Is the Federalist Society Nefarious?

By popular demand . . .

I’ve had a few requests lately for a post about the nefarious influence of the Federalist Society on our judicial selection process. It’s not a subject about which I have especial expertise–indeed, I don’t think I’d heard of them until maybe a decade ago and they’ve been around much longer—and to the extent that I’m knowledgeable I’ve been reasonably supportive of their agenda. Coincidentally, though, I stumbled on an interesting piece at Think Progress this morning by Ian Millhiser titled “Brett Kavanaugh hurdled his better-credentialed peers to get his nomination. This is how he did it.

His lede starts magnanimously but quickly shifts:

If you clicked on this piece because you’re looking for an argument that Judge Brett Kavanaugh is an unqualified hack, expect to be disappointed. Kavanaugh is something far more dangerous — a brilliant, hardworking, deeply ideological hack. If he’s confirmed to the Supreme Court, expect him to be extraordinarily effective in pushing a severely conservative agenda.

But neither Kavanaugh nor the last person our accidental president put on the Supreme Court under dubious circumstances, Neil Gorsuch, are the most qualified people for their current jobs — or for any of the other elite jobs they’ve held in their lifetimes.

The story of how Kavanaugh and Gorsuch managed to rise, despite the fact that they competed against dozens or even hundreds of lawyers with equally impressive credentials, is one of the most important stories in the United States today. It is a story about how small differences can inspire great loyalty. And how shadowy figures can amass great power by controlling what is essentially an affirmative action machine for conservatives.

And it is a dangerous threat to judicial independence and to the rule of law.

Let’s treat Millhiser as a hostile witness here. He’s clearly qualified to comment on the matter but clearly dislikes conservative judicial ideology. And it’s odd to argue that people with Gorsuch and Kavanaugh’s legal credentials are somehow akin to “affirmative action” recipients.

But his examination of the arcane world of the legal hierarchy is interesting:

To understand Kavanaugh and Gorsuch’s career, it’s helpful to understand the fractal inequality that drives the highest echelons of the legal profession.

There’s an old joke that the practice of law is a pie-eating contest and the prize is more pie. College students compete for slots at the top law schools. The best students at these schools compete for jobs on the law review, student-run academic journals where the highest editors often work full-time, unpaid jobs on top of their studies. Students who already made it to law review compete to become those editors. The editors compete for clerkships, and the clerks for the most prestigious judges compete to clerk for the Supreme Court.

The marginal differences between these competitors can be vanishingly small. The difference between a Harvard law graduate who gets to clerk on the Supreme Court and one who merely clerks for a court of appeals judge can hinge on the fact that the second graduate had the flu during one of their exams and only received an A- because of that illness.

But these small differences matter a great deal in terms of career outcomes. A lawyer who “only” clerks for a federal appellate judge might begin their career as a Justice Department litigator in Washington, DC. But a nearly identical lawyer who clerked on the Supreme Court is much more likely to start out in a handful of the federal government’s most prestigious jobs for young lawyers — The Office of Legal Counsel, a political aide to the attorney general, or even the White House Counsel’s office — all of which are often stepping stones to a federal judgeship.

Law firms pay signing bonuses as high as $105,000 for young lawyers exiting a lower court clerkship, but they offer bonuses up to $350,000 to outgoing Supreme Court clerks. Former court of appeals clerks may very well make partner and get to spend the bulk of their career arguing appeals for well-paying clients, but former Supreme Court clerks are overwhelmingly more likely to become Supreme Court litigators themselves — or potentially even Supreme Court justices.

Asking most lawyers to distinguish between the career opportunities available to court of appeals clerks, and the opportunities available to Supreme Court clerks, is a bit like asking whether Wonder Woman could win a fight against Superman. But for the young lawyers whose rare combination of brilliance, diligence, ambition, and luck allows them to compete credibly for a Supreme Court clerkship, their ability to claim that prize could decide whether they go on to become one of the most powerful people in the nation.

This comports with my limited understanding of matters. I’d be interested in insights from HarvardLaw92 or others who travel in those circles. Still, Millhiser hasn’t gotten to the “affirmative action” bit.

The important thing to understand about this rat race is that it is a game of very small distinctions. “Feeder judges,” the handful of ultra-prominent judges who routinely send their clerks on to clerk for a Supreme Court justice, do not typically hire clerks who are obviously better suited than anyone else who applied for the job. To the contrary, feeder judges typically receive hundreds of qualified applicants, dozens of whom could do the job with rare distinction.

Sometimes, there is a clerkship applicant with such sterling credentials that they are all-but-assured a job with a feeder judge. But the hiring process typically turns on arbitrary distinctions. The clerks each feeder judge hires each year are determined as much by personal connections and luck as they are determined because any one applicant outshines their peers.

Which bring us back to Kavanaugh and Gorsuch.

The striking thing about both men’s academic credentials is that they fit right within the zone of twilight where they are credible applicants for a feeder clerkship, but neither man was a standout applicant. Gorsuch graduated cum laude, not magna cum laude or summa cum laude, from Harvard Law School. Kavanaugh initially clerked for Judge Walter Stapleton, a federal appellate judge who was not a feeder judge, before eventually going on to clerk for feeder Judge Alex Kozinski and then for Justice Anthony Kennedy.

Indeed, the circumstances that led to Kavanaugh getting his second clerkship are revealing. Kozinski, who left the bench in disgrace due to his pervasive practice of sexually harassing his clerks, initially hired future Secretary of Health and Human Services Alex Azar as his law clerk. Yet Azar left this clerkship under mysterious circumstances after only six weeks. Brett Kavanaugh was the replacement.

Kavanaugh became Azar’s replacement, moreover, largely due to his relationship with Yale law professor George Priest. Priest, according to the New York Times, was “a longtime sponsor of Yale’s chapter of the Federalist Society.” Kavanaugh and Priest became friends while the former was a student at Yale because they used to play basketball together. When Azar left the Kozinski clerkship, Priest arranged for Kavanaugh to take over.

Without this opportunity to clerk for a feeder judge, it is very unlikely that Kavanaugh would have clerked on the Supreme Court. It is equally unlikely that Kavanaugh would have received a fellowship under then-Solicitor General Ken Starr, and had he not formed this early relationship with Starr, Kavanaugh almost certainly wouldn’t have wound up becoming one of Starr’s top aides during Starr’s investigation into President Clinton — a job opportunity that launched Kavanaugh into the highest levels of Republican politics.

Judge Kavanaugh was set on his career path, not because he outperformed all of his Yale classmates, but because he had credentials that were just good enough to land him a clerkship with Kozinski, and because he played basketball with a prominent member of the Federalist Society.

The public record of Gorsuch’s early career is less detailed, but we do know he first clerked for Judge David Sentelle, a very conservative feeder judge known for hiring equally conservative law clerks. Gorsuch was a very good student at Harvard law, but not a standout. He was absolutely qualified to clerk in Sentelle’s chambers, but the fact that a “mere” cum laude graduate of Harvard got to clerk in this prestigious chambers likely has as much to do with Gorsuch’s right-wing views as it does with his academic record.

So, now we’re getting somewhere. Both Gorsuch and Kavanaugh were extremely well-qualified. The argument that they’re not the best qualified because others had slightly better grades isn’t that interesting. Maybe they made up for it with extracurriculars. Or were better in the interviews. And even networking isn’t comparable to affirmative action; it’s just the natural course of events in even modestly elite circles. But, of course, we’ve finally come to the dreaded Federalist Society.

