A CONSERVATIVE COURT DECADES IN MAKING FOR DECADES TO COME
“The judge’s job is to interpret the law, not to make the law or make policy. So read the words of the statute as written. Read the text of the Constitution as written, mindful of history and tradition. Don’t make up new constitutional rights that are not in the text of the Constitution. Don’t shy away from enforcing constitutional rights that are in the text of the Constitution.”
–Judge Brett Kavanaugh, June 2, 2016
President Trump’s selection of Judge Brett M. Kavanaugh for the Supreme Court last night (7/09) 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 at last establish a bench firmly 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, the 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 Mr. Trump can push Judge 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, Mr. 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, guaranteeing an incendiary, ideological, partisan and well-financed confirmation battle in a capital already riven by incendiary, ideological, partisan and well-financed politics. Activists on both sides wasted no time on Monday night issuing their predictable full-throated endorsements or scathing condemnations within minutes of Mr. Trump’s televised announcement.
But if the president succeeds in confirming his selection, Judge Kavanaugh, who sits on the United States Circuit Court of Appeals for the District of Columbia, 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.
The court has swung from left to right and back again throughout its history, of course, and other presidents tried to muscle their way to friendly majorities, most infamously President Franklin D. Roosevelt’s failed court-packing scheme in 1937. Never before, however, has an entire political apparatus arisen to systematically engineer a more dependable Supreme Court over the course of a generation.
Since the 1980s, a network of activists and organizations has worked assiduously 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 Justice Kennedy proved more moderate or liberal once they joined the court.
One of the leading figures behind the effort was Ed Meese, who served as attorney general to President Ronald Reagan, two of whose appointees, Justices O’Connor and Kennedy, proved less conservative than supporters originally hoped.
Mr. Meese has made it a mission since then to advise subsequent Republican presidents on judicial nominations. In a nod to his central role, Mr. Meese was present in the East Room of the White House for Monday night’s announcement, and Mr. Trump singled him out during his speech.
Inspired by Mr. Meese, groups like the Federalist Society, the Heritage Foundation, the Judicial Crisis Network, the Judicial Action Group and Mr. 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.
“You have to have that army before you can credential them, and that army just didn’t exist before Reagan,” Mr. Levey said.
The idea was to vet and cull potential candidates for the Supreme Court long before vacancies even arose, so that Republican presidents could pick from rosters of would-be nominees whose records were known. No one wanted any more surprises.
“You’re simply not going to get Souters anymore because no one will come up who nobody’s interacted with,” said Steven Teles, a professor at Johns Hopkins University and the author of “The Rise of the Conservative Legal Movement: The Battle for Control of the Law.”
Indeed, the last time a Republican president even contemplated candidates from outside that known universe of conservative talent, he paid a price. President George W. Bush’s nomination of Harriet E. Miers, his White House counsel and longtime adviser, collapsed in 2005 amid a full-fledged revolt by conservative activists who did not consider her one of their own.
Among those who argued against her nomination from within the White House? Judge Kavanaugh, who at the time was serving as Mr. Bush’s staff secretary and participated in some of the private sessions preparing Ms. Miers for confirmation hearings, sessions that did not go well.
Mr. Kavanaugh instead favored the selection of Justice Alito, then an appeals judge and a known and trusted figure within the conservative legal community. Justice Alito eventually got the nod after Ms. Miers withdrew.
Mr. Trump, whatever his other deviations from conservative orthodoxy, seemed to take a lesson from that. He has made it a top priority to restock lower-level courts with judges popular among legal conservatives, and for his two Supreme Court nominations stuck close to the options they presented to him.
The idea that Mr. Trump would pick from a list developed by conservatives has inflamed some Democrats, including Senator Bob Casey of Pennsylvania, who declared that he would vote against Mr. 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,” Mr. Casey said in a statement.
The political left, naturally, 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 — has voted more in lock step than the Republican appointees.
But liberals lost their chance to solidify a left-leaning majority on the court when Senate Republicans refused to consider President Barack Obama’s nomination of Judge Merrick B. Garland in 2016 after the death of Justice Antonin Scalia, the court’s conservative stalwart. That seat ultimately went to Justice Gorsuch, keeping it in the court’s right-leaning faction.
If Judge Kavanaugh follows Mr. Gorsuch’s example so far, Chief Justice Roberts may become the major swing vote. He has surprised, and disappointed, conservatives on occasion, most notably when he voted to uphold the constitutionality of Mr. Obama’s health care program. But Chief Justice Roberts has still been much more reliably conservative than Justice Kennedy.
Still, some longtime legal scholars said it would be a mistake to assume that Judge Kavanaugh’s appointment would change the court fundamentally for decades to come.
“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 Mr. 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.”
True, but for the foreseeable future, the court will have a solid conservative majority – even more so should Justice Ginsburg retire during the Trump Presidency. Conservatives are celebrating today with good reason.
Peter Baker is the Chief White House Correspondent for the New York Times.