The decade's most triggering comedy
Josh Hawley, the baby-faced 39-year-old freshman senator from Missouri, has already emerged as perhaps the single most interesting member of the Republican caucus. At minimum, Hawley — whose legal background includes Yale Law School, a U.S. Supreme Court clerkship, and stints as a constitutional law professor and attorney general of Missouri — has solidified his stature as the most intriguing conservative to burst onto the Senate scene since fellow firebrand Ted Cruz’s infamous no-holds-barred bellicosity upended the staid chamber in 2013.
Specifically, Hawley has emerged as the only Republican member of the prestigious Senate Judiciary Committee who is deeply committed to vetting the White House counsel’s office proffered judicial nominees — and not merely blankly accepting the White House’s word on the alleged propriety of those nominees.
In late February, I covered at length Hawley’s insistence on deeply probing, against the wishes of the Judicial Crisis Network (JCN), the social conservative and jurisprudential bona fides of Neomi Rao, Justice Brett Kavanaugh’s named successor to the U.S. Court of Appeals for the D.C. Circuit. Rao, an administrative law scholar who was a top choice of the libertarian-leaning anti-administrative state cartel, faced headwinds from social conservatives due to both her tendentiously referencing the pro-life movement as the “anti-abortion movement” in some of her scholarly writings and her alleged possible sympathy to the faux, atextual, judicial power-grabbing constitutional doctrine of “substantive due process.” At the time, I vigorously defended Hawley against the JCN assault by arguing that conservative U.S. senators have a loyalty to the Constitution over the Trump White House, that Hawley’s legal background and indubitable legal acumen ought to carry real weight in a dust-up such as this, and that there was genuine reason to try to clarify Rao’s views.
In my view, furthermore, the Rao nomination kerfuffle highlighted the extent to which monolithic anti-administrative state libertarianism has been intellectually ascendant within the ranks of the Federalist Society and the rest of the phony “conservative legal movement”:
Over the past five to ten years, libertarianism has been ascendant and social conservatism has been descendant within the ranks of the Federalist Society cognoscenti. The Society was founded in the early 1980s largely by social conservatives, and today many of its top internal executives and external advisers alike remain devout Catholics. But legal libertarianism has been ascendant within the Society for years now. Whereas an Antonin Scalia/Robert Bork-esque commitment to “judicial restraint” was once preached as Gospel truth on the legal Right, today libertarian groups like the Cato Institute and the Institute for Justice preach “judicial engagement” to malleable law students. Whereas the Antonin Scalia/Clarence Thomas-esque view of the faux, atextual nature of the Fifth/Fourteenth Amendment “substantive due process” doctrine was once ubiquitous on the Right, today some top Federalist Society speakers wax poetic about the alleged glory of such a perverse doctrinal fabrication. The aforementioned “anti-administrative state cabal,” furthermore, is real: Many D.C.-centric legal eagles on the Right seem unduly obsessed with gutting the administrative state, and concomitantly talk relentlessly about overturning Executive Branch bureaucracy-empowering Supreme Court cases such as Chevron U.S.A. v. National Resources Defense Council and Auer v. Robbins. …
I too want libertarians to be happy about gutting the administrative state and restoring the nondelegation doctrine so as to limit Executive Branch abuse. But it is also not too much to ask that social conservatives be comforted when it comes to our core issues: Life, religious liberty, sexuality, sovereignty, the plenary power doctrine in immigration, and so forth.
Last week, as The Daily Wire reported, a similar situation seemed to transpire during a Senate Judiciary Committee judicial nomination hearing. Michael Bogren, a Trump administration nominee to the U.S. District Court for the Western District of Michigan, once served as counsel for the city of East Lansing, Michigan when that city’s broad-reaching non-discrimination ordinance came into conflict with the Catholic faith of East Lansing residents Steve and Bridget Tennes. As Ramesh Ponnuru summarizes at National Review today, the city “barred [the] Catholic family from participating in a farmer’s market because that family rents its farm for marriage ceremonies but is not willing to host same-sex weddings.” In defending the city of East Lansing against the protestations of the devout Catholic couple, who merely wanted access to the local farmer’s market, Bogren denigrated the sincerity and intellectual honesty of the couple’s religious convictions and frequently compared the couple’s refusal to host same-sex weddings on their farm with the overt ‘White Applicants Only’ racism of the Ku Klux Klan.
