it's a problem. I think what it shows is that he is an independent mind, he's a strong judge, and he has strong views on the judiciary. These are things that Republicans should value and things that President Trump should value. You know, and these are things that the Democrats have been complaining about all along. This has been what they have been saying, well, the more important that we want to make sure that Judge Gorsuch won't be a rubber stamp for Trump's agenda. He came out and made these comments and, you know, they were reasonable comments. They weren't over the top. I don't think they are going to hurt in any way.

GIGOT: We don't know in what context were made, actually. Blumenthal says they were aimed directly at Trump. And perhaps -- and Gorsuch's folks saying, no, they were more general about the attacks on the judiciary. We don't know the specific context.

But is this going to get him, do you think, a single Democratic vote, these comments, because of the independent point you have just made?

LEVY: No. Well, I don't know -- he may end up getting a few Democratic votes, indeed, if there are red-state senator who is need to come around.  But you also have to remember, on this point of, you know, the independence of the judiciary, this is something that we are talking with Donald Trump, but came up with President Obama.

GIGOT: Right.

LEVY: You had these incidents where President Obama was sort of scolding the Supreme Court about Citizens United during the State of the Union. You had President Obama's comments when the Supreme Court was considering the health care law, sort of saying, well, I sure hope the Supreme Court is going to make a great decision here.

(CROSSTALK)

GIGOT: Which means the decision I want, not --

(CROSSTALK)

LEVY: Right. The decision --

(LAUGHTER)

LEVY: Right. Exactly. The decision that I expect. So, you know, these things have been telegraphed before. This isn't the first time, let me put it that way, that the president has tried to put his finger on the scales in some way regarding the courts.

GIGOT: Any chance, Bill, that the president could dump Gorsuch as the nominee?

BILL MCGURN, COLUMNIST: I don't think so. I think what we are seeing is the overwhelming likelihood that he gets through. And the Democrats I think have realized this and they say, well, maybe we can foment some mischief with Donald Trump.  I think we are seeing this because he's -- I wouldn't say he's a lock, but it's going to be very hard for the Democrats to block him. And some Democrats have said, I wouldn't support a filibuster, right, so.

GIGOT: Yeah. That it would take 60 votes.

MCGURN: Right.

GIGOT: Although, Chuck Schumer, who is the majority leader, is saying he still has to pass that 60-vote threshold --

MCGURN: Right. Right.

GIGOT: -- but, Joe, without saying we will actually use, employ a filibuster. And you can get 60 votes on just a regular vote sometimes and get confirmed?

JOE RAGO, EDITORIAL BOARD MEMBER: Right. And you have to consider that President Trump is going to get another nominee for the Supreme Court in the next four years. So, you have to think about the strategic interest of Democrats saying, well, if we are going to blow up the filibuster, we are going to do it on that next another nominee, not waste it now on a nominee who is really within the legal mainstream.

GIGOT: But, Kim, you got some criticism of Gorsuch from what I would call the Trump supporters on the right, some of the talk-radio crowd, saying, how dare he say come out and say and even imply that there was something wrong with criticizing the judiciary, he's a wimp, maybe the president should dump him. Is that going anywhere? Is this something that you're picking up inside the White House, anxiety about Gorsuch?

KIM STRASSEL, WASHINGTON COLUMNIST: I don't think there's any anxiety.  The view within the White House is this was a homerun pick, OK? This is a guy who is likable from the outside. He is making the rounds. You've already had eight or nine different Democrats either say outright or suggest that he deserves an up-or-down vote, which suggests there isn't much of a move for a filibuster. So, you've got people who complaining.  But this is a guy no one can say otherwise. And this is an incredibly and talented judge, who is well within the, quote, "mainstream," as Democrats would like to say otherwise, but he is. And I think the Trump administration knows it would be deadly to try to start this over.

GIGOT: All right, yeah, it would hurt any potential nominee he named to succeed after this.

Colin, what have we learned in the last week or so about Gorsuch's philosophy or judicial record?

