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Asymmetric Polarization and the Courts


Really good piece by Ian Milhiser:

Gorsuch possesses all of the virtues that lead to personal success and none of the virtues that enable compassion. Clever and cocksure. Diligent and immune to self-reflection. His ascension to the Supreme Court represents a triumph of the Republican will. And there are many more of him waiting in the wings.

The reason the orange goon in the Oval Office is able to find such extraordinarily talented individuals to fill the federal bench is because he’s not really the one choosing them. As a candidate, Trump openly admitted that he worked with two conservative groups — the Heritage Foundation and the Federalist Society — to come up with lists of potential Supreme Court nominees that would be acceptable to conservatives. Neil Gorsuch was on one of those lists. So were Thapar and Larsen, along with two other people Trump nominated to federal appeals courts.

Indeed, as Sen. Dick Durbin (D-IL) noted at Judge Bush’s confirmation hearing, affiliation with the Federalist Society “turns out to be a ticket that needs to be punched” to get on “the Supreme Court, and the highest courts in our land.”

Judge Kevin Newsom, who the Senate confirmed to the Eleventh Circuit last Tuesday, is a member of the Federalist Society. Bush led one of the Federalist Society’s lawyer chapters. Three of Trumps’ future court of appeals nominees spoke at the Federalist Society’s annual lawyer’s convention in 2016, as did several individuals on his list of potential Supreme Court nominees. The Federalist Society’s executive vice president, Leonard Leo, served as “Trump’s subcontractor on the selection of Gorsuch,” and Leo also played a major role in selecting President George W. Bush’s Supreme Court appointees. As Jeffrey Toobin writes, “Leo is responsible, to a considerable extent, for a third of the Supreme Court.”

There is nothing comparable to the Federalist Society on the left. That is, there is no group which has the same ability to identify the best and the brightest lights in the legal profession, screen them for ideological purity, and that also has the influence necessary to fill the bench with their people.

To be clear, there is a liberal group, the American Constitution Society, which strives to play a similar role. ACS, which I worked for during part of the Bush administration, was founded as an explicit counterpart to the Federalist Society. Yet ACS members, including myself, spent much of the Obama years watching their heroes get crucified by Senate Republicans. ACS itself became a place to hear pep talks from slain martyrs.


Indeed, delivering a learn-from-my-example-young-ones-even-though-I‘m-locked-out-of-top-jobs speech has become a kind of badge of honor reserved for many of the leading lights of the progressive legal community. The best example of this genre was offered by Pam Karlan, a Stanford law professor, voting rights expert, and current ACS board member that Obama considered for a judgeship but ultimately did not nominate.

“Would I like to be on the Supreme Court? You bet I would!” a defiant Karlan told Stanford law’s graduating class in 2009. “But not enough to have trimmed my sails for half a lifetime.”

The best minds of the left give inspiring speeches, while the greatest intellects of the right wear black robes.

In case it is unclear, little of this is ACS’ fault. Much of it is Barack Obama’s fault. President Obama was fully aware that nominating proud, brilliant, outspoken liberals was a great way to get drawn into a filibuster fight. And he often decided that such fights weren’t worth it. As Dahlia Lithwick wrote while Obama was considering who he should nominate to the Supreme Court seat that eventually went to Justice Elena Kagan, “the hardest question I keep getting from liberal law students—and the most painful to answer—is why so few of their heroes are in serious consideration.”

It’s implicit in Ian’s point about how Obama’s nominations improved after Democrats finally blew up the filibuster for judicial nominations, but we shouldn’t just blame Obama for the fact that intelligent left-liberals like Pam Karlan are considered beyond the pale while Republicans pack the federal courts with Alitos and Gorsuches — Senate traditionalists (most notably Pat Leahy) engaged in a lot of unreciprocated power-sharing with Republicans, most ridiculously by restoring the blue slip rule that will once again be abandoned.

Still, Democrats making the Supreme Court a major issue during elections would be BLACKMAIL.

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