The Conservative Legal Machine

There's a reason President Trump's Supreme Court picks are "normal" in a way his national security and economic teama are not.

In his post “The Most Normal Thing about the Trump Administration,” Steven Taylor noted, while he seldom colors within the lines otherwise, Trump’s judicial appointments are exactly what one would expect for a Republican President. One explanation is that, as Hal_10000 suggests, is that Trump has “outsourced” the selection of nominees. And, indeed, he has. While Senator Bob Casey and others are claiming they were “dictated to him by the Heritage Foundation,” it’s actually less sinister and more complicated than that.

David Brooks explains in a column titled “It Took a Village to Raise Kavanaugh.”

Kavanaugh is the product of a community. He is the product of a conservative legal infrastructure that develops ideas, recruits talent, links rising stars, nurtures genius, molds and launches judicial nominees. It almost doesn’t matter which Republican is president. The conservative legal infrastructure is the entity driving the whole project. It almost doesn’t even matter if Kavanaugh is confirmed or shot down; there are dozens more who can fill the vacancy, just as smart and just as conservative.

This community didn’t just happen; it was self-consciously built. If you want to understand how to permanently change the political landscape, it’s a good idea to study and be inspired how it was done.

Back in the 1970s, the legal establishment was liberal. Yale Law School was the dynamic center of liberal legal thinking. Lawyers who had begun their careers during the New Deal were at the height of their power and prestige. The Ford Foundation funded a series of legal aid organizations to advance liberal causes and to dominate the law schools.

Even Republican Supreme Court picks like Harry Blackmun and Sandra Day O’Connor tended to drift left because the prevailing winds in the whole profession were strongly heading that way.

As Steven Teles notes in “The Rise of the Conservative Legal Movement,” the first conservative efforts to stand up to the left failed. Business groups funded a series of conservative public interest law firms. But the business groups had no intellectual heft, they were opportunistic and they had zero moral appeal.

First came the critique. In 1980, Michael Horowitz wrote a seminal report for the Sarah Scaife Foundation, explaining why conservatives were impotent in the legal sphere. Horowitz suggested, for example, that conservative legal organizations pick cases in which they represented underdogs against big institutions associated with the left.

Then came the intellectual entrepreneurs. Aaron Director of the University of Chicago Law School inspired many of the thinkers — like Ronald Coase and Richard Posner — who would create the law and economics movement. This was a body of ideas that moved from the fringes of American legal thought to the very center. This movement was funded by groups like the John M. Olin Foundation, which was willing to invest for the long term and not worry about “metrics” or “measurable outcomes.”

Then came the network entrepreneurs. In 1982, a group of law students including Lee Liberman Otis, David McIntosh and Steven Calabresi founded the Federalist Society, which was fundamentally a debating society. They could have just hosted events with like-minded speakers, but debates were more interesting and attracted better crowds.

The Federalist Society spread to other law schools and beyond pretty quickly. It turned into a friendship community and a professional network, identifying conservative law students who could be promoted to fill clerkships.

As Teles points out, the key features of the Federalist Society were the limits it would put on itself. It did not take stands on specific policy issues. It did not sponsor litigation on behalf of favorite causes. It did not rate judicial nominees the way the American Bar Association did. It did not go in for cheap publicity stunts, like the Dartmouth Review crowd of that era did.

It wielded its immense influence indirectly, by cohering a serious, disciplined community and letting it do the work.

Otis, McIntosh and Calabresi all went to work in the Reagan administration. They are now part of a vast army of conservative legal cadres, several generations deep, working throughout the system or at organizations like the Center for Individual Rights and the Institute for Justice.

Commentor gVOR08 dubs this “a nice capsule history on how to buy the judiciary” but that’s not it at all. Nobody is being “bought” here. It’s simply a successful attempt to build an alternative network from scratch.

The path to the federal bench in the modern era with the elite law schools, with Harvard accounting for by far the most. And prestige in the profession, if not money, comes from academic posts and publications in major law reviews. And, even once on the bench—including the Supreme Court—one’s reputation within the profession came from how one’s opinions were received within the legal academy.