There are two important takeaways from this dive into the elite world of the Harvard Law Review and the Yale Law Journal. One is that the students who live in this world care deeply about very small distinctions. They will perform thousand of hours of free labor, bury themselves in their studies, structure their social lives, and go out of their way to impress certain professors — all to make it more likely they will clerk for someone like Kozinski instead of someone like Stapleton.

The second takeaway is that these ambitious lawyers-in-waiting will typically be eternally grateful to anyone who nudges them just one rung up the prestige ladder.

Which brings us back to the Federalist Society, the Svengali-like organization that Donald Trump relies on to select many of his judicial nominees.

Svengali-like? Tell me more.

The important thing to understand about the Federalist Society is that, with rare exception, they do not promote unqualified ideologues into key jobs. What they can do, however, is make it more likely that when a feeder judge (or a justice, or an attorney general, or a president) is confronted with a dozen highly qualified applicants for a powerful job, the person who ultimately gets the job is a staunch conservative.

That was my prior understanding.

Indeed, the Federalist Society operates in very much the same way that affirmative action functions after the Supreme Court’s decisions in Grutter v. Bollinger and Fisher v. University of Texas.

At top universities, there are basically three different kinds of applicants. Some applicants are so obviously qualified that they are certain to be admitted. Others are so obviously unqualified that they will never be accepted. Affirmative action has no impact whatsoever on these applicants.

Where affirmative action can make a difference is the mass of marginal applicants who are unquestionably qualified to go to the school of their choice, but who are not standouts. Affirmative action permits a school to say “we have ten qualified applicants and only three slots remaining, so lets give one of those slots to someone who will diversify our student body.”

And so it is as well for job applicants in the Federalist Society’s network. Brett Kavanaugh was perfectly qualified to clerk for a feeder judge, but so were a dozen of his classmates who did not get this opportunity. He got that chance because of his connection to a professor closely tied to the Federalist Society.

In that sense, Kavanaugh’s career path was very different than that of Chief Justice John Roberts, who graduated from Harvard Law School years before the Federalist Society became a powerhouse in the legal profession.

Like Kavanaugh, Roberts clerked for a feeder judge, Judge Henry Friendly, and then for a Supreme Court justice. Unlike Kavanaugh, young John Roberts did not benefit from affirmative action for conservatives.

Meh. Presumably, there were other, perhaps less reliable, ways for conservative feeder judges to screen applicants for ideological compatibility?

The story of how Roberts became a Friendly clerk is painfully ironic. Roberts’ predecessor was Merrick Garland, the Supreme Court nominee that Senate Republicans refused to consider in President Obama’s final year in office. Friendly reportedly asked Garland to identify the smartest graduating student at Harvard, and Garland told his boss to hire John Roberts.

Roberts, in other words, does not owe his first big career break to a conservative fraternity. He owes it to a man he has little in common with ideologically. That may explain why Roberts has shown a bit of an independent streak on the Supreme Court. He owes far less to the Federalist Society.

Maybe. Or perhaps it’s his temperament. Or the fact that, as Chief Justice, he’s got a stronger incentive to look out for the legacy of the institution—it’s “The Roberts Court,” after all—than associate justices.

The troubling thing about Kavanaugh and Gorsuch’s careers is that they are made men. They would have had very fine lives if they weren’t plugged into a powerful conservative network, but they almost certainly would have led those lives in obscurity. And they know it. They know exactly who got them where they are.

This is not a recipe for an independent judiciary. The thing about loyalty is that it is not easily set aside. When you’ve spent your entire professional career depending on an ideological brotherhood for your advancement, you don’t easily become an independent thinker once you no longer need their help.

Ultimately, then, the punch line here isn’t that powerful. Millhiser doesn’t like the Federalist Society and calls it some names but maybe he’s just being too fair.

Looking for another reasonable source, I stumbled on a June NPR interview with Amanda Hollis-Brusky, author of Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution. She provides some interesting background:

HOLLIS-BRUSKY: The Federal Society (ph) grows up alongside the Reagan Revolution. You have a small group of law students at elite law schools who are conservative and libertarian-leaning. They see that conservative ideas and ideology are politically ascendant. And yet in their elite law schools, they don’t see those ideas represented in their curriculum. And so they decide that they need to found an organization, a club that would bring conservative and libertarian voices, scholars and perspectives into their law schools.

KELLY: And interestingly, you write one of their earliest faculty mentors that they brought in was Antonin Scalia.

HOLLIS-BRUSKY: A lot of Scalia’s ideas in writing about originalism and original meaning became deeply ingrained into the kind of founding consciousness of the Federal Society. And the organization really grew up as a organization that promoted Antonin Scalia’s conservative judicial philosophy.

KELLY: So how does this play out if we set this against the list that President Trump says? He’s got 25 names. He’s going to find his next Supreme Court nominee from that list. What role did the Federalist Society play in shaping that list?

HOLLIS-BRUSKY: I would say one very direct role is that Leonard Leo, who was the executive vice president of the Federal Society, took leave from the society to construct that list for President Trump. And so that list is in many ways a product of the Federal Society and its network.

KELLY: Leo in interviews has said the president called and asked him for a list, asked him to come up with this.

HOLLIS-BRUSKY: Yeah. And I think one strong indicator of Federal Society influence here – if you think about Trump’s other Cabinet nominees, his secretary nominees, he tends to gravitate towards nepotism, people who have been loyal, faithful. They’re his friends. When you look at his list of judges and the people that he’s put on the bench, it’s been entirely controlled by the Federal Society. And that is an indicator of the pull that the Federal Society has within that space, that Trump wouldn’t dare nominate someone who was just a family friend.

KELLY: Do we have any way of knowing how they may be seeking to exert influence on the pick, on who might rise to the top of this list of 25 names?

HOLLIS-BRUSKY: I think Leo, as a gatekeeper, has a lot of power and influence right now. And so as they’re walking through this list of nominees, they’re of course taking into consideration politics, which senators are more or less likely to vote for particular nominees. So there’s broader political considerations here. But Trump has said and the Federal Society has said as much – their focus is on getting verifiably conservative judges on the court and young judges and justices.

Again, this comports with my understanding. In high school and college, when I was first getting interested in and then studying politics, it was received wisdom in Republican and Conservative Movement circles that the judiciary tended to be liberal because, when Democrats appointed justices to the Supreme Court, they appointed liberals who would always stay liberal but, when Republicans appointed justices, they either appointed moderates or conservatives who would inevitably drift left. The explanation given was that the social pressures on Justices, whether in the fabled “DC cocktail party circuit” or from the elite media, rewarded liberal opinions. While some of that is ahistorical, it was nonetheless widely believed. And, I gather, was a large part of the impetus for the forming of the Federalist Society as a means of both promoting and vetting conservatives for the judiciary.

As I’ve gotten older and less partisan, I’ve come to prefer the ideal of a more neutral Supreme Court. I’d rather have nine moderate, independent Justices than reliable staunch liberals and staunch conservatives. Realistically, though, the pressures are enormous to find ideologues. The only time when moderates have a chance, really, is when the White House and the Senate are held by different parties. It’s why Barack Obama appointed Merrick Garland, who was both older and more conservative than one would expect from Obama; both Sonia Sotomayor and Elena Kagan, both confirmed with a strong Democratic-majority Senate, were more natural choices.

So far as I’m aware, the Democrats don’t have a true counterweight to the Federalist Society. The American Constitution Society, formed in 2001, isn’t nearly as powerful. But it’s not obvious that it’s necessary, either.

