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.”
Sen. Josh Hawley (R-MO), who is the leading Senate Judiciary Committee skeptic of Rao, put it this way today at The Federalist:
The people of Missouri sent me here to ask tough questions, challenge conventional wisdom, and fight for what our state believes. We’ve been burned too often. For every Justice Clarence Thomas, there has been a Justice David Souter or Harry Blackmun. And every time, D.C. insiders have said, “Trust us.”
Missouri is called the Show-Me State because we Missourians are famous for wanting the facts. When the D.C. insiders say “trust us,” my response is always going to be: “Show me.” Show me how this nominee will uphold the Constitution. That’s my job, and that’s what I will do.
Hawley is absolutely correct that conservatives have “been burned too often” — if anything, he neglected to also include John Paul Stevens and Anthony Kennedy on the black list of epic Republican misses in high court nominations. Hawley is also correct to emphasize “show me” instead of “trust me” as a guiding principle for high-profile judicial nominations. The lack of a corroborative paper trail has consistently undermined Republican judicial nominations for decades.
But “show me” is actually only a start. Here are three more concrete traits that conservatives must look for in future high-profile judicial nominations — including but hardly limited to any U.S. Supreme Court vacancies that may still arise over the remaining course of the Trump presidency.
1. Full-Spectrum Conservatism.
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 agree that Chevron and Auer were both incorrect and ought to be overturned; indeed, perhaps Trump’s recent national emergency declaration at the border might spur bipartisan momentum to help Make the Nondelegation Doctrine Great Again. But social conservatives simply must be heard, as well. As Harvard Law School Professor and social conservative Adrian Vermeule tweeted this week, “The world is full of smart conservative lawyers. Find someone who satisfies both libertarians and social conservatives. Not that hard.”
Vermeuele is right. 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. And yes, these civilizational issues matter even for the aforementioned, administrative law-heavy D.C. Circuit.
2. Stiff Resistance To The “Greenhouse Effect.”
The so-called “Greenhouse Effect,” named after Pulitzer Prize-winning Supreme Court reporter Linda Greenhouse, suggests that federal judges — and especially Supreme Court Justices — tend to move to the Left over the course of their life tenures due to a desire to receive more favorable press coverage. The sordid history of the past half-century of Republican judicial nominations bears this prophecy out. As I wrote last week:
Democrats, who nominate jurists based on the grotesque ruse of “living constitutionalism” and barely feign that their “jurisprudence” is inherently anything other than outcome-determinative, never miss with their Supreme Court nominees. In baseball terminology, their batting average is approximately 1.000. Republicans, at best, seem to bat .400.
Conservatives simply must look for evidence — no matter where they can find it — of a truly intractable spine that would be needed to withstand pressure from the D.C. Swamp cauldron. There are any number of possible places to look for such evidence: Writings, public statements, the intensity of a nominee’s personal moral or religious convictions, and even the so-called “spouse test” — indeed, I would posit that it is no accident that Clarence Thomas, who has been able to stay remarkably solid and devoutly constitutionalist for nearly three decades now, has a spouse with the core convictions and fortitude of a lioness. Geography may also be viewed as one proxy: There is something to be said for a possible nominee, like Judge Bill Pryor of the U.S. Court of Appeals for the Eleventh Circuit or Judge Amy Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit, who neither went to an Ivy League law school nor has spent much of his/her professional career inside the Beltway.
3. Eagerness To Aggressively Correct Course.
In general, conservatives must look for nominees who take a narrow view of Supreme Court precedent — the fallacious doctrine of stare decisis, in constitutional interpretation, ought to constrict as little as possible constitutionalist/originalist lower court judges. Indeed, this is one of Hawley’s points that he has emphasized all week, in the context of the Rao nomination: We need lower court nominees who will very narrowly interpret and refuse to extend any inch further anti-constitutional Supreme Court precedents such as Roe v. Wade. (I truthfully hold heterodox views on this subject and do not believe the Constitution demands that lower courts view themselves as “bound” at all by Supreme Court precedent, but that is a column for another day.)
At the Supreme Court level, this eagerness ought to manifest itself in many different ways. We need Justices who are not just willing, but eager, to grant writs of certiorari to rapidly correct course on such constitutional provisions as the Second Amendment, the Eighth Amendment’s Cruel and Unusual Punishments Clause, and the First Amendment’s Establishment Clause — each of which has been relentlessly bastardized by the nine robed oracles for decades. We need Justices who will readily and enthusiastically butt in to halt the madness of runaway lower courts and judicial #Resistance lawlessness. We need Justices who will be willing and eager to overturn not just recent precedent, but — a la Clarence Thomas — will also be willing to overturn much older precedent. The judicial system has gone off the rails for so long that nothing short of an assertive and defiant course correction will be particularly helpful in remedying the pernicious status quo.