For a variety of reasons, that process made it hard to find qualified conservatives for the court. While there are plenty of conservatives in the law, they’re a minority in the academy. Conservative judges were less likely to get high scores from the ABA. And, to the frustration of Republican Presidents, judges they thought were conservative tended to drift left once on the bench.

The Federalist Society and the broader conservative network solved most of those problems. Conservative law students who had an aptitude for appointed positions in Republican administrations, clerkships with Republican judges and justices, and potential service on the bench themselves could be identified early and nurtured. Rather than be an unwelcome minority within an establishment that leaned to the left, they now had an alternative establishment in which they were at home.

While there’s a strong danger of groupthink in this scenario, there’s nothing nefarious about it. And we’ve seen similar projects on the left in other pursuits. For example, the Center for a New American Security was founded in 2007 by Michèle Flournoy and Kurt Campbell, two highish level national security officials in the Clinton Administration, to nurture talent for a Democratic administration. Scores of CNAS alumni, including Flournoy and Campbell themselves, served in the Obama administration and would certainly have done so in a Hillary Clinton administration. Instead, they’re now a place where Obama formers and Hillary wouldabeens can write op-eds criticizing the Trump administration and hone an alternative policy for the next time Democrats get a turn.

Which brings me to this aside in Brooks’ piece:

Trump bucked the conservative foreign policy establishment and the conservative economic establishment, but he’s given the conservative legal establishment more power than ever before, which is why there are so few never-Trumpers in legal circles.

I can only speculate as to why that is. Hal_10000 suggests that “Picking a judge is hard and there is no way [Trump] would have the patience to do the actual hard work needed to sort out candidates for himself.” My alternative explanation is twofold.

First and most importantly, Trump has very strong, visceral level views on the economy and national security but not on the law. Supreme Court picks, particularly, tend to be about abstract theories of Constitutional and statutory interpretation and all Trump cares about is whether he wins or looses.

Second, there’s simply a bigger gap between Democratic and Republican judicial candidates than between Democratic and Republican national security and economic professionals.  The reason most Republican national security officials I know are #NeverTrump types is that Trump’s views on the post-World War II international system are shockingly and dangerously alien to the bipartisan consensus among professionals in the field. The same is true in terms of trade policy. While there are strong differences of opinion between Democrats and Republicans on these issues, they’re really on emphasis, not the broad strokes of how the game should be played.

The combination of these two things, then, makes it easy for Trump to simply outsource judicial selections. Whatever one thinks of their judicial philosophies, both Neil Gorsuch and Brett Kavanaugh have impressive pedigrees, which we know Trump likes. They win him praise from Republican officials, which we know Trump likes. The base, which like Trump himself, really has no gut instincts on judicial philosophy, hear “young Scalia” and are trained to think that’s a good thing. So, score another for Trump.

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. Trump clearly doesn’t know much about the law, but he knows that Judges and Justices are important to a huge part of his political base. Therefore, it makes sense that he would, in some sense, outsource the search for Judicial candidates, at least at the Supreme Court level, to organizations like The Federalist Society since he knows he’ll get a list of potential nominees that will generally fall within an intellectual orbit that the part of his base that cares most about this area will support. (The process for selection of District Court and Circuit Court Judges seems like it’s somewhat different and largely seems to adhere to the past practice of taking suggestions for candidates from Senators representing the state(s) where the appointments would be based.)

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  2. James Joyner says:

    @Doug Mataconis: Yeah, that makes sense. Lacking a gut instinct, he just defers to the work of others. Which is a good thing in this case.

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  3. @James Joyner:

    One wishes he would do it in other areas (i.e., foreign policy)

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  4. teve tory says:

    Someone should ask trump if he prefers Originalism, Textualism, or a different school of judicial interpretation. 😀

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  5. @teve tory:

    Pretty sure Trump doesn’t understand the difference between Originalism and Textualism. And I’m sure the same thing is true for a majority of his supporters.