If the argument is simply that the Federalist Society promotes a conservative ideological agenda, and is therefore evil, it’s not one I find interesting. If the argument is that Supreme Court Justices who got there with the help of the Federalist Society are somehow subject to their control while on the bench, I’m interested but would need significantly more proof. After all, they’d likely have been under close scrutiny for a quarter century or so by that point so would be pretty reliable conservative votes.

The more intriguing argument, then, is one not implicitly made by Millhiser: that lower-court judges who got their seats with Federalist Society help are likely to shade their decisions to remain in contention for a promotion. That’s actually somewhat plausible to me. Then again, I’d think Democrat-appointed judges would have similar incentives.

Amusingly, the one recent attempt by a Republican President to break with the recent tradition of appointing judges backed by the Federalist Society was the Harriet Miers fiasco. She was, in many ways, a breath of fresh air: not particularly ideological, not from Harvard or Yale, and not from the standard clerkship and Court of Appeals path. But that actually made many—myself decidedly included—skeptical that she was qualified. While I thought she was an impressive, accomplished woman, I considered her unqualified for the Supreme Court because we’ve become accustomed to intellectuals with stellar judicial credentials. Like it or not, the Federalist Society grooms those people for the GOP.

FILED UNDER: Law and the Courts, Supreme Court
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. There’s nothing nefarious about The Federalist Society. I was part of the George Mason chapter during law school and we sponsored forums that included Judges and legal scholars from across the political and ideological spectrum, including one that ended up being broadcast on C-Span back in the day.

    From time to time, I still go to events that are of interest but given the fact that they usually take place in or near D.C. and I’m decidedly not in that area it’s not easy to get there for a luncheon event or something without disrupting the majority of the day. Nonetheless, they still publish useful material on a regular basis, and still regularly have events that include Judges and others from across the spectrum.

    The idea that they’re some secretive cabal is utterly absurd. It’s a group of conservative and libertarian Judges, Lawyers, Law Professors, and legal scholars. That’s all.

    As for the issue of judicial appointments, it’s not surprising that they’ve been involved in assisting Republican Presidents in picking nominees to the Circuit Courts of Appeal and the Supreme Court. Conservative Presidents tend to want to pick conservative judges and liberal Presidents tend to want to pick liberal judges. The Federalist Society just happens to be very good at coming up with highly qualified potential nominees on the conservative side of the political spectrum.

    People who see this as part of a vast conspiracy, as Millheiser apparently does, need to bring their tinfoil hats in for adjustment.

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  2. Gustopher says:

    This is not a recipe for an independent judiciary. The thing about loyalty is that it is not easily set aside. When you’ve spent your entire professional career depending on an ideological brotherhood for your advancement, you don’t easily become an independent thinker once you no longer need their help.

    Ultimately, then, the punch line here isn’t that powerful. Millhiser doesn’t like the Federalist Society and calls it some names but maybe he’s just being too fair.

    I think that you’re missing something in that punchline if you don’t think it’s powerful. It’s transformative.

    I don’t think there is a massive, secret conspiracy — it’s just a matter of forging network connections for ideologically verified candidates, at a point in their career when advancement depends on network connections.

    The argument that they’re not the best qualified because others had slightly better grades isn’t that interesting.

    There’s no such thing as a best candidate. For anything. There are lots of top-level candidates, and no real way to sort among them.

    I’m always wary of best person for the job arguments.

    More from Millhiser:

    Where affirmative action can make a difference is the mass of marginal applicants who are unquestionably qualified to go to the school of their choice, but who are not standouts.

    “Marginal” is almost certainly the wrong word there. If someone is unquestionably qualified, they aren’t marginal.

    I also think affirmative action is a bad metaphor when we aren’t talking about large numbers of positions. At the point of choosing an individual candidate for an individual position, it comes down to so many intangible things, including the old boys network.

    All affirmative action does there is get them a second look. It attempts to be a counterweight to the old boys network.

    The Federalist Society is just the old boys network on steroids.

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  3. MarkedMan says:

    Side note: They don’t have to be nefarious to be harmful.

    But one way that the Federalist Society and many, many other so-called Conservative organizations different from their progressive counterparts is that their funding is highly, highly secret. Doug, you are a member of the Federalist Society and I wouldn’t be surprised to find out that the local chapters run on dues and volunteers. But there is a significant full time payroll, just one of whom is Leonard Leo and people like that don’t come cheap. If their motives are above board why do they keep their sources of funds secret?

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  4. grumpy realist says:

    How many women and minorities are in the Federalist Society?

    Thought so.

    So how isn’t this just another case of “rich white boys looking out for each other” all over again, mmm?

    (Notes to the curious: if you keep the whole pie for your own group over and over again and never let anyone else play, don’t be surprised if the dispossessed decide that your authority isn’t worth anything. If it gets really bad you’re looking at violent overthrow and revolution.)

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  5. Lounsbury says:

    It is rather boring to whinge on about “harmfulness” as they are merely your ideological opponents. The silly comments in the other posts, “what about the Federalist Society” rather boring really.

    So you can be sure that it has wealthy benefactors, ah such a surprise.

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  6. Ben Wolf says:

    It should seem then that it must be because of the enormous wealth of the proprietors which places them above attention to the increase of their revenues by permitting these lands to be laboured. I am conscious that an equal division of property is impracticable. But the consequences of this enormous inequality producing so much misery to the bulk of mankind, legislators cannot invent too many devices for subdividing property, only taking care to let their subdivisions go hand in hand with the natural affections of the human mind.

    How does the Federalist Society interpret that as a matter of originalism?

    The stockjobbers will become the pretorian band of the Government, at once its tool and its tyrant; bribed by its largesses, and overawing it, by clamours and combinations.

    Or that.

    Another means of silently lessening the inequality of property is to exempt all from taxation below a certain point, and to tax the higher portions of property in geometrical progression as they rise.

    Oh my, progressive taxation. From a founding daddy? What say you Messrs. Kavanaugh and Mataconis?

    I hope we shall take warning from the example and crush in it’s birth the aristocracy of our monied corporations which dare already to challenge our government to a trial of strength, and to bid defiance to the laws of their country.

    Good thing we have lots of Federalist corporation crushing in the courts, right?

    Anybody want to hear the one from Franklin about profits belonging to all society? I imagine it’s on the wall in the FS lobby, because they’re scrupulous about obeying the original intent regardless of where that leads.

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  7. Gustopher says:

    The more intriguing argument, then, is one not implicitly made by Millhiser: that lower-court judges who got their seats with Federalist Society help are likely to shade their decisions to remain in contention for a promotion. That’s actually somewhat plausible to me.

    It doesn’t need to be that nefarious. There are enough lower-court judges that you can achieve the same effect as just watching the decisions.

    They aren’t loyal to the Federalist Society, the Federalist Society just points opportunities to the ones that agree. These ones get more opportunities to write decisions that get cited elsewhere — and that is the feedback loop, with everyone having perfectly fine ethics, considering each case on its merits, and arriving at a predetermined conclusion.

    There’s a possibly apocryphal story about lab mice being selected for docility and poor vision — the workers reach into the cages to pick mice at random for reproduction, and grab the ones who don’t notice the hand and run away from it. I don’t remember if the story is real or a joke, but without safeguards, this is absolutely what very well could happen.

    And that’s what the Federalist Society does — it creates a strain of ideologically inbred justices.

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  8. Gustopher says:

    I think it’s incredibly harmful for the President to have the Federalist Society choose the pool of potential nominees. But, that is the president’s prerogative.

    Just one more way the Trump administration is hurting America.

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  9. Just nutha ignint cracker says:

    I would agree that “nefarious” is probably the wrong term to use about the topic. I would probably use the term “intellectually limited” in the sense that all true disciples of “great” thinkers become so.