Hawley, himself an intricately trained lawyer of the highest acumen, was having none of it during Bogren’s confirmation hearing.
Hawley’s intense questioning of Bogren elicited criticism from some predictable sources: Namely, top White House ally Ed Whelan of the Ethics and Public Policy Center and the self-anointed GOP establishment praetorian guard at The Wall Street Journal editorial page. Whelan and the Journal regurgitated similar talking points: The “blue-slip” policy remaining in place for district court nominees means that home-state senators have to compromise on some judicial nominations, the fact that all Americans have a right to legal defense means that it is inappropriate to impute to a lawyer the views of his/her client, and the “precedent” that Hawley is setting for Bogren will ultimately redound against conservatives’ interest by means of galvanizing future leftist senatorial opposition to conservative judicial nominees who have previously defended religious liberty or pro-life causes throughout their legal careers.
This morning, Hawley ably defended himself at National Review, arguing that, while “[l]awyers have a duty to their clients … a lawyer can give his clients a vigorous defense without stooping to personal attacks and vicious rhetoric.” Furthermore, the former Supreme Court clerk powerfully wrote, “As attorneys, our oaths require us to do much more than advocate on our clients’ behalf. We also swear to uphold the law itself and to always conduct ourselves with integrity. And that means not launching gratuitous attacks against faith groups — especially when you represent the government.” Ponnuru also helpfully debunked today the deeply misleading notion that, merely because it would set an inappropriate precedent to hold attorneys responsible for all of their choices of client representation, it is then somehow inappropriate to also never find attorneys morally culpable for how they go about the business of their various client representations.
The key takeaway from the Hawley imbroglios is a simple one. We, as conservatives and constitutionalists committed to upholding the original public meaning of the U.S. Constitution, are not in any way obliged to merely accept on blind faith the choices of the D.C.-centric judicial nomination clerisy. Rather, we are allowed to — indeed, we should — require evidence of constitutional fidelity. We should require evidence of jurisprudential commitment to our core issues — of structural separation of powers and federalism, yes, but also substantive issues such as life and religious liberty. That is a far cry from Bogren, who has both exhibited personal hostility to people of faith and has endorsed a legal principle with potentially disastrous ramifications for people of faith:
Hostility to religious liberty should here, there, and everywhere be a deal-breaker for a prospective Republican judicial nominee. Period. Just as social conservatives should have been deeply skeptical at Rao’s referring to the pro-life movement as the “anti-abortion movement,” so should conservatives now be wary of Bogren’s unhinged legal comparisons of Catholic teaching on sexual morality with the abhorrent racism of the Ku Klux Klan. This is not how conservatives ought to write and speak.
This is not a particularly close call. And just today, many conservative leaders have demonstrated their agreement in recognizing this is not a close call by signing onto a powerful statement, organized by the Conservative Action Project, against the Bogren nomination.
One must conclude that the same folks criticizing Hawley now would have presumptively excoriated Republican defectors during the Bush-era Harriet Miers Supreme Court nomination fiasco. But they forget that a U.S. senator acting as a second set of corroborative eyes is merely emblematic of the rudimentary separation of powers tug-of-war that James Madison described in The Federalist No. 51: “Ambition must be made to counteract ambition.”
Josh Hawley has emerged as a nonpareil stud on the Senate Judiciary Committee. The only question is why some of Hawley’s similarly constitutionally inclined Committee members, such as Sens. Ted Cruz (R-TX), Mike Lee (R-UT), and Ben Sasse (R-NE), seem so comparatively silent. After all, Hawley shouldn’t have to do the dirty work of vetting all Trump judicial nominees all by himself.
Right now, Josh Hawley is an indispensable asset to conservative constitutionalism. To be sure, Hawley’s fellow Senate Judiciary Committee members ought to rise to the occasion — and they ought to do so sooner rather than later. But in the meantime, conservatives should feel empowered to defeat the Bogren nomination without any reservation.