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  6. Jay L Gischer says:

    I think that Kavanaugh’s association with Ken Starr’s investigation of the Clinton’s is not an accident. The Federalist Society may have given Trump a list, but the specific choice of Kavanaugh looks like a calculated insult to Democrats – Trump picked the one that would be the most annoying to Democrats. That’s how he works – he’s not winning unless you’re losing.

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  7. Kathy says:

    @Doug Mataconis:

    Trump clearly doesn’t know much about the law,

    He also clearly doesn’t know much about geopolitics, trade and how alliances work, but that hasn’t stopped him from making a hash of trade and international relations, not to mention strengthening enemy powers.

    Let one of his SCOTUS picks rule the “wrong” way on an issue salient to his base, and, should he have a chance to appoint a third justice, he may pick a Fox news host, or someone else really unqualified.

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  8. Andy says:

    @Doug Mataconis:

    One wishes he would do it in other areas (i.e., foreign policy)

    If the FP establishment wasn’t so decisively hawkish and wedded to the notion that the US has a right to insert itself into anything that happens on the planet, I might agree with you.

    I don’t like a lot of Trump’s foreign policy, but the alternative is more of the “warheads on foreheads” FP that the establishment is in thrall to.

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  9. Joe says:

    Excellent article, James. I agree with your (and Brooks’) analysis.

    I would add what I believe is a random confluence that has given a lot of impetus to what these conservatives have done. That is, I doubt many of the architects or proponents of judicial conservatism have a strong anti-abortion bent. I doubt it’s an important issue to them. (Limiting government authority to tax and regulate in other ways is the driver.) It so happens, though, that Constitutional theories that support Roe are at odds with their Orginalism. Overturning Roe is just collateral to them, but it aligned the conservative judicial movement with the anti-abortion base. For that base, Originalism is meaningless and the rest of the conservative principals are only rhetoric, rhetoric they don’t care about.

    There has been, to be sure, a lot of energy spent to bridge these two groups for the political advantage of both. But in truth they are the random overlap of two very different Venn diagram elements.

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  10. CSK says:

    @Jay L Gischer:

    Trump said that once, in one of “his” books, didn’t he? That his idea of a great deal isn’t one in which both parties walk away from the table satisfied. A great deal is one in which he gets everything and the other party is annihilated.

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  11. teve tory says:

    @Doug Mataconis: that’s why it would be fun to ask him. I’m sure he has The Best judicial interpretation. Just really, really very good interpretation. Judges call him and tell him that.

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  12. CSK says:

    @teve tory:

    Excuse me, but that should be “many judges are saying that I have the best judicial interpretation.”

    Please. Get your Trump locutions right.

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  13. teve tory says:

    “The president of the Judge Association called me and told me it was the best interpretation he’d ever seen.”

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  14. Mr. Prosser says:

    @James Joyner: After reading your post and Brooks’s column I am sure you are correct; but, what kept going through my mind while reading both wa this scene from The Good Shepherd. Trigger warning, contains the n-word, hope that doesn’t get me tossed out. https://www.youtube.com/watch?v=jl_9ayxs69A

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  15. CSK says:

    @Kathy:

    Trump screws up foreign policy, trade, and geopolitics because he views them as transactional, and he’s the king of dealmakers, right?

    Appointing judges, on the other hand, means reading a lot of stuff (which he can’t/won’t do), weighing it, and arriving at a decision based on careful study of the material. Trump is not capable of this.

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  16. Kathy says:

    @CSK:

    Arriving at good, or at least reasonable, decisions on trade, geopolitics, etc. also requires reading a lot, taking in advice from specialists, and requires careful study of the matters involved. And we know the Cheeto done’st do any of it.

    On trade we know he’s stuck on the trade balance, which isn’t a good measure necessarily, on very old-fashioned notions of what economic strength is (steel and coal), and general xenophobia.

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  17. James Pearce says:

    This community didn’t just happen; it was self-consciously built.

    The left builds things too.

    Enclaves. They build enclaves.

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  18. HarvardLaw92 says:

    I’ll be perfectly honest – conservative legal theories are something I find obnoxious enough as to be repulsive – to the point where it tends to color my personal views of the people who adhere to them. Contempt is a mild understatement.