LEVY: Yeah, really interesting, Paul. Good question, because one of the things we have looked is that he has about 800 opinion that he wrote while he was on the tenth circuit, and of those, only about 14 were dissents.  So, that's 98 percent in agreement with his colleagues. So, that's on a circuit, by the way, where -- that tilts Democrat. Among active judges, seven Democrats to five Republicans, who were appointed by Republican and Democratic presidents. So, that's really strong evidence that he's not some, you know, sort of crazy that the Democrats would like --

(CROSSTALK)

GIGOT: Right.

Of the case that he wrote, the opinion that he wrote that went to the Supreme Court, he was upheld on seven of those by the Supreme Court for them unanimously, right?

LEVY: Yeah, that's exactly right, Paul. Those four -- those four that were upheld unanimously, it's really important to look at that, because those are cases that really went across the spectrum and didn't put him right into this sort of political maelstrom that everyone would like to put him in.

GIGOT: Thanks, Colin.

Thank you all.

When we come back, Republicans in Congress under attack from some on the right who say they are not moving fast enough on ObamaCare, but is the plan to repeal and replace really stalled? We will have an update, next.

(COMMERCIAL BREAK)

GIGOT: Republicans in Congress under fire from both the left and the right over ObamaCare, with some conservatives saying the effort to repeal and replace the controversial law is not moving fast enough.

White House press secretary, Sean Spicer, was asked about that claim Wednesday, and here is what he said.

(BEGIN VIDEO CLIP)

SEAN SPICER, WHITE HOUSE PRESS SECRETARY: I think it's a mammoth thing to repeal and replace. I think there's no question of the president's commitment to doing this.

We can either do it quickly, as the Democrats did, and end up with monstrosity, where premiums go up, access is limited, or we could do it right. And I think the president, while he wants to get this done as soon as possible and understands what's at stake, he wants to do it right.

(END VIDEO CLIP)

GIGOT: We are back with Bill McGurn, Joe Rago and Kim Strassel.

So, Joe, is this -- is this stalled? Is this a sell-out by Republicans or what?

RAGO: No, I think the predictions of failure are pretty immature. Look, if they were moving faster, Democrats and liberals would be saying, why are you rushing, why aren't you thinking through the consequences.

(LAUGHTER)

They get you coming and going. I think what we are seeing is what we want out of policy making, which is deliberative, thoughtful, pragmatic and realistic.

GIGOT: But then why, Joe, is Senator Mike Lee and some on the right saying, look, you're not repealing this fast enough? All Republicans agree on repeal, OK? They don't all agree on what to replace it with. So, let's get repeal done first and then we will debate replace?

RAGO: They are doing repeal. The problem is that there's about 10 million people on the exchange, 20 million people covered overall.

GIGOT: These are on the ObamaCare health exchanges where you buy insurance?

RAGO: Where you buy subsidized insurance. There will be a lot of disruption if they just repeal this and create a lot of uncertainty about what comes next.

GIGOT: And that's the problem, you end up -- you could end up with a disrupted insurance --

(CROSSTALK)

RAGO: Basically, accelerate all the problems that we are seeing on the exchanges now, which is rising premiums, declining enrollment and insurers quitting. What you want to do is provide some predictability and certainty so there can be a smooth and orderly transition process to a new reform process.

GIGOT: What's the strategy now?

RAGO: The strategy now, they are going to push as much replace into the repeal bill as they can. A lot of -- they're going to -- Tom Price got confirmed at 2:00 a.m. on Friday.

GIGOT: That's Health and Human Services secretary.

RAGO: That's right. There's going to be a lot of stuff coming out of HHS, which is going to provide some of that stability, and then they are going to move on individual replace components to try to move to reform system.

GIGOT: Do you think that'll happen this year?

RAGO: I think that will happen by the end of the spring.

GIGOT: By the end of the spring, OK.

So, Bill, once the Republicans repeal ObamaCare, they own it.

MCGURN: That's the Democratic strategy.

GIGOT: It's no longer ObamaCare. It's TrumpCare.

MCGURN: Right. That's a lot of the Democratic strategy, let them do the easy part, repeal, which they can, and then all the problems Joe talked about, people that had some benefits and will lose benefits, and then don't work with them on the solution, so Republicans look like they fit the old cliche, we are taking something away from people, we are making America sick again.