    The problem of becoming a true disciple of some great thinker is that it can limit one’s understanding of that great thinker. My take on what happened in the radical left of my youth–the 60s–is that the disciples of, say Herbert Marcuse (as the name that most readily comes to mind for me) did not, for all their desire to adhere to the philosophy he espoused, have the nuance necessary to bring their philosophical underpinnings to the world as it was changing before their eyes (and I don’t know of any particular evidence that Marcuse himself would be able to either). The net effect is that his intellectual progeny were not “the Herbert Marcuses of the future” and even more faint shadows of his currency.

    I suspect that Scalia is more nuanced than his intellectual progeny understand in much the same way. Not being able to see the nuance will yield the same results now as it did then–creating lockstep followers of some known Scalia that is only a faint shadow of the Scalia he had become over the ensuing years. I see the same sort of lack of evolution in the followers of Milton Freidmann, and in the evolution of Evangelical philosophy in the Protestant Christian community, but YMMV.

    For Conservatism or Libertarianism to be able meaningfully impact society in a positive manner, someone in the current or coming generations will need to transcend what the faithful understand as “the truth.” The Federalist Society is not the vehicle for that task. All it can produce is political hacks and specialists in retrograde practice. But that seems to be okay in the sense that what the Right wants to create is 1950, not 2050 and beyond.

  10. Just nutha ignint cracker says:

    @grumpy realist: I can’t remember the details anymore, but in response to an article about a recent practice of the political establishment (I think it had something to do with donor-controlled charitable trusts) that I forwarded to a friend recently, I commented “I see the problem now; we’re gonna run out of lamp posts.”

    To which he responded “and rope.”

  11. Michael Reynolds says:

    The Overton Window has been moved throughout my lifetime. It began at “choose the best, wisest candidates, regardless of party.” Then it became “choose the best candidate roughly in line with the president.” Then it became, “choose the candidate best able to lie about his or her position on Roe.” Now apparently it’s, “choose the most partisan political defender of the president.”

    As usual, the fault lies with voters who tolerate this, who support Senators who treat the Supreme Court as some kind of spoils of political war. Obviously in practice that’s what it very often is, but that doesn’t mean we should norm this kind of behavior. If we can’t confirm a justice to the court without three weeks of prep during which they are taught to lie artfully to the Senate, the process is. . . what’s the technical legal term? Oh, right: fcked up.

    It’s a sham process. In future how about a short list from the ABA and the Federalist Society and equivalent groups with memberships that go beyond the old white boys club? Then, what if whoever the president nominated, he was forbidden to engage in prep with the White House and required to answer questions openly and honestly under penalty of immediate dismissal if he/she lies?

    It is not okay that a nominee has to first become a credible liar.

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  12. James Joyner says:

    @MarkedMan:

    Side note: They don’t have to be nefarious to be harmful.

    Sure. But it the argument is simply “The Federalist Society is awful because they help conservatives get on the short list for judicial posts,” it’s not likely to be an argument of much interest to conservatives.

    @grumpy realist:

    How many women and minorities are in the Federalist Society?

    I don’t have the numbers but they’ve obviously promoted some women and minority judges. But this is a larger problem for the GOP: they’ve increasingly become the party of old, white men. That’s bad for the GOP, which is bad for the country.

    @Just nutha ignint cracker:

    For Conservatism or Libertarianism to be able meaningfully impact society in a positive manner, someone in the current or coming generations will need to transcend what the faithful understand as “the truth.” The Federalist Society is not the vehicle for that task. All it can produce is political hacks and specialists in retrograde practice.

    I think that’s too harsh but fully agree that having a too-narrow ideological litmus test is problematic, especially if it’s the main vehicle for selecting Republican judges.

    @Michael Reynolds:

    In future how about a short list from the ABA and the Federalist Society and equivalent groups with memberships that go beyond the old white boys club? Then, what if whoever the president nominated, he was forbidden to engage in prep with the White House and required to answer questions openly and honestly under penalty of immediate dismissal if he/she lies?

    I’m okay with that process. I gather that a lot of states—including Republican-leaning ones like Arizona—do something very much like that. I see no chance in hell of it happening but would prefer it to the current process.

  13. grumpy realist says:

    @Just nutha ignint cracker: This is why I’ve always said that progressive taxation is nothing more than insurance paid by the upper classes against revolutions and getting hanged from lampposts when the rabble get fed up.

    I figure that after enough chaos we’ll go back to noblesse oblige, which has always seemed an awfully good basic ethics system.

  14. Ben Wolf says:

    You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions — a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our Judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is, boni judicis est ampliare jurisdictionem, and their power the more dangerous, as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that, to whatever hands confided, with the corruptions of time and party, its members would become despots.”

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  15. Gustopher says:

    I think in the era of a Reality TV President, we need a new process…

    Judicial Survivor!

    Start with 9 candidates on a deserted island. They must build shelter and a courthouse, and then dispense justice. Fly in lawyers for various apelette court cases, let them hear cases.

    The only food is what they catch, augmented by pig carcasses that weigh as much as the losing attorneys or anyone they vote off the island. Maybe lamb, if anyone is Jewish.

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  16. MarkedMan says:

    I’ve been thinking about James’ question here on and off all day, and I realize that I was conflating three questions that are actually separate.

    The first was “Do I like the Federalist Society?” The answer is no. I don’t like their way of viewing the world and the United States. I feel they are just yet another organization whose guiding philosophy is to protect the rich, privileged and otherwise powerful at the expense of the little guy. And I believe they have fallen into a toxic trap by getting so much funding from such a small group of powerful people. Frankly, I suspect that if the one of the Mercers or Kochs had a serious disagreement with one of the intellectual or organizational leaders of the FS, that leader would shortly find themselves gone. That’s not good for any movement that wants to stand for principles. They effectively become employees of their biggest donors.

    The second is “Do I feel they are nefarious?” For the reasons outlined above, I’ll change this to “Do I think the Kochs and the Mercers and their ilk are nefarious?” And, while I admit I have no way of knowing for certain, my instinct is that they are not. I don’t like their world view which I think it is very harmful to our country and to basic decency. But I have no reason to think anything other than that in their own minds they are acting for the good of the country.

    The third is the one that touches on this case and I suspect is the reason this came up: “Is it good for the country or even the Republican Party that the White House and the Senate have allowed an outside group to select virtually all their judicial appointments?” And the answer to this is resoundingly “No”. I think we can all see why it would not be good for the country but why is it so bad for the Republican Party? It is symptomatic of a decades long demise wherein the party leaders have outsourced all deep thinking to self-proclaimed conservative think tanks and billionaire hobbyists. The fact that there is no one within the White House or the Senate who sees the need for seizing the reins on judicial appointments is extremely troubling. The appointment of justices speaks to the very core of any theory of governance. But I think you have to go back to Nixon to find a Republican President who had an actual governing philosophy. There were a few more Republican Senators who did after him but they are gone now too.

    So, bottom line, the Federalist Society has every right to try to influence the selection of justices, as does any organization. But the fact that the Republicans have turned over the entire decision making process to this outside organization is indicative of a core rot in the party.

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  17. CSK says:

    @MarkedMan:

    They may well have turned it over to the Federalist Society at the beginning of the Trump administration on the grounds that Trump, on his own, would not know Brett Kavanaugh from Brett Maverick. On his own, Trump would have nominated Judge Jeannine.

