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The Leo Court


To expand on my earlier point that Roe isn’t going to be saved because conservatives have created a movement to ensure that this won’t happen, I have a piece up at NBC News about the symbiosis between conservative legal activists, Republican voters, Republicans in Congress, and Donald Trump:

Trump, of course, has generally been impulsive on policy and independent from the Republican leadership on a variety of issues from sanctions on Russia to trade policy. But on judges he has been the ultimate party man, effectively delegating his choice to conservative legal activists. His willing acquiescence to their wishes on what could arguably be one of the few lasting achievements of his presidency reflects how important control of the courts is to both Republican public officials and voters.

Polls have shown that power over the Supreme Court nominees was critical to getting Republicans who had misgivings about Trump’s fitness for office to the polls — he issued two lists of conservative judges pleasing to activists over the course of the 2016 campaign — and they’ve also been an important reason for Republican members of Congress to refuse to provide meaningful oversight on an unprecedentedly corrupt president. Trump’s selection of orthodox conservatives to the courts reflects his understanding of this dynamic.


And he is not only of a very conservative legal bent, he has taken a view of executive power that Trump is sure to find pleasing. In a 2012 law review article, he suggested that Congress should consider a law forbidding the president not merely from prosecution but even from being investigated while in office. “Criminal investigations take the President’s focus away from his or her responsibilities to the people,” Kavanaugh argued. “And a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President.”

And yet, Kavanaugh is not likely to have a Supreme Court voting record meaningfully different from the other top contenders, such as Amy Coney Barrett, Thomas Hardiman, Raymond Kethledge. Trump had a deep group of reliably conservative judges to choose from — and that was no accident. It’s the product of decades of conservative activism.

The most important player is the conservative legal movement is the Federalist Society, created in 1982 to counter the perceived liberal bias of law schools. It has become a well-funded and hugely influential organization, transforming itself into the go-to group that conservative would-be judges need by their side. Important scholarly books by political scientists Amanda Hollis-Brusky and Steven Teles have shown how the organization influenced a generation of conservative judges and legal scholars, and provides the information Republican presidents now rely on to pick federal judges.

The template for a contemporary Federalist Society-approved Republican Supreme Court appointment is George W. Bush nominee Samuel Alito. He wasn’t prone to flashy rhetoric or to making off-the-wall arguments that could have been used against him in a confirmation hearing, as they were with scuttled nominee Robert Bork. He just happened to be an almost perfectly reliable vote for the most conservative option plausibly available to him as an appellate judge. That history has translated to a similar voting record on the Supreme Court — which is precisely what conservative activists are looking for.


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