    That tends to mean that Federalist Society members probably shouldn’t even bother entertaining an interest in our firm. They’re PNG here, among several other firms at this level – and they’re usually well aware of that.

    While we can freeze them out on this side of the universe, with regard to the Judiciary they have successfully infected (and I use that term deliberately) it to the point where it will take years to dislodge them, if indeed they can be dislodged. The best we can hope for there is the least obnoxious option. I’m not a fan of Kavanaugh, but given the choice between him and a born-again thumping bible freaker like Barrett, it’s not even a choice really. Our task, to be honest, is going to be more one of making sure that people like her – the truly odious ones – are blocked.

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  19. Andre Kenji de Sousa says:

    To be fair, even the former editor of Harvard Law Review did not choose judges alone e by himself.

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  20. gVOR08 says:

    In the big leagues you don’t buy influence with anything so crude as a bribe. You could go to jail for that sort of thing. What you do, if you can afford it, is build up an infrastructure to support and push your point of view: lobbyists, “think” tanks, professional organizations, overt and astroturf activist organizations, academic organizations, friendly media in which you invest and feed stories, and foundations to fund the whole thing. You build a community. You try reach the point that the friends and associates of key people are your friends and associates. You help their friends and family get cushy jobs. You sponsor “educational” events in exotic locations and pay first class for people to attend and speak. You maybe pass on some financial gossip that might be helpful. If you succeed you create a groupthink (e.g. neo-liberalism) that permeates Washington. All perfectly legal, and both sides do it. Republicans are better at it because they have a great deal more money to spend. There is a large Dem infrastructure network, but nothing like the Wingnut Welfare network.

    You spend money and you get what you want, in this case a “conservative” majority on the Supreme Court. I think it’s fair, and accurate, to describe this as buying. If you feel otherwise I think we agree on the process and have a trivial semantic disagreement.

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  21. gVOR08 says:

    @HarvardLaw92: I doubt major law firms make hiring decisions on disagreements over legal theory, although a poor fit based on personality would be legit. Is there a belief that their legal philosophies, or their personalities, affect performance?

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  22. teve tory says:

    @HarvardLaw92: I don’t know much about legal theory. But I used to be a scientist. I know a lot about physics, and some about chemistry, and some about biology. The GOP positions on Global Warming, Creationism, and pollution, are full of shit. Not wrong, not focused on different values, Full. Of. Shit. They’re lies. Exxon knows Global Warming is real. They’ve known it since the 70’s. (scientists first started figuring Global Warming out in 1896.) Their response was to hire the same PR companies the cigarette companies hired to sow FUD so they could keep the Ameros rolling in. The Global Warming stuff is lies told to the ignorant to secure lots of cash from some of the richest companies in the world. The creationism stuff is lies told to secure the votes of uneducated bible thumpers. Bobby Jindal’s got a frickin biology degree from Brown. He knows creationism is gibberish. But he wants votes in Louisiana, so Teach the Controversy! When it comes to scientific topics I can evaluate, the GOP is a bunch of opportunistic people telling lies to the less educated, to get cash and power. So it doesn’t surprise me to hear a lawyer say their legal theories are ugly garbage too.

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  23. Gustopher says:

    @HarvardLaw92: Which conservative legal theories are so repugnant?

    Originalism, on the surface, seems like a reasonable starting place for figuring out what the constitution means.

    I think they deliberately misinterpret things to get to their preferred outcome, but that’s not really a legal theory is it?

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  24. gVOR08 says:

    @Gustopher: I’ve noted before in these threads that the current SCOTUS take on the 2nd is ahistorical nonsense. It’s been arrived at by conservative legal scholars carefully cherry picking for decades.

    But here’s another take. IIRC correctly, in Winner-Take-All-Politics Hacker and Pierson talk about “drift”. Our system creates multiple veto points for any change, it’s much easier to stop legislation than to push it. It’s fairly easy to make nothing happen, as we’ve been seeing for many years.