  18. HarvardLaw92 says:

    James,

    Your understanding is pretty much correct. The competition for partner track slots at white shoes, including mine, is incredibly intense, and while we do have the occasional hire outside of the Ivy universe, it is honestly very rare and the exception to the rule. Better than 2/3rds of our current roster, for example, originated from either Harvard Law, Yale Law, or Duke Law as a distant third. Thus, the planning required to attain these slots begins before one is even admitted to law school.

    Once admitted to the right school, it becomes a matter of gaining the approval of the right professors in order to be able to benefit from their connections with former students now serving in appellate judgeships with respect to gaining a clerkship, and excelling (and being seen to excel) in both academic rankings and extracurriculars. Being outside of the top 3% of your class is essentially a death knell with respect to hiring at most major firms in my universe, and we generally start at the top of the list and work our way down with respect to recruiting. We also prioritize potential recruits with clerkships over those who were unable to attain one, and we rank clerkships in terms of desirability and potential benefit to the firm. For example, given what we do and where we operate, someone who scored a clerkship in, say, the 5th Circuit is at a distinct disadvantage relative to someone who clerked on the DC or 2nd Circuits. We’ve even had potentials who somehow managed to simultaneously attain a JD and PhD, just so they’d be more marketable. It’s all about how the firm can benefit, both from the innate ability of the recruit and from the connections he/she has built over the course of their preparatory work.

    The moral becomes that even being in the top 3% and scoring a federal clerkship isn’t necessarily good enough. Gaining an editor spot on Law Review, and the countless hours of unpaid labor that entails, is also a given. Some, like myself, also choose to pursue experience as a federal litigator /AUSA if a slot can be found in the right district (essentially DC and SDNY). The marketability bump from having federal trial experience as a litigator in those two districts is pronounced. I have literally seen the difference between two potential recruits, one who received an offer and another who did not, come down to the tenor of their writing on Law Review and a recommendation from a federal appellate judge. Aside from that, they were equally qualified and the distinction between them became razor thin. One is now a non-equity partner here and the other found himself working at a super-regional in Atlanta. It’s a combination of what you know and who you know. Making the right connections, in and of itself, won’t get you in the door (popular wisdom to the contrary notwithstanding), but it can be the difference between getting in or being left behind. Kavanaugh, for example, has every connection in the world but only managed to get an offer from Kirkland. Several firms in NY, including us, passed him over despite his connections.

    In my case, I had identified the two firms I most wanted to pursue before I had even been accepted to HLS, and did extensive research with respect to which professors had good relationships with former students who were partners at those firms and which professors had good relationships with former students who were subsequently serving as federal judges. I then had to build relationships with and gain the respect of those professors. Class schedules had to be appropriately arranged, etc. My appellate clerkship came about (at least partially) directly as a result of having an excellent relationship with the right professor and that professor being willing to make a phone call on my behalf. Academic ranking definitely played a role as well, and I wouldn’t have been considered at all without that, but I also wouldn’t have gotten that clerkship without that phone call. I wouldn’t have gotten the subsequent clerk position without having gotten the first one with a judge who was also willing to go to bat and make it happen. Cold, hard truth.

    It very much involves a great deal of prior planning and (I hate to use this word, but …) scheming. One has to have every step of the game planned out ahead of time and arrange every action, every class choice, every professorial relationship, every summer position, every friendship, etc. with a mind to executing that plan. It does sound cutthroat, and I suppose that it is, but the rewards are well worth it. A first year hired by us can expect a starting salary in the $180,000 range, with a bonus in the $20,000 range. If he / she scored a appellate clerkship, we’ll throw in a signing bonus in the $125,000 range. Supreme Court clerks can expect around $330,000. Non equity partner salaries, for those who survive the gauntlet, range around $900,000 with a sizeable bonus. Equity partners can expect partnership shares in the $3.8 million range annually. Those figures are not unusual; we all regularly match increases given by other firms in our orbit, because failing to do so can result in a hotly desired prospect signing with the another team. Given those numbers, you might be surprised (or not) at what lengths people will go to in order to gain an edge.

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  19. HarvardLaw92 says:

    @CSK:

    FS was founded from its inception with the goal of creating a network of conservative judges and others who would be able to help increase the conservative presence in the federal judiciary. They’ve been pretty successful in that regard. There is no way they were going to sit back and allow Trump to make a decision like this on this own, without their input. That said, I wouldn’t consider them to be evil. Just driven ideologues.

    In other words, nauseating, not nefarious.

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  20. HarvardLaw92 says:

    It’s also worth noting that John Roberts and Brett Kavanaugh are not remotely comparable. John, however much I may disagree with him, is – frankly speaking – brilliant. He’s one of the smartest people I have ever had the pleasure of knowing. The quality of his intellect and the depth of his thinking can blow the walls off of brick buildings, and from everything I have been told, that has been true of him from the outset.

    Kavanaugh, by comparison, is a minor intellect who has traded more on the old boy nature of his connections. Few people are aware that he originally only managed to score a clerk spot in the 3rd Circuit. He only made it onto the 9th via direct intervention from a former professor, and he was subsequently rejected for a clerkship with Rehnquist before finally managing to squeak into a slot under Kennedy (again due to direct intervention on his behalf).

    So, major intellect and brilliant thinker who was pursued, pretty much by everyone he ever worked for, versus a minor intellect who has had to trade on favors and connections to accomplish anything he’s achieved. They are not remotely in the same universe, and – again frankly speaking – the idea of both of them being on the same court is insulting.

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  21. Andre Kenji de Sousa says:

    The problem is not the Federalist Society. The problem is outsourcing Judicial nominations to a third party organization. The Senate is supposed to advise and consent, not a outside organization. Imagine if Center for American Progress or NARAL begin to vet nominees for Democratic Presidents without any input from the Senate.

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  22. gVOR08 says:

    Wiktionary:

    nefarious (comparative more nefarious, superlative most nefarious)
    1. Sinful, villainous, criminal, or wicked, especially when noteworthy or notorious for such characteristics.
    Usage notes: Commonly used in contexts involving villainous plans, conspiracies, or actions

    Prior to the 2008 financial collapse did the banksters have a nefarious scheme to destroy the world economy? No. Did the banksters actions nearly destroy the world’s economy? Yes.
    Evil intent is not necessary to do evil.

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  23. Hal_10000 says:

    he Democrats don’t have a true counterweight to the Federalist Society.

    They don’t need one. The Federalist Society is a counterweight to the law schools that tend to turn out liberal justices and lawyers. It’s only seen as suspicious by those who think they are entitled to a liberal judiciary and see any conservatives justices as some sort of sinister plot.

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  24. HarvardLaw92 says:

    @Hal_10000:

    I’ll have to agree with this. The degree of contempt for conservative legal theory within the NYC legal establishment, and to be honest within most Tier 1 schools that I have working knowledge of, most especially HLS, is palpable and profound.

    I deeply disagree with them, and to be frank find their concept of the law to be not only misguided, but also distasteful. I’m not remotely alone in that viewpoint. I don’t fault them for trying to build their own network of influence, although I will generally thwart hiring their devotees. Much like our current society, it’s a case of oil and water just not mixing. The two philosophies of the law are simply incompatible. They don’t fit in well and the few we’ve taken a chance on generally caused tension and dissension until we managed to rid ourselves of them. Our firm is not unusual in that regard, so I suppose I can understand why they’d form their own network – they are profoundly shut out of ours. They just happen to have stumbled on a perfect storm, politically speaking, and are taking advantage of it. If the tables were turned, we’d certainly be doing the same. It is unavoidably, by its very nature, a zero-sum game.

  25. James Joyner says:

    @grumpy realist:

    noblesse oblige, which has always seemed an awfully good basic ethics system.

