Despite President Donald Trump’s high disapproval rating, it’s almost a certain that his U.S. Supreme Court nominee, Judge Brett Kavanaugh, will be confirmed to the high court. And it’s no surprise—former President Ronald Reagan took steps to make the court a major issue for Republican voters, something that lead to the rise of the conservative Federalist Society, which has spent years sourcing and grooming potential justices. In all practical senses, the 40th president laid the groundwork for blocking Merrick Garland, and getting Brett Kavanaugh to the Supreme Court.
In the latest episode of Slate’s Political Gabfest, Emily Bazelon, John Dickerson, and David Plotz discuss Kavanaugh ahead of his Sept. 4 nomination, Reagan’s lasting influence over the Supreme Court, and why so few justices have drifted ideologically from the president that nominated them.
David Plotz: Brett Kavanaugh’s Supreme Court confirmation hearings are supposed to start in early September. Senate Republicans seek to keep them on a NASCAR-type schedule—fast start, fast finish, with a vote. There are interesting developments on three fronts. First, a memo has emerged from the [Ken] Starr investigation, in which Kavanaugh, then a young prosecutor on Starr’s team, argued for asking President Clinton extremely sexually explicit questions about Monica Lewinsky.
Second, there’s a fight over what Kavanaugh-related documents are being released. A teeny fraction of the millions and millions of documents he dealt with in his long government service, particularly when he was in the White House as the staff secretary to President [George W.] Bush, have been released.
Third, Democrats are trying to figure out: Should they try to stop [his confirmation] at a time when the president is in such legal distress? I think politically, Democrats aren’t even sure where they want to go, or what the best outcome would be for them at the moment.
Emily Bazelon: One thing that interested me about Kavanaugh’s memo about the incredibly graphic Lewinsky questions he wanted to ask Bill Clinton was the introduction to it. In a very strong, vehement, forthright way, he just expressed his disgust that Clinton was lying, and the importance of taking him to task for it, and asking him these questions in a way that would have been pretty humiliating for a sitting president. You just feel, in those paragraphs, in the memo, this is what Brett Kavanaugh really thinks, and it’s going to be amazing to watch him, as a Supreme Court justice, wrestle with what position to take if he is sitting in judgment in some way about Trump’s lying.
Years ago after he was no longer working on the Clinton investigation, Kavanaugh wrote a law review article in which he expressed, very carefully, doubts about investigations of the presidency, and I’m sure it’s a crucial part of why Trump was willing to nominate him.
John Dickerson: With Elena Kagan, Mitch McConnell, and others said, “We shouldn’t put her on the court because she can’t switch from the kind of political hat to the judge hat, that she’s just too political.”
Bazelon: Because she had been a solicitor general.
Dickerson: Right, and now Kavanaugh has had political offices.
Bazelon: Much more time in government. Yes.
Dickerson: Much more. With all of that political upbringing, and in fact, maybe some of what you see in this memo is, he’s got a political instinct. He is moved around by the political winds. He’s not just a jurist off in some ivory tower, thinking dispassionately about the law. Therefore, as the crucial vote on the court for the conservative majority, he’s going to do the more political thing.
Kennedy was the fifth vote in the 5–4. There are going to be these 4–4 splits, and they will be the fifth vote. This isn’t just some justice. This is a justice coming in this kind of linchpin fashion. How do you argue that there is a special standard for the linchpin judge, and is the political connection of a judge, does that allow somebody to make a case? They are more likely to make decisions that are going to have a political impact than your regular old, garden variety justice.
Bazelon: It’s true. The idea of judges who have experience in politics—I’m all for that. I think it’s good for Supreme Court justices to have experiences of different branches of government. [Justice] Sandra Day O’Connor was in the state legislature in Arizona. [Justice] Earl Warren was the governor of California. Bring it on. Part of the problem with the Supreme Court right now is that we have this cookie-cutter resume standard, which is really narrow and boring, and I don’t think services the court well.
That said, your point about linchpin justices is really interesting. When I was working on this [recent New York Times] essay about what happens when the court moves seriously out of step with the country, I looked at the moment in history where that’s happened, and then tried to project forward about what could happen next.
One thing I learned that I hadn’t appreciated is that since 1953, there have been at least one and sometimes multiple justices who either were swing justices—the linchpin figures you’re talking about, people who could vote either way and were unpredictable ideologically. There are five of those people, and there are five ideological drifters—people who were appointed by one party, almost always they were appointed by Republicans, and they just became liberal. One example of that is [Justice] David Souter, probably the best-known.
Of the ideological drifter pool, interestingly there’s only one was appointed by a Democrat—Byron White, who was appointed by President Kennedy. The point is that I think our whole conception of the court as a nonpartisan institution that does something called “law,” which is something called “politics,” has been shaped by these justices—these unpredictable figures who did not behave in lockstep partisan fashion.
