John Bush comes off as a bit of a goober.
He’s compared abortion to slavery and claimed that a passport application form makes parents “subservient to the nanny state.” He casually drops the word “faggot” in speeches about local history. At a Senate hearing, he insisted that he did not intend to endorse birtherism.
But there’s also another side to the man. Bush, who was recently appointed to a federal appeals court, is an honors graduate of Harvard Law School and an accomplished litigator. He rose to a lucrative legal partnership and was widely recognized as one of the best lawyers in Louisville. Bush has sheltered, comically unnuanced political views, but he has all of the ordinary qualifications one would expect to find in a federal judge.
And he’s also far and away one of the least impressive people Donald Trump nominated to an appellate court.
Indeed, the striking thing about Trump’s first slate of U.S. Court of Appeals nominees is how ridiculously smart they are. Six of the eleven lawyers Trump nominated to a federal appeals court clerked for a Supreme Court justice. They include professors at the nation’s top law schools and lawyers with multiple Supreme Court arguments.
After two full terms in office, you can count the number of Obama-appointed court of appeals judges who could plausibly be a Supreme Court nominee on both hands. Trump’s already nominated nearly as many.
If the intelligence of Trump’s judicial nominees were the entire story here, then that would be something to celebrate — a shining light of competence in an administration staffed largely by incompetent goons. But the rest of the story, of course, is that these brilliant lawyers are likely to use their considerable intellects to dismantle much of the progress of the last century.
Will to power
Unlike Judge Bush, most of Trump’s judges have been careful not to advertise their most unflattering views. But a deep dive into their records reveals many dubious viewpoints.
Judge Amul Thapar, now Bush’s colleague on the United States Court of Appeals for the Sixth Circuit, wrote an opinion as a district court judge that would have completely gutted existing limits on campaign donations if its reasoning were adopted by higher courts. Justice Joan Larsen, a Michigan Supreme Court justice and former law clerk to Justice Antonin Scalia, suggested that a president may be allowed to defy the law if he believed that obeying it would “prevent him from protecting the nation.” Judge Ralph Erickson, an Eighth Circuit nominee, halted an Obama-era rule banning discrimination against transgender patients — and then took the highly unusual step of sealing his order so that it could not be read by the public.
And then there is the Supreme Usurper, Neil Gorsuch.
Gorsuch is, at once, one of the judiciary’s brightest lights and one of its cruelest. Eager to dismantle campaign finance restrictions and strip away rights from LGBTQ Americans, Gorsuch brings both a clearer agenda and a greater will to power than any person newly appointed to the Supreme Court in generations. As a lower court judge, Gorsuch sought broad legal immunity for the Christian right and lashed out at Planned Parenthood. He announced an ambitious plan to curb President Obama’s power and transfer it to a Republican-controlled judiciary. His attempt to gut a law protecting children with disabilities was unanimously rejected by his eight new colleagues.
Children subjected to Gorsuch’s rule, Chief Justice John Roberts wrote in an opinion handed down in the middle of Gorsuch’s confirmation hearing, “can hardly be said to have been offered an education at all.”
After taking a seat on the Supreme Court, Gorsuch immediately formed an alliance with Justice Clarence Thomas, long the Court’s most conservative member. Together, and with Justice Samuel Alito often in tow, they’ve called for more concealed firearms and fewer marital rights for same-sex couples. They’ve endorsed Trump’s Muslim ban and all-but-proclaimed their intention to let anti-LGBT business owners ignore civil rights laws — so long as those business owners claim a religious justification for doing so.
Apparently, “religious liberty” is only worth something if you are conservative Christian.
Gorsuch possesses all of the virtues that lead to personal success and none of the virtues that enable compassion.
Indeed, Gorsuch’s only mitigating trait may be that he is so arrogant — so eager to lecture his more experienced colleagues on how to do their jobs in even the most minor cases — that he may lose influence among the Court’s more moderate conservatives. As Linda Greenhouse writes of Gorsuch, “I could see him as a natural ally who would bolster the chief justice’s most conservative instincts. It now seems just as likely that Neil Gorsuch’s main effect on John Roberts will be to get on his nerves.”
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.
ACS’s 2010 convention, for example, was promoted as the first time Dawn Johnsen, a former ACS board member Obama unsuccessfully nominated to lead the Justice Department’s Office of Legal Counsel, would speak publicly after she withdrew her nomination. “Being willing to stand on principle and fight for liberties that were at times controversial has not hurt me professionally,” Johnsen insisted in her speech, before listing several of her many impressive professional accomplishments.
It was a good speech. But it didn’t change the fact that Johnsen got locked out of the halls of power due to some combination of her opposition to torture and her strong support for abortion rights.
The best minds of the left give inspiring speeches, while the greatest intellects of the right wear black robes.
Two years later, it was Goodwin Liu’s turn to give a similar speech. Liu, another one-time ACS board member and former clerk to Justice Ruth Bader Ginsburg, lost his chance to serve on the Ninth Circuit due to a filibuster. And so he found himself at ACS, telling the gathered liberal attorneys to keep their chins up. “As my friend Dawn Johnsen, who is here tonight, said — in fact at this very convention two years ago — ‘no one goes to his grave seeking an epitaph that reads ‘he kept his options open.’’” (In fairness, Liu’s story has a happy ending. He’s now a justice on the California Supreme Court.)