    Noblesse oblige is a byproduct of aristocratic wealth. We’ve created the illusion of meritocracy, in which those who get wealthy figure they’ve earned every penny and that those with less should have just worked harder.

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  26. James Joyner says:

    @MarkedMan:

    It is symptomatic of a decades long demise wherein the party leaders have outsourced all deep thinking to self-proclaimed conservative think tanks and billionaire hobbyists. The fact that there is no one within the White House or the Senate who sees the need for seizing the reins on judicial appointments is extremely troubling. The appointment of justices speaks to the very core of any theory of governance. But I think you have to go back to Nixon to find a Republican President who had an actual governing philosophy.

    I’d argue Reagan had much more of a governing philosophy than Nixon, who was a pragmatist at heart. And, if we’re counting pragmatism combined with experience and good judgment as a governing philosophy, then George H. W. Bush was Nixon without the paranoia. But that was a long time ago.

    Still, I don’t think the Federalist Society lists are so much outsourcing thinking as outsourcing vetting. I’m not sure any post-Reagan president had any core philosophy on judges. Even Obama, who was a Constitutional Law professor, was pretty much a pragmatist on that count. FS is about ensuring the judges are likely to stay on brand, not establishing the brand.

  27. James Joyner says:

    @gVOR08: P

    rior to the 2008 financial collapse did the banksters have a nefarious scheme to destroy the world economy? No. Did the banksters actions nearly destroy the world’s economy? Yes.
    Evil intent is not necessary to do evil.

    Sure. But this is just another way of saying “I don’t like conservative legal philosophy.” That’s a perfectly valid position of course and, as @HarvardLaw92 notes, one pretty widely held in elite legal circles. But it’s not really a criticism of the Federalist Society per se.

  28. James Joyner says:

    @Andre Kenji de Sousa:

    The problem is outsourcing Judicial nominations to a third party organization. The Senate is supposed to advise and consent, not a outside organization. Imagine if Center for American Progress or NARAL begin to vet nominees for Democratic Presidents without any input from the Senate.

    One presumes Senate Republicans, certainly those on the Judiciary Committee, are in fact consulted before nominations are made. Regardless, the Senate still has to vote to confirm judicial nominations.

    As to the Democrats, I don’t know what process they use to select judicial nominees. I do know that various Democratic-leaning think tanks are exceedingly influential in feeding people into foreign policymaking posts. I don’t find that the least bit problematic.

  29. grumpy realist says:

    @James Joyner: We seem to have mushed together the worst of all belief systems. The dark side of Horatio Alger’s “striving boy makes good” seems to be the belief “people who don’t succeed are lazy and it’s their own fault and we don’t have to do anything to help them.”

    Nice self-justification system when you’re the scion of a rich family or otherwise taking advantage of your prep-school connections.

    And I’m getting old enough that I’m starting to not even care about the whole selfishness and jerkitude which seems to have affected US culture. At some point, stupidity is going to have to hurt. The US is going to learn the hard way that laissez-faire greed is no basis for a sustaining economic ecosystem. And the social conservatives are going to discover the hard way that outlawing abortion isn’t a magic bullet which fixes all the problems and suddenly causes people to become pious, God-fearing Christians.

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  30. Michael Reynolds says:

    @HarvardLaw92:
    That all tracks with what I saw from my lowly position at Wilmer, Cutler’s law library. They offered to send me to law school – evidently unaware that I had a GED and zero college. Nice offer nevertheless.

    But by then I’d seen the way they worked associates. They’d never have dared treat staff the way they treated those poor bastards – to a man or woman they were Summa/Ivy/Law Review people. I’d leave work on Friday and come back on Monday and associates would be exactly where I’d left them, buried under Federal Supplements in a carrel. Then 20% would end up partner track and the others were tossed aside like Doritos bags.

    I’ve been making Wilmer/Kirkland/Cravath junior partner money for 30 years working three hour days in sweat pants. Those people (I imagine this includes you as well) work too hard. Plus: suits and ties.

  31. DrDaveT says:

    @HarvardLaw92:

    I deeply disagree with them, and to be frank find their concept of the law to be not only misguided, but also distasteful.

    Can I beg you to take a few minutes to lay out what, exactly, “conservative legal theory” espouses, and how it differs from what the liberal legal establishment espouses? I’ve been unable to extract any such précis from James or Doug, which was causing me to conclude that there really wasn’t any philosophy or theory behind the decisions. If you have the secret decoder ring, please share so that I can understand where these people (or at least the intellectually honest subset among them) are coming from.

  32. Just nutha ignint cracker says:

    @James Joyner:

    Still, I don’t think the Federalist Society lists are so much outsourcing thinking as outsourcing vetting.

    In the case of the current administration and GOP Senate caucus, I would go with both, but as you’ve noted, I’m a little harsh. In any event, the picks aren’t going to get any more impartial anytime soon and the partisan confirmation circus will continue. Stock up on popcorn if you plan on watching these shows.

  33. HarvardLaw92 says:

    @Michael Reynolds:

    Very much so. New associates here are routinely expected to put in 80 to 100 hour work weeks, and to be frank, that’s the minimum. If someone legitimately expects to gain a partner track here, they’d better be essentially living at the firm for their first few years, otherwise they’d do well to start looking at super regionals down South.

    The competition is indeed fierce, but we have reasons for imposing the regime: we need to ensure that only those capable of performing under fire, of surviving and excelling in the unbelievable intensity of what we do and the matters that we handle, make it through. People may look good on paper, have every qualification known to mankind and grades to match, but you just can’t know how they are going to perform until they’re actually in the arena under stress. It’s not an environment for the faint of heart, and we’re not paying what we’re paying these folks for mediocrity (read mediocrity to mean anything less than perfection). Goldman is famous for its annual March bloodbath for the same reasons.

    I’ll admit to thriving on this environment. I love the pace and the work, I have from the first day that I walked through the door here, but I also have to admit that I also no longer work nearly as hard as associates do. I still put in 60 hour weeks, by and large, but what I actually do, the nature of the work that I perform, has changed. It’s much more big picture / strategic thinking now. I can’t imagine retiring just yet, but I do think about it now at times, whereas before the thought would never have entered my mind. Chalk that up to age and realizing that I’ve watched my kids grow up via remote feed. That they are the thoroughly decent and accomplished people they’ve become is entirely due to my wife’s influence. She was there; I largely wasn’t. Everything has its price, but too often we don’t realize what we’ve actually paid – the true costs of the deals we make with ourselves – until after we’ve paid.

    I will admit, though, that I love suits and ties. Nothing feels better to me / on me than a Henry Poole in the right fabric.

  34. HarvardLaw92 says:

    @DrDaveT:

    Without writing a novel on the subject (which one could easily do), it boils down to a different philosophy about the nature of law and the role of the judiciary in applying and interpreting it.

    Conservative jurists tend to believe that the intent of a statute or a constitutional provision is fixed. Immutable. It means exactly what it meant at the time that is was written within the confines of what the people who enacted it meant when they wrote it. Beyond that, the meaning of the section under consideration can only be extended to the precise meaning of the words with which it is constructed. Textualism and originalism, collectively, encompass the bulk of conservative legal theory.

    For example, there is no equal protection clause contained within the verbiage of the 5th Amendment. There is only the guarantee of due process with respect to a person being deprived of life, liberty, or property. For a textualist, the outcome of an examination of the 5th Amendment in, say, a case where a law disproportionately burdened a minority would determine that such a law does not run afoul of the 5th Amendment – because it contains no verbiage debarring that treatment.