They reflected a different era of choosing nominees. Until the [Robert] Bork nomination in 1987, we don’t have this really strong ideological intent going in. Now we’re losing that. The Federalist Society has existed since the ’80s to prevent the next David Souter, and has been incredibly successful, and Brett Kavanaugh comes out of the juggernaut that The Federalist Society has built. He is particularly unlikely to drift left.
There is some research by Lee Epstein—one of my favorite and a sort of indispensable researcher about the Supreme Court—she did this study with some other people, and what they looked at was if you had experience as an official in the federal government, did that have an effect on how likely you were to move away from the party that nominated you in your rulings? The answer was you were less likely to drift.
That’s yet another reason why the Federalist Society I think is very, very confident that it has picked someone who is going to deliver solid, right-wing votes, and an intellectual prowess on the court. Kavanaugh knows how to do this stuff well, and he’s going to be able to bring that intellectual pressure to bear in a way that will be very helpful to the conservative wing, I think.
Dickerson: The drifters would be Stevens, Blackman, Souter, Powell, and Kennedy?
Bazelon: The drifters are [Justices] William Brennan, Harry Blackman, David Souter, Earl Warren, and John Paul Stevens. The people I counted as swing voters were Byron White, Louis Powell, Potter Stewart, and Sandra Day O’Connor, as well as Justice [Anthony] Kennedy himself.
Dickerson: That’s interesting, because somebody like Powell, who may not have drifted 80 percent of the time, of the 20 percent of the time he voted with the liberals, it was huge—prayer in school, abortion.
Bazelon: What’s amazing about this list of people when you think about it—I was separating the drifters from the swing voters, and yet the swing voters like Powell, in some instances like Kennedy, certainly like O’Connor, did things that were very consequential for keeping the court on a kind of moderate liberal path, right? That’s why I feel like they’ve had outsize influence both on the law and also on the public’s perception of the court as this nonpartisan, above-politics institution. Yet, nine of 10 of them did things that the Republican president who appointed them would have been upset by. Absolutely, they were not picks in the mold of Alito, of Thomas, of John Roberts, of Kavanaugh, of every conservative who is currently on the court, or about to be on the court.
Dickerson: We’ve had presidents who tried to do their personal-political things with the court before, but it was different from what you’re describing The Federalist Society of doing. Using judicial picks to basically keep voters excited and using it as a kind of promise kept to them: “We can’t get rid of abortion through legislative means, elect Republicans, and we’ll do it through the courts.” That feels like it takes on a real acceleration under Reagan, which then takes us all the way to the delay of Merrick Garland, which is essentially, elect a Republican because you’ll put somebody on the court.
The furtherance of a systemic mixing of politics and the judiciary, that kind of begins under Reagan.
Bazelon: Oh, absolutely, and you’re totally right that it begins under Reagan. One of the most important facts to remember about Roe v. Wade is that in 1973, it was 7–2. Of those seven, five of the justices had been appointed by Republicans, including two by President Nixon. We are talking about what looked like a bipartisan consensus turning into the biggest wedge issue for the right by the Reagan era and propelling presidential politics in this specific and incredibly useful way. Now of course the question is going to be, if and when the court either kind of guts Roe, or overturns it, will the Republican Party be the dog that caught the mail truck, because then the utility of the court as a single voting issue for the right may just really change. Because the left is energized, or because people don’t actually really want abortion to be illegal, and all the things that will flow from that.
One fascinating data point in all of this is that Roe v. Wade is currently polling with more support than it ever has. It’s at 71 percent—71 percent of respondents say they do not want Roe v. Wade overturned.
Plotz: There is, I think, ambivalence in the Democratic caucus about what should happen with Kavanaugh. One school of thought says you have to oppose him. He’s bad on ideological grounds. President Trump is illegitimate, doesn’t legitimately deserve this. Mitch McConnell deserves to be punished for an appointment, so anything we can do to delay or stop this nomination, we should do, even if it pushes it past the election. We should do that.
Another school of thought says no—we’re going to lose this battle. There’s going to be a conservative justice on the court. Kavanaugh isn’t great. Whoever they got instead of him wouldn’t be great. We’re not going to have the capacity to stop this anyway, and if the Supreme Court nomination is a live issue going into the election, if there isn’t a new justice on the court, then that’s going to be galvanizing for Republican voters, who are going to remember that’s the reason why they support Republicans anyways, to keep this court sympathetic to us.
Do you think there is a view the Democrats should have about which is more advantageous to them?
Bazelon: I have two thoughts about your question, David. One is that I think that the hearings, even though they are incredibly frustrating, and frankly horrible because the whole game is the nominee doesn’t answer the questions in a substantive way, despite all of that, the moment of the Supreme Court nomination is a really important one for both parties to get their people to think about why the law matters, why the judiciary matters, to get them to care about the court. Because the left has traditionally cared less and less about the court, I don’t think the Democrats, just speaking politically, should let this sail through, and not make a big deal about what a shift this is going to be on the court, because it’s really going to be a big shift.
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