10 July 2018 (Hydra, Saronic Islands, Greece) — Jack Ekki works for the Federalist Society, the conservative think tank responsible for one-third of the members of the U.S. Supreme Court, Neil Gorsuch being its last achievement. President Trump announced last night he has nominated yet another Supreme Court candidate coming down the Federalist Society pipeline — Brett Kavanaugh to replace Justice Anthony Kennedy. For an overview this organization’s influence and power I refer you to an article last year in the New Yorker magazine (click here).
Ah, Jack. I have known him for a long time — and we agree about almost nothing. In fact, sometimes I do not even like him. But I follow the advice of Ian Bremmer: “if you do not know, or do not follow some people you dislike, you’re doing it wrong”.
Jack and I are headed to the Mykonos, Greece “unconference”, held every 2-3 years. As I have noted before, the term “unconference” has been applied (or self-applied) to a wide range of gatherings that try to avoid one or more aspects of a conventional conference (such as high fees, sponsored presentations, and top-down organization). It is participant driven. Anyone who wants to initiate a discussion on a topic can claim a time and a space. Our event is pretty open discussion rather than having a single speaker at the front of the room giving a talk. Everybody chips in for costs, and there are multiple venues. The Mykonos event draws an eclectic crowd, here for the summer or for part of it. It draws attorneys, CEOs, managers, tech developers, media executives … plus a few politicos … from a very wide range of companies and institutions (most of them connected to TMT industries). It is a group of all-around bright thinkers who eschew the moniker “thought leader”. Refreshing. Jack and I are going to initiate a chat about the rise of the populist establishment across the U.S. and Europe.
Jack and I are taking a slow trek across the islands and we have had some time to chat about this latest Supreme Court nomination and we DID agree on one thing: the dynamic behind last night’s “prime-time selection reality” show. Trump has demonstrated that he’ll take his “Trumpishness” only so far. Yes, it’s one thing to blow up the G-7 with trade wars and make nice with a murderous North Korean despot. But disappoint the D.C. conservative legal establishment? Uh, no.
Jack’s position is that so many reluctant Republicans voted for Trump because of the Court. They got Justice Neil Gorsuch, and now they have Kavanaugh, validating and institutionalizing their ideology for 30 years to come. Trump delivered what he promised, as he promised, on the one thing the Republicans care most about. He has cemented his credibility and power with the base — giving him nearly infinite license, especially with evangelicals. Jack thinks this will rally the base further for the midterm elections. And Jack DOES NOT think the Democrats will regain the Senate, and that the Repubs will skid through control of the House albeit with smaller numbers.
New York Times columnist Ross Douthat (in a piece overnight) came out a little different than Jack. He says the Republican leadership is not so confident about the mid-term elections … remember that a shift of fewer than 80,000 votes in three states (Michigan, Pennsylvania and Wisconsin) would have made Hillary Clinton president … so the key for the Repubs is to nail down a conservative Supreme Court for a generation.
The Good, the Bad, the Ugly
Some quick notes after a scan of the news feeds:
- Brett Kavanaugh would have the second most conservative score (0.693) on the bench if confirmed, next to Justice Clarence Thomas (0.725), per a measure that scores judges on a liberal-conservative spectrum.
- Why the above point matters: Justice Anthony Kennedy often sided with the liberal wing of the court, so with this choice, Trump is cementing a solid conservative majority.
- The biggest criticisms of Kavanaugh in the early coverage, made by numerous pundits and columnists:
- Kavanaugh served under Kenneth W. Starr, the independent counsel who investigated President Bill Clinton. After the Clinton investigation and impeachment proceedings concluded, Judge Kavanaugh came to have doubts about the wisdom of criminal investigations of presidents while they are in office. Most frequent quote from a 1998 law review article: “Whether the Constitution allows indictment of a sitting president is debatable”
- Most cynical comment based on the above: “Clearly Trump is judge-shopping”
- Most interesting quote unearthed in memo he wrote when working on the Starr investigation: “I am strongly opposed to giving the President any “break” … unless before his questioning on Monday, he either i) resigns or ii) confesses perjury and issues a public apology. The President has disgraced his Office, the legal system, and the American people. He has committed perjury … and has tried to disgrace [Ken Starr] and this Office with a sustained propaganda campaign that would make Nixon blush”. I would love to hear his thoughts on Trump 🙂
- The ones to watch: vulnerable red state Senate Democrats, including Claire McCaskill, Joe Manchin, Jon Tester, Joe Donnelly, Bill Nelson and Heidi Heitkamp; as well as moderate Republicans Susan Collins, Lisa Murkowski, will be the deciding votes on whether Kavanaugh gets confirmed.
- Senate Majority Leader Mitch McConnell has expressed concern that Kavanaugh’s long track record will produce too many documents for the Senate to pore over, elongating the confirmation process and making it hard to get Kavanaugh on the court quickly. Democrats see an opportunity to stretch it beyond the mid-terms.
CONCLUSION
As far as the conservative shift of the Court, I expect more of a gradual climb than a jack-rabbit acceleration, without the kind of alarms that are set off by disposing of the few landmark precedents that are familiar to the general public. As Robert Barnes noted in his Washington Post column this morning:
Despite the loud clamor of the left and the right about Roe v. Wade, for instance, the ruling need not be overturned for the Supreme Court to uphold a state law that would virtually eliminate the abortion clinics within its borders.
The justices do not need to junk their landmark decision finding a constitutional right for same-sex couples to marry to exempt individuals and businesses that, because of religious objections, do not want to serve such couples.
And using race as one factor in determining higher education admissions, upheld by the court in a 2003 decision, is already facing a soft expiration date: Justice Sandra Day O’Connor at the time said that it probably wouldn’t be needed in 25 years.
That incremental approach has been the hallmark of the man who probably now becomes the median justice between four justices on the left and four more-conservative colleagues on the right: Chief Justice John Roberts.
As I have said before: this Court is composed of nothing more than politicians in robes, whose decisions are shaped by election returns rather than law. It will allow the Trump administration to fulfill its policy goals. It’s the partisan nature of the confirmation process. There is nothing anybody can do about it. The court in the recently completed term deviated from its deference to previously decided precedents — “stare decisis,” it is called, Latin for “stand by things decided” — and overturned two lesser-known decisions. Surely there is more to come.