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.”
To be fair, while Obama largely did not fill the bench with liberal heroes, he did achieve other goals. President Obama, ACS’ Director of Strategic Engagement Lena Zwarensteyn tells me over the phone, consulted with bar associations, home-state senators, and affinity groups in selecting judges — including groups like ACS. This process produced judges with much more racial, gender, and sexual orientation diversity than Trump’s nominees. It also allowed individuals with “untraditional paths,” such as public defenders and ACLU attorneys, to rise to the bench (though it is worth noting that Obama also appointed plenty of prosecutors and large law firm partners to the bench as well).
Zwarensteyn also acknowledged that no organization plays the special role for Democrats that the Federalist Society plays for Republicans, and she argues that this is a good thing. “When you have one or two people really driving the process,” she tells me, “then there are fewer filters or people to say ‘are you sure?'” Such a process “does not necessarily promote representation or the people who will be the best judges.”
Whatever the virtues of Obama’s selection process, however, Republicans met Obama’s initial reluctance to pick a fight over judges with scorched earth tactics. The recently departed president did appoint several people to the federal appellate bench who match Trump’s nominees in both stature and intellect after Senate Democrats eliminated filibusters for most judicial nominees in late 2013. Many of Obama’s most outstanding appointments — Pattie Millet, Nina Pillard, David Barron, and Pam Harris, among others — joined the bench during the brief period between the so-called “nuclear option” and January of 2015, when Sen. Mitch McConnell (R-KY) took over as majority leader.
But the nuclear option only happened because of the extraordinary tactics McConnell’s caucus was willing to deploy in order to maintain control of the judiciary. Senate Republicans decided to filibuster literally anyone Obama named to the powerful D.C. Circuit. Sen. John Cornyn (R-TX), the #2 Republican in the Senate, admitted that they did so because they did not want Democrats to “switch the majority” on this court. Faced with such massive resistance, Senate Democrats finally decided that nuking the filibuster was the least worst option.
Almost immediately after Republicans gained a majority in the Senate, moreover, judicial confirmations all but collapsed. Obama appointed only two appeals court judges during his final two years as president. And, of course, there was that whole thing with Merrick Garland.
All of this drama sends a very clear message to promising young lawyers — you have a wealth of career options if you join the Federalist Society, but you should get used to disappointment if you play for the other team. As Lithwick worried in 2010, what will happen to “the next generation of liberal law students, who continue to hear the message that their heroes are presumptively ineligible for a seat at the high court, whereas the brightest lights of the Federalist Society. . . are either already on the bench or will be seen as legitimate candidates the next time a Republican is in the White House?”
The next generation
With an organized legal movement as its shock troops and a president willing to take direction from the Federalist Society, the judiciary’s right flank has ambitious plans for the future. Liberal judges, meanwhile, are stuck in a rearguard position.
As Joshua Matz, a former law clerk to Justice Anthony Kennedy and co-author of Uncertain Justice: The Roberts Court and the Constitution, told me over email, “Broadly speaking, judges appointed by Republican presidents share a markedly robust and systematic conception of the general direction in which our law should evolve.” Meanwhile, “judges appointed by Democratic presidents are often more inclined toward preserving the legal status quo and adhering to established common law approaches.”
In fairness, there’s a lot to be said for the status quo, at least compared to nearly every other period in American judicial history. That’s the theme of my own book, Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, which presents the Supreme Court as a largely malign force. At the peak of its power and arrogance, the Court struck down child labor laws, minimum wage laws, and laws enabling workers to organize. Men like Thomas and Gorsuch now hope to revive many of the long-dead doctrines that animated these decisions — or, at least, to achieve similar ends with new doctrines — while justices like Kagan struggle to hold this rising tide of conservatism at bay.
It must be an exciting time to be a young member of the Federalist Society, to see your heroes exalted, and to believe that you stand with the vanguard of a transformative movement. Meanwhile, the depressing age Lithwick predicted has arrived for liberals. Our armies are scattered and chaotic. Our greatest generals banished from the field.
We did not get to this point by accident. We got here because men like Leonard Leo spent decades identifying their champions. We got here because conservatives understood that they could demoralize liberals by blocking a handful of Obama’s symbolically important nominees. We got here because Mitch McConnell had the audacity to steal a seat on the Supreme Court and give it to a rigid ideologue. And we got here because the nation largely shrugged at this tactic.
But we also got here because liberals were out-hustled.
Law students, Justice Scalia explained in a 2013 interview, “will read dissents that are breezy and have some thrust to them” and “that’s who I write for.” It’s why he wrote dissenting opinions that were punchy and combative and often a bit sarcastic. Scalia knew that, if he could convince the students who are still reading casebooks today that he was right all along, some of them could go on to become justices and they hand him a victory in the end.
The conservative firebrand played the long game. While Scalia’s liberal colleagues enjoyed their victory and moved on to the next case, Scalia brooded on how he could he could still eek out a victory twenty years later.
Many of those one-time law students will soon be judges, appointed by a doltish president who cares little about the law and who knows even less. But make no mistake, Trump’s judges are not Trumpian goons. They are some of the brightest minds of their generation. And they are a project 30 years in the making.