    Someone like myself, in contrast, would argue that the history of our founding, for examples the principles embodied in the Declaration of Independence and elsewhere, confirm a basic sense of fairness which underpins the Constitution. The right to be treated equally by the law for all who come before it must be presumed to be contained in the amendment, even though it is not explicitly contained in the verbiage.

    If I were required to boil it down to a single concept, I would put it this way: for a conservative legal theorist, substantive due process pretty much doesn’t exist. For someone like me, on the other side of that argument, it is the foundational principle on which the law must operate, lest courts become referees dogmatically applying exact verbiage and ignoring anything that doesn’t fit within it.

    At its most basic, I suppose that the competing theories reflect the underlying belief structures of the two schools of thought – conservativism and liberalism – which underpin them. One resists change, while the other embraces it. One seeks to limit government as an imposition on liberty, while the other seeks to expand government as the guarantor of liberty on equal terms for all. Hopefully that makes some sort of sense.

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  35. DrDaveT says:

    @HarvardLaw92:

    Hopefully that makes some sort of sense.

    It does, but I had misread your pronouns here and thought you were saying that you disagreed deeply with the NYC legal establishment. I was hoping for an intelligent explication and defense of conservative judicial theory by someone who has thought the whole thing through and finds the arguments intellectually compelling.

    ETA: Of course, it’s hard to reconcile that stated theory with decision like Hobby Lobby or Citizens United. Or with (say) ending slavery, for that matter…

  36. gVOR08 says:

    @James Joyner:

    Sure. But this is just another way of saying “I don’t like conservative legal philosophy.”

    True enough. But I’m also saying that, from a pragmatic point of view, whether the Federalist Society is “nefarious” is irrelevant. They are harming the country. If you take that to mean they have an ideology which they are pursuing fairly and squarely, but the ideology is harmful, fine. (I don’t think you disagree that many of the results of modern American “conservative” ideology are harmful.)

    I’m unaware that anyone has accused the Federalist Society of illegality, or even of being a secret cabal (although at the level of funding, they may be a secret cabal). I’m simply not seeing what useful question is answered by arguing they’re not “nefarious”.

    My comment is also a reference to George Lakoff’s view that conservatives tend to view everything through a framing of simple morality. I would argue that framing all questions as questions of simple morality is the underlying conservative error.

  37. gVOR08 says:

    @James Joyner:

    And, if we’re counting pragmatism combined with experience and good judgment as a governing philosophy, then George H. W. Bush was Nixon without the paranoia.

    I, for one, certainly do count pragmatism as a governing philosophy. I would argue it largely was Obama’s governing philosophy. I always thought the criticism of H. W., that he had no new ideas, was a bit silly. We have plenty of ideas, I’ll happily settle for competent and pragmatic.

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  38. MarkedMan says:

    @gVOR08:

    My comment is also a reference to George Lakoff’s view that conservatives tend to view everything through a framing of simple morality. I would argue that framing all questions as questions of simple morality is the underlying conservative error.

    I agree, and would add that is is not just a conservative error. This is the fundamental human dilemma whenever our species tries to reach a little higher. There is an idea that because what I want to do is morally right, I am justified in bypassing the rules and norms in order to achieve it. It is a truism that “the ends doesn’t justify the means” but in reality we celebrate this every night on our television when the good cop/soldier/FBI agent breaks the rules to make sure the bad guys don’t get away, or theeco-heroes hack into the evil corporations network to expose them.

    The genius of the founding fathers was, in part, that they recognized that this path eventually leads to calamity. To be a decent country is to be a fair country and to be governed by laws and not by a “good king”. They recognized that even in those rare cases that a king was actually good and remained so, they left behind chaos in their wake when they died or became infirm. One of the reasons George Washington punished his soldiers who tortured and mistreated enemy prisoners even when he knew the British engaged in such actions as a matter of policy was that going down that road would forever impact the American character.*

    Over the years I’ve come to believe that the table stakes for having a just and fair society is
    1) The rule of law
    2) Minimal corruption
    3) A peaceful mechanism to transfer power at regular intervals

    Of these, perhaps the rule of law is the most fundamental.

    *There were other reasons of course. The British deliberately treated the American soldiers as criminals rather than captured enemies because they did not recognize the legitimacy of America as a place entitled to raise an army. Washington scrupulously treated the British soldiers as enemy soldiers to reinforce the idea that he headed a legitimate army and that Britain was another country.

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  39. MarkedMan says:

    @gVOR08:

    We have plenty of ideas

    Truer words were never spoken. As someone in high tech, I have lots of great, even world changing ideas. So have many other engineers. Good ideas are a dime a dozen. Give me a solid and pragmatic business plan and an adequate source of funding to go along with it, well, then we have something. Those conditions though, are much, much rarer.

  40. MarkedMan says:

    @James Joyner: You may be correct about HW Bush. FWIW, I’ve always thought of his judicial appointments as being similar to Obama’s, albeit it with a lean towards protecting business rather than the rights of individuals.

    I don’t think it is a negative that Obama (and perhaps HW) doesn’t have a particular judicial philosophy, which is separate from a governing philosophy. If a President believes, as I do, that the most important role of the Supreme Court is to give evidence that we are a nation of laws, equally and fairly applied, then you don’t need a special philosophy. You choose a Justice that has a reputation for brilliance, fairness and honesty. And you need to chose someone who has enough imagination to see the unexpected ripples that can be caused by a decision. I think that candidates chosen on those principles can easily receive 80 votes or more in the absence of one or both parties attempting to use the courts as a change agent. And I think the decisions and opinions of such Justices more often reinforce the idea that America is a land where people can get a fair shake regardless of how little or how much money they have, and despite their religion, gender or race.

    The modern self-described Conservatives, on the other hand, see the courts as primarily a vehicle for social change, much the way Roosevelt did (although obviously in pursuit of very different agendas). And, since it is extremely risky to appoint someone who will just ignore the law and rule in a partisan fashion, you need to have a strong philosophy of the judicial system that maintains the rule of law but shifts things in your desired direction. This is very different from simply appointing judges who rule in ways you like.

    Trump obviously is incapable of conceiving of a philosophy of any type, much less a judicial one. But the Republican Senators who may have had such a bent are also gone.

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  41. Andre Kenji de Sousa says:

    @James Joyner:

    As to the Democrats, I don’t know what process they use to select judicial nominees. I do know that various Democratic-leaning think tanks are exceedingly influential in feeding people into foreign policymaking posts. I don’t find that the least bit problematic.

    RBG was chosen because Orin Hatch did not want Bruce Babbitt in the SCOTUS. I personally think that Elena Kagan was a horrible choice, but Senate Democrats chose her, not a outside group. To the point that Justices nominated and confirmed by Democrats are less predictable(With the exception of Roberts) than their Republican counterparts.

  42. HarvardLaw92 says:

    @DrDaveT:

    ETA: Of course, it’s hard to reconcile that stated theory with decision like Hobby Lobby or Citizens United. Or with (say) ending slavery, for that matter…

    Which is, of course, the fundamental problem with textualism / originalism: they’re both excuses for “I want the law to preserve my preferred historical status quo”. When we run into a situation where it’s necessary to engage in subjective interpretation beyond the limits of the written word / original intent in order to achieve that goal, conservative judges / justices have wasted no time in doing so in order to arrive at their desired outcome.

    Case in point: Gonzales v. Raich, in which Scalia wasted no time in venturing well beyond the conservative viewpoint of the Commerce Clause in order to preserve the ability of the federal government to criminalize intrastate commerce in marijuana. An honest interpretation in accordance with his extant writings at the time would have forced him to find that the federal government has no power to exert regulatory authority over that scenario.