    Drift maintains the status quo, which is OK with people who are rich and powerful under the status quo. So they’re good with nothing happening. Once upon a time conservative Dems and conservative Rs could get together and pass legislation, often by reaching a deal to allow something liberal Rs and Ds wanted. Now all Rs are conservative Rs representing the .01%. (The few “liberal” or “moderate” Rs are so on social stuff, which the .01% care about only to hold onto the base.) The .01% don’t want much, they already have almost everything. All they want is big tax cuts for themselves, which they’re getting, and not having to clean up their pollution, which Rs are working on. So how do you cut a deal for anything else? They’re happy with drift.

    Even without the cheating, textualism and originalism are inherently biased toward the status quo, toward drift.

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  25. DrDaveT says:

    First and most importantly, Trump has very strong, visceral level views on the economy and national security but not on the law.

    Actually, I think that’s exactly backwards.

    Trump has no personal beliefs about either the economy or national security. He does, on the other hand, have an acute awareness of what plays well with his base in those areas.

    Conversely, he knows exactly what kind of legal philosophy he prefers — namely, conservatism, the belief that the purpose of the law is to protect power and wealth. The Federalist Society is more than willing to provide him a long list of potential justices who share that philosophy, and he knows it.

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  26. HarvardLaw92 says:

    @gVOR08:

    It’s more

    1) the reality that their presence negatively affects business. More of our clients than you’d imagine don’t care for them, and;

    2) the reality that their presence negatively affects the work environment. The short version of that is that we’re a pretty coherent group with respect to legal philosophy, we tend to be more liberal than you’d expect, and as a result they’re pretty roundly hated the second they walk in the door. That hatred doesn’t contain itself well – in fact, from experience, it quickly gets pretty overt. It’s a disruptive factor we just don’t need or want.

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  27. HarvardLaw92 says:

    @Gustopher:

    Which conservative legal theories are so repugnant?

    All of them

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  28. gVOR08 says:

    @HarvardLaw92: Thank you for the informative response.

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  29. James Joyner says:

    @gVOR08:

    Republicans are better at it because they have a great deal more money to spend.

    The four richest people on the planet are Americans active in Democratic politics and causes. Larry Page and Sergey Brin are the next Americans on the list. I don’t think the party is lacking in funds.

    Regardless, building these networks isn’t “buying the judiciary.” Had Hillary Clinton won the election, none of these people would be so much as considered. What the network accomplishes is building a strong bench for Republican presidents to choose from.

    @DrDaveT:

    Trump has no personal beliefs about either the economy or national security. He does, on the other hand, have an acute awareness of what plays well with his base in those areas.

    No, Trump has been pushing protectionist and isolationist views for decades. He thinks America is getting screwed over because we play too nice and our government leadership is stupid and doesn’t know how to make deals. It’s a moronic belief system—a gut instinct, really, more than an ideology—but I think it’s genuine.

    Conversely, he knows exactly what kind of legal philosophy he prefers — namely, conservatism, the belief that the purpose of the law is to protect power and wealth

    There are multiple conservative legal philosophies and that’s not at the center of any of them. But to the extent we have a system of limited government, boxed in by a centuries-old Constitution and the consensus of a rather frustrating system of checks and balances, I agree that it’ll tend to work out that way if we’re not legislating from the bench. But I honestly don’t think Trump has any notion of legal philosophy; he’s strictly about whether he likes the outcome of any given case.

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  30. DrDaveT says:

    There are multiple conservative legal philosophies and that’s not at the center of any of them.

    As a smart guy once said, “By their fruits shall you know them.” I’ve been asking for years for a literate conservative to point me at a conservative philosopher* whose philosophy doesn’t work out to relentless protection of wealth and privilege. The closest anyone has yet come is G. K. Chesterton, which isn’t particularly close.

    At a certain point, “protecting wealth and privilege isn’t an axiom, it’s just a corollary” isn’t a particularly convincing defense.

    *Politicians and journalists do not count as ‘philosophers’ for this exercise. There has to be a coherent system and rationale, not just policy positions.

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