I want to follow up on Scott’s post about Republican hypocrisy regarding courts and judges. I’m writing this from something of an insider perspective, having spent almost all my life in legal academia since the mid-1980s.
One of my more vivid memories of my first days in law school in Ann Arbor in the fall of 1986 was of a large display on one of the student organization bulletin boards for something called The Federalist Society, that featured a bunch of silhouettes of James Madison. The following spring, a fellow student tried hard over the course of a lunch to recruit me to join, in a way that reminded me uncomfortably of a similar attempt a few years earlier by a friend to get me to consider the remarkable insights available in a book called Dianetics.
A key to understanding how the right wing legal racket works is that very few law students, especially at elite schools, have any natural attraction to the reactionary politics of the Federalist Society. Nevertheless, quite a few who don’t are willing to enter into the ideological equivalent of a lavender marriage with it, because the laws of supply and demand create an extremely obvious play for amoral strivers, who, you will be surprised to learn, are not in short supply in this particular milieu.
If 55.81% of the most elite slots in the legal world are going to reactionaries, and 7.43% of law students at elite schools are naturally sympathetic to reactionary views that no person who is both reasonably intelligent and morally decent accepts, then you’re going to get a whole bunch of convenient conversion experiences.
This of course creates a well-warranted suspicion among the core of True Believers that many of their compatriots in the Movement cannot be trusted, and that they will go all squishy when it proves convenient for them to do so. Hence the constant demands for litmus tests of various kinds, the wailing over the how John Roberts was always a closeted liberal, etc.
But the the True Believers do exist, in part because they do occur in nature, and in part because we all tend to become what we pretend to be. (I’d bet a lot of fake Internet money that Ted Cruz, for instance, started out as a smarmy little bastard with no real commitment to any cult other than that of success, but that he has been high on his own supply for long enough now that he’s a sincere — or “sincere” — believer).
Here is what the True Believers believe:
Liberal judges legislate from the bench, while conservative judges follow the law. I swear on the souls of my grandchildren that they actually believe this. They believe this in the way that I believe there’s a city in Australia called Melbourne, that is, as an unquestionable self-evident empirical fact.
Now the smarter ones will admit that this isn’t always 100% the case, because of the No True Conservative phenomenon, but they still present the basic proposition as self-evident. They reason they can do this is that, for Federalist Society types, their ideological commitments in matters of legal interpretation aren’t ideological commitments: they’re simply a statement of what law is. I mean this absolutely literally. This is what they believe.
For example, originalism isn’t the correct approach to constitutional and statutory interpretation because it gets you desirable results, politically speaking: it’s the correct approach for the same reason you get three strikes in baseball, not two or four (five is right out). Those are just the rules. That’s what Roberts meant when he said it’s all about calling balls and strikes.
Again, I must insist that they really and truly believe this, and that even getting them to understand why this position is not self-evidently correct is almost impossible: it’s like arguing with Scientologist about Xenu, or a Christian evangelical about the literal inerrancy of the Bible.
If you accept this basic insight, everything else flows naturally from it. To reference Scott’s post, the Federalist Society’s function is is not to ensure that judicial nominees are ideologically orthodox, but rather to ensure they follow the law. Senate Republicans should preemptively refuse to consider any SCOTUS nominee from a Democrat president, because the Democrat party obviously doesn’t respect the law, since it nominates judges who legislate from the bench, rather than following the law.
Judicial opinions like Shelby County or Bush v. Gore may seem unprincipled, but that is only because of a failure to grasp that they follow a deeper principle, which is that at all costs the legal system must remain in the hands of people who follow the law, even if at a superficial level this would seem to require sometimes making decisions that break the law (A Jesuit education comes in handy here).
This is how it all works. This is why Amy Coney Barrett will say the things she says when a pro forma hearing is held on her nomination to the Supreme Court. And I only am escaped alone to tell thee.