You know, it's funny Trump gets accused of being impetuous in some areas.

GIGOT: Right.

MCGURN: This area, I think they are right. And it's not just because it takes time. It also takes time to explain to the American people what we are doing. We're not trying to go backwards. You and I, none of us at this table like the system we had before ObamaCare either. It was not a market-driven accountable system.

GIGOT: And that would be a mistake to go back to that.

MCGURN: Absolutely. And Republicans have to explain that. I think they will. I think they will.

GIGOT: So you think they'll do it.

Kim, are they going to get any help at all from the Democrats on the replacements parts of this?

STRASSEL: This goes to the strategy that Joe outlined. The reason that they are taking their time and they're also going to do a replace on a piece-by-piece basis is because this is their best shot to get Democratic help. You take a specific part of the law, you look around -- a specific idea for reform, you look around to see which Senate Democrats might be able to be brought in, or what you might need to give in return to get them to help with that and, hopefully, put together coalition after coalition of 60 votes for various parts of replace. That is eminently possible.

GIGOT: Do you think that that's possible for some of the elements or is -- because I'm -- I don't know. The resistance from Democrats is pretty across the board these days.

STRASSEL: I think you break it out on a state-by-state basis. There are different Democrats that care about issues deeply in their state, especially those up for re-election next year. Take, for instance, the pressure on many of them on medical device tax that we saw. There are areas where there are pressure points. And there are also areas -- remember, Donald Trump is a wheeler dealer. He will be calling these guys into this office, saying, what do I need to give you and, by the way, if you won't work with me, I'm going to make sure everybody knows it.

GIGOT: All right, thank you, Kim.

We have to take one more break. When we come back, "Hits and Misses" of the week.

(COMMERCIAL BREAK)

GIGOT: Time now for "Hits and Misses" of the week.

Colin, start us off.

LEVY: Paul, the Dakota Access Pipeline finally got clearance to proceed after months of being held up by protestors. The protestors said they were there protecting the pristine natural environments, but when they left and abandoned camp, they actually left behind about 250 trucks-worth full of garbage, which now has to be cleaned up before spring comes and it all melts and goes into the lake that the protesters were protesting. So, I think that counts as a miss.

(LAUGHTER)

GIGOT: It sure does.

All right,Bill?

MCGURN: Remember how, in December, people said the Russian military intervention in Aleppo at least stopped all the killing, however ugly it was.

GIGOT: In Syria, yeah.

MCGURN: In Syria. Well, a new report from Amnesty International points out that President Assad, in one prison, has been hanging people in extradition to hearings. Every week, they take people out and hang them.  They are probably still doing it. These are civilians who oppose the government and so forth. I think it's a reminder that the warfare that we see on our TV screens, that may have stopped, but the killing machine in Damascus continues apace.

GIGOT: All right.

Joe?

RAGO: Paul, a hit this week to Governor Scott Walker, who proposed 5 percent tuition cut at the University of Wisconsin. This is the first cut in tuition in state history. It's going to make up the loss to the school with a budget surplus. Now, you would think this would be pretty popular as everybody claims to worry about student debt.

GIGOT: You would think.

RAGO: But if you go to Madison or other college towns, this is very controversial because it turns out the administrators want the state money and the kids' money, too.

(LAUGHTER)

GIGOT: True.

RAGO: So a hit to Scott Walker for exposing academic priorities.

GIGOT: All right.

Dan?

HENNINGERPaul, as you know, there's a competition going on in progressive circles on who is most upset by Donald Trump. I believe we have a winner.

(LAUGHTER)

That would be the principal of the progressive Calhoun School in Manhattan, who sent out an e-mail to the parents of the children last week, in which he said, "The Trump presidency was more troubling than Vietnam, the assassination of Martin Luther King, Watergate, and not least, September 11th. Ladies and gentlemen, it's time to load up the spaceships.

(LAUGHTER)

GIGOT: OK, all right.

And remember, if you have your own hit or miss, be sure to tweet it to us, @JERonFNC.

That's it for this week show. Thanks to my panel. Thanks to all of you for watching. I'm Paul Gigot. Hope to see you right here next week.

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