As recently as two years ago, there was a very clear playbook for federal appeals court judges who hoped to someday sit on the Supreme Court. Keep your head down. Build prestige in the subtle ways judges gain status within the elite ranks of the legal profession. And whatever you do, don’t take positions on issues that inflame political debate about the Supreme Court.
There’s at least one exception to this rule. Justice Samuel Alito had a very clear anti-abortion record as a lower court judge. But this exception is easy to explain. Alito was nominated largely to reassure conservatives who rebelled at President George W. Bush’s initial decision to name the enigmatic Harriet Miers to the Supreme Court.
Until very recently, most papable judges hoping to someday become a justice tried to steer clear of public controversy. Let your political allies privately reassure the White House of your conservative views, but by all means don’t give the opposition party evidence it can use against you in your confirmation hearing.
All of that changed with Neil Gorsuch.
The Gorsuch playbook
In his final years as a federal appellate judge, Gorsuch threw out the old rule book. He wrote completely gratuitous opinions — in one case, Gorsuch literally attached a separate concurring opinion to one of his own majority opinions — announcing some of his right-wing views. For the most part, these opinions focused on Gorsuch’s desire to weaken, if not strip, federal agencies’ power to regulate industry, a top conservative priority touted by the Federalist Society.
And it worked! As David Kaplan reports in his book, The Most Dangerous Branch: Inside the Supreme Court’s Assault on the Constitution, the opinion Gorsuch attached to his own opinion “proved decisive in clinching” the Trump White House’s decision to name Gorsuch to the Supreme Court. (That opinion criticized “Chevron deference,” a doctrine requiring courts to defer to many decisions made by federal regulatory agencies.)
After Gorsuch successfully campaigned for a promotion by announcing his agenda, other papable judges took notice, and they altered their own behavior to match his. Judge Raymond Kethledge, one of a handful of judges Donald Trump interviewed for the current Supreme Court vacancy, raced to the University of Michigan to deliver a lecture announcing that he also opposes Chevron. The eventual nominee, meanwhile, addressed a different problem.
Judge Brett Kavanaugh’s record leaves little doubt that he would join Gorsuch in dismantling much of the administrative state — although Kavanaugh may use more subtle methods than the blunderbuss Gorsuch deploys against doctrines he disagrees with. Until last year, however, Kavanaugh had no public record on Roe v. Wade.
In the pre-Gorsuch world, that would have been a check mark in his favor. It would have meant that he could skate through his confirmation hearing denying that he’s made up his mind to kill Roe, and no one on the Democratic side of the room could have pointed to evidence in his record that refutes this claim.
After Gorsuch, however, Kavanaugh had to worry more about convincing the Trump White House to make him the nominee than he did about what happened in his hearing. Judge Kavanaugh’s hopes of being nominated could fade quickly if other nominees outmaneuvered him to his right. If Kavanaugh didn’t have a clear record on abortion, the nomination might have gone to Judge Amy Coney Barrett, whose opposition to Roe is fairly clear.
So Kavanaugh twice went on record as an abortion opponent in 2017. Prior to Gorsuch’s rewriting the rules, this is something that would have been utter lunacy for a judge hoping to become a justice to do.
The first such occasion was a speech he gave to the conservative American Enterprise Institute, in which he criticized the Supreme Court’s opinion in Roe and praised Justice William Rehnquist’s dissent. The second was a judicial opinion, in Garza v. Hargan, where Kavanaugh argued that the Trump administration could literally hold an undocumented woman prisoner, at least temporarily, in order to prevent her from having an abortion.
In fairness, Kavanaugh was randomly assigned to a three-judge panel hearing the Garza case and couldn’t have avoided taking some position on this matter. Nevertheless, compare the way he handled Garza to the way he handled an equally fraught case in 2011.
Seven-Sky v. Holder was one of the many cases claiming that the Affordable Care Act is unconstitutional. The two judges with whom Kavanaugh heard this case voted to uphold the law. For his part, however, Kavanaugh kept his cards close to the chest, claiming simply that his court should not even decide the case because it lacked jurisdiction.
A unanimous Supreme Court eventually rejected Kavanaugh’s jurisdictional argument.
Judge Kavanaugh, in other words, knows how to make inconvenient cases go away. In 2011, when judges seeking promotion tried to avoid hot button issues, he successfully did the same in Seven-Sky. In 2017, after Gorsuch rewrote the judicial nominations playbook, Kavanaugh seized the opportunity to prove his anti-abortion bona fides.
Yet, while Kavanaugh’s decision to out himself as anti-Roe may have helped secure his nomination, it placed him in a very awkward position during his hearing. After Trump nominated Kavanaugh, the judge repeatedly claimed that Roe is “settled law” or “settled as precedent of the Supreme Court.”
It is a common tactic for judges who oppose Roe to use this sort of misleading language to describe the opinion at their confirmation hearing. Chief Justice John Roberts, for example, claimed that Roe is “settled as a precedent of the court.” Yet he’s been an consistently anti-abortion vote on the Supreme Court.
Had Kavanuagh followed the pre-Gorsuch playbook, his stated view that Roe is “settled” wouldn’t exactly be believable, but it wouldn’t be an obvious effort to mislead the Senate either. Instead, by staking out a position on Roe in 2017, Kavanaugh stripped himself of credibility to claim that Roe is somehow “settled.” That, and a series of other questionable statements by Kavanaugh, created the impression that he was, at best, evasive at his confirmation hearing — and, at worst, actively deceptive.
Kavanaugh’s credibility, or lack thereof, may now determine whether or not he is confirmed to the Supreme Court. On Sunday, psychology professor Christine Blasey Ford came forward with an accusation that Kavanaugh attempted to rape her when they were both in high school. The Senate Judiciary Committee plans to hold a hearing on these allegations this Monday, where Kavanuagh and Blasey are currently expected to be the only witnesses (although Blasey has not yet accepted this invitation to testify).
Judge Kavanaugh’s chances of becoming Justice Kavanaugh, in other words, are likely to hinge on whether a majority of the Senate finds his testimony credible. He would be in a much stronger position if he had not undermined his credibility in his first hearing — that is, if he hadn’t tried to present Roe as “settled” after going out of his way to reassure the Trump White House that he is, indeed, a vote against Roe.
The Gorsuch playbook, in other words, may be a good way to catch the eye of a White House eager to place hardline conservatives on the Supreme Court. And it is an equally effective way to reassure conservative activists who are still paranoid about President George H.W. Bush’s decision to secure a spot on that Court for the moderate liberal Justice David Souter. But it is a terrible way for a nominee to appear honest and trustworthy if they insist on claiming that opinions they have already criticized are “settled law.”