    However, Scalia evidently didn’t like marijuana use, so he twisted the Necessary and Proper Clause to arrive at a tortured defense of something that, intrinsically and ideologically, he should have vehemently opposed. It was hypocritical in the extreme.

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  43. Monala says:

    This is an excellent, informative, and thought-provoking comments thread.

  44. george says:

    @Gustopher:

    There’s no such thing as a best candidate. For anything. There are lots of top-level candidates, and no real way to sort among them.

    I don’t know, I can think of quite a few examples in sport where there have been best candidates, and having that best candidate has been the difference between winning a championship or not.

    Better to say that few jobs are really that select that you need the absolute best. The difference between having say Lebron-James and your average NBA forward (any one of which is several orders of magnitude better than your average basketball player around the world) is still significant if you’re chasing an NBA title.

    And I’ve seen situations in engineering where a very specific and rare technical skill is needed immediately for a project; in that case there often is clearly a best available candidate (often the only one who has the particular skill you need).

    But in 99.999% of jobs out there – yeah, there’s no best candidate, or at least no significant difference between the best available candidates.

    Its Sunday, I’m arguing for the sake of arguing. I agree with you other than that quibble.

  45. george says:

    @Andre Kenji de Sousa:

    To the point that Justices nominated and confirmed by Democrats are less predictable(With the exception of Roberts) than their Republican counterparts.

    Actually I’ve always heard the reverse. For instance this article in Washington Post:

    https://www.washingtonpost.com/opinions/marc-a-thiessen-why-are-republicans-so-awful-at-picking-supreme-court-justices/2012/07/02/gJQAHFJAIW_story.html?noredirect=on&utm_term=.a57545d1fe6b

    gives several examples of Republicans picking judges who turned out to be liberal (O’Connor, Kennedy, Souter, and as you point out, Roberts). I take that as a hopeful sign …

  46. DrDaveT says:

    @MarkedMan:

    Over the years I’ve come to believe that the table stakes for having a just and fair society is
    1) The rule of law
    2) Minimal corruption
    3) A peaceful mechanism to transfer power at regular intervals

    I’d be a bit careful about using this formulation, because different people hear very different things when you say “the rule of law”. In particular, people have strong disagreements about the tradeoff between “more enforcement” and “more equal enforcement” — and both sides of that debate think of their side as advocating for “rule of law”.

  47. liberal capitalist says:

    @Doug Mataconis:

    There’s nothing nefarious about The Federalist Society. I was part of the George Mason chapter during law school …

    The idea that they’re some secretive cabal is utterly absurd….

    People who see this as part of a vast conspiracy, as Millheiser apparently does, need to bring their tinfoil hats in for adjustment.

    Funny… this is EXACTLY the type of DENIAL a member of a nefarious society WOULD MAKE !!! Harrumph !!!

    (… adjusts his tinfoil hat, and goes back to reddit subfoum)

  48. R. Dave says:

    @HarvardLaw92: I don’t fault [conservative lawyers] for trying to build their own network of influence, although I will generally thwart hiring their devotees. Much like our current society, it’s a case of oil and water just not mixing. The two philosophies of the law are simply incompatible. They don’t fit in well and the few we’ve taken a chance on generally caused tension and dissension until we managed to rid ourselves of them.

    I really don’t understand this. Admittedly, you’ve been around the block far more than I have, but I spent 8 years as an associate in Big Law firms in NY (5 years at the one that hired me out of law school followed by 3 years at another firm that promised me a partnership track before I jumped ship to go in-house), and it’s a stretch to me to come up with a scenario in which an associate’s personal legal philosophy would interfere with their ability to do the work assigned to them. My view of substantive due process or the right interpretive lens for interpreting the loopy drafting of the 2nd Amendment really has no impact on my ability to negotiate and draft a suite of asset sale docs, apply current SEC guidance to a disclosure issue for an underwriter, draft a complaint for a contract dispute, etc. I suppose it’s possible in a litigation context that if someone were so ideologically blinkered that they simply couldn’t grok anything other than their own worldview, they might not be able to spot available arguments from another angle, but I would think any credible candidate for a job at a top firm would be able to argue all sides regardless of their own personal views.

    Am I missing something about practice at the associate level that you believe would make ideology relevant, or are you just taking the long view and screening out associates because eventually some of them will make partner, and a mix of conservative and liberal partners produces friction?

  49. HarvardLaw92 says:

    @R. Dave:

    We generally screen them out because past experience has taught us that they’re just not a good fit. Their presence tends to causes tension and rancor amongst the associate ranks, and when we’re paying a group of people what we’re paying these people, we want and need them to be at their best 24 hours a day. Extraneous distractions and factors which introduce dysfunction into the environment negatively affect both the quality and the volume of the work that we obtain from them.

    Generally speaking, the firm is more productive – and we as partners have far less drama to referee – if they’re just excluded upfront. It’s all about what best benefits productivity and the overall environment of the firm.

  50. R. Dave says:

    @HarvardLaw92:

    Wow, that’s amazing to me. I hear you on the prioritization of the firm’s interests. I just can’t imagine associates being so unprofessional that they can’t work with people who disagree with them politically. I never really saw it at the firms I worked for – whenever it became apparent in casual conversation that there was a disagreement over something sensitive like politics, people generally just gracefully changed the subject. Of course, I entered practice a decade ago, so maybe things are more tense now, and our class did start our careers in the middle of the financial crisis, so everyone was so grateful to even have a job that we all just kept our heads down and worked our butts off.

    On the flipside of things, I’m pretty sure I was screened out by one firm in OCI for being left-of-center. I had listed work I did with the Democratic Party on my resume, and the interviewer explicitly asked me if I would have a problem working for a firm that (a) leaned to the right and (b) had a lot of project finance clients (my preferred practice area) in the oil and gas sector. It was clear from his tone that I wasn’t going to get the offer at that point. I remember being shocked that a firm would be so partisan and ideologically narrow, and I have to admit, I’ve had a low opinion of them ever since and would be inclined to veto them on my deals as an in-house attorney as a result.

  51. Andre Kenji de Sousa says:

    @george: Thiessen is a pro-torture hack that forgets the convenient detail that Souter and Kennedy were nominated under Democratic Senates and that Reagan had no space to nominate a right-wing ideologue in 1981.

    Besides that, if people like Kennedy, Roberts, O’Connor or even Souter are “liberal” what the f* is a Conservative?

  52. Just Another Ex-Republican says:

    @HarvardLaw92: That’s exactly why textualists and originalists annoy me. (IANAL). Too often it feels like a sham to avoid arguing one’s own views, and instead using the old debater’s trick of hiding behind reference to authority. The founders were human, and came from a lot of different viewpoints-you can find something to justify almost anything somewhere in their writing. It’s impossible to avoid bias, but too many people like Scalia want to pretend they are, and it’s only those liberals interpreting things. A “well regulated militia” included things like mandatory gun registration at the time–just TRY and get that by a so-called originalist today. It’s maddening and dishonest.

  53. Just nutha ignint cracker says:

    @Monala: That’s because most of the trolls probably don’t even know what the Federalist Society is and probably haven’t even read this thread.

  54. Just nutha ignint cracker says:

    @R. Dave:

    I just can’t imagine associates being so unprofessional that they can’t work with people who disagree with them politically.

    I’ve seen this in higher ed, so I have no particular problem with seeing it in white shoe law. I can understand how someone might not have seen it (or been able to ignore it) and might think it unlikely, though.