Conservatives Close In on 3-Decade Dream: Tipping Court to Right
Posted July 9, 2018 9:37 p.m. EDT
WASHINGTON — President Donald Trump’s nomination of Judge Brett M. Kavanaugh to the Supreme Court on Monday culminates a three-decade project unparalleled in American history to install a reliable conservative majority on the nation’s highest tribunal, one that could shape the direction of the law for years to come.
All of the years of vetting and grooming and lobbying and list-making by conservative legal figures frustrated by Republican appointees who drifted to the left arguably has come down to this moment, when they stand on the precipice of appointing a fifth justice who, they hope, will finally establish a bench committed to their principles.
“They’ve been pushing back for 30 years, and, obviously, the announcement tonight is a big step in the right direction,” said Curt Levey, president of the Committee for Justice, a conservative activist group, who has been working toward this goal full time since 2005. “It’ll be the first time we can really say we have a conservative court, really the first time since the 1930s.”
This presumes that Trump can push Kavanaugh’s nomination through a closely divided Senate heading into a midterm election season, hardly a given. More so than any nomination in a dozen years, Trump’s choice of a successor for Justice Anthony M. Kennedy, the influential swing vote retiring at the end of the month, holds the potential of changing the balance of power rather than simply replacing a like-minded justice with a younger version.
That has raised the stakes for groups on the left and the right, almost certainly guaranteeing an incendiary, ideological, partisan and well-financed confirmation battle in a capital already riven by incendiary, ideological, partisan and well-financed politics. Long before Trump was to announce his decision on Monday night, activists on both sides had readied their artillery for combat.
But if the president succeeds in confirming Kavanaugh, who sits on the U.S. Circuit Court of Appeals for the District of Columbia, the new justice is expected to join Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch in forming a much more consistently conservative majority than before.
That has not happened by accident. A network of activists and organizations has worked assiduously since the 1980s to reach this point, determined to avoid the disappointment they felt after Republican appointees like Earl Warren, William J. Brennan Jr., David H. Souter, Sandra Day O’Connor and Kennedy proved more moderate or liberal once they joined the court.
Groups like the Federalist Society, the Heritage Foundation, the Judicial Crisis Network, the Judicial Action Group and Levey’s Committee for Justice have for years sought to develop a new generation of younger legal conservatives who would go into government and fill out lower levels of the judiciary. The idea was to vet potential candidates for the high court so that when vacancies arose, Republican presidents could pick from rosters of would-be nominees whose records were known.
“You’re simply not going to get Souters anymore because no one will come up who nobody’s interacted with,” said Steve Teles, a professor at Johns Hopkins University who has written about the conservative legal movement.
Indeed, the last time a Republican president even contemplated candidates who did not come from that known universe of conservative talent, he paid a price. President George W. Bush’s nomination of Harriet E. Miers, his White House counsel, collapsed in 2005 amid a full-fledged revolt by conservative judicial activists who did not consider her one of their own.
Trump, whatever his other deviations from conservative orthodoxy, seemed to take a lesson from that. He has made it a central mission to restock lower-level courts with judges popular among legal conservatives, and for his two Supreme Court nominations he has stuck close to the options they have presented to him. For Trump, it is an implicit bargain, a way of keeping his political base in his corner despite misgivings that many conservatives harbor over his other policies or various scandals.
The idea that he would pick from a list developed by conservatives has inflamed some Democrats, including Sen. Bob Casey of Pennsylvania, who declared that he would vote against Trump’s nominee even before the choice was announced Monday night.
“Any judge on this list is fruit of a corrupt process straight from the D.C. swamp,” Casey said in a statement.
The political left, of course, has its own advocacy organizations and lists of favored candidates when Democratic presidents have Supreme Court vacancies to fill. For the most part, in fact, the four-member bloc of Democratic appointees on the court — Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — have been more in lockstep than the Republican appointees.
But they lost their chance to solidify a liberal majority on the court when Senate Republicans refused to consider President Barack Obama’s nomination of Merrick B. Garland after the death of Justice Antonin Scalia, the court’s conservative stalwart, in 2016. That seat ultimately went to Gorsuch, keeping it in the court’s right-leaning faction.
If Trump’s nominee follows Gorsuch’s example so far, it may leave Roberts as the major swing vote. He has surprised, and disappointed, conservatives on occasion, most notably when he voted to uphold the constitutionality of Obama’s health care program. But Roberts has still been much more reliably conservative than Kennedy. Still, some longtime legal scholars said it would be a mistake to assume that Kavanaugh’s appointment will change the court fundamentally for the foreseeable future. If a Democrat were to win the White House in 2020, a conservative vacancy could still swing the court back.
“People say this will cement a conservative court for a generation,” said Michael W. McConnell, a former appeals court judge who was considered for the Supreme Court by Bush. “I don’t think that’s true. The court goes back and forth and, personally, I think it’s rather a good thing that the court have solid representations from both perspectives. This is a divided country.”
McConnell said too much attention has been paid to the possible effect of Trump’s nomination to issues like abortion and same-sex marriage. “Given that we have no idea what the issues are going to be over the lifetime of the next justice, I think it’s really silly and misleading to just put this up as if it’s yet another referendum on Roe v. Wade or Obergefell,” he said. “It’s not going to be about that. It’s going to be about other things.
“What we should all be hoping for is not someone who is right wing or left wing,” he added, “but someone who has clear understanding of the boundary between law and policy.”