Justice Brett Kavanaugh, who as a possible Supreme Court nominee was hardly the first choice — or anywhere near the first choice — of traditionalist conservatives, is off to a rather lethargic start. Chief Justice Roberts, via his trepidation and cowardice, is rapidly solidifying his status as the Court’s new Anthony Kennedy-esque, mercurial swing vote. Neomi Rao, President Trump’s nominee to replace Kavanaugh on the prestigious U.S. Court of Appeals for the D.C. Circuit, faces some stiff social conservative headwinds in advance of her U.S. Senate Judiciary Committee confirmation vote tomorrow.
The “legal conservative movement” finds itself under assault from multiple quarters. Kavanaugh, the lifelong D.C. Swamp creature with deep roots in the institutionalist Republican Party, may be fairly said to represent the infiltration of jurisprudential squishiness. The emerging divide on Rao, with social conservatives more skeptical but the monolithic anti-administrative state cabal more enthusiastic, shows the ever-ascendant power of legal libertarians. Indeed, as Daniel Horowitz writes at Conservative Review — and I, as a former three-year Federalist Society law school board member with solid roots in the organization, can help attest — “There’s no mystery here. The conservative legal movement is no longer conservative; it is libertarian.”
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