Kavanaugh is the product of a community. He is the product of a conservative legal infrastructure that develops ideas, recruits talent, links rising stars, nurtures genius, molds and launches judicial nominees. It almost doesn’t matter which Republican is president. The conservative legal infrastructure is the entity driving the whole project. It almost doesn’t even matter if Kavanaugh is confirmed or shot down; there are dozens more who can fill the vacancy, just as smart and just as conservative.
This community didn’t just happen; it was self-consciously built. If you want to understand how to permanently change the political landscape, it’s a good idea to study and be inspired how it was done.
Back in the 1970s, the legal establishment was liberal. Yale Law School was the dynamic center of liberal legal thinking. Lawyers who had begun their careers during the New Deal were at the height of their power and prestige. The Ford Foundation funded a series of legal aid organizations to advance liberal causes and to dominate the law schools.
.. Business groups funded a series of conservative public interest law firms. But the business groups had no intellectual heft, they were opportunistic and they had zero moral appeal.
.. First came the critique. In 1980, Michael Horowitz wrote a seminal report for the Sarah Scaife Foundation, explaining why conservatives were impotent in the legal sphere. Horowitz suggested, for example, that conservative legal organizations pick cases in which they represented underdogs against big institutions associated with the left.
.. Then came the intellectual entrepreneurs. Aaron Director of the University of Chicago Law School inspired many of the thinkers — like Ronald Coase and Richard Posner — who would create the law and economics movement.
.. This movement was funded by groups like the John M. Olin Foundation, which was willing to invest for the long term and not worry about “metrics” or “measurable outcomes.”
.. Then came the network entrepreneurs. In 1982, a group of law students including Lee Liberman Otis, David McIntosh and Steven Calabresi founded the Federalist Society, which was fundamentally a debating society.
.. The Federalist Society spread to other law schools and beyond pretty quickly. It turned into a friendship community and a professional network, identifying conservative law students who could be promoted to fill clerkships.
.. the key features of the Federalist Society were the limits it would put on itself. It did not take stands on specific policy issues. It did not sponsor litigation on behalf of favorite causes. It did not rate judicial nominees the way the American Bar Association did.
.. Otis, McIntosh and Calabresi all went to work in the Reagan administration. They are now part of a vast army of conservative legal cadres, several generations deep, working throughout the system or at organizations like the Center for Individual Rights and the Institute for Justice.
.. Trump bucked the conservative foreign policy establishment and the conservative economic establishment, but he’s given the conservative legal establishment more power than ever before, which is why there are so few never-Trumpers in legal circles.
.. The members often break down on libertarian versus conservative lines, or, as we saw in the behind the scenes jockeying recently, between social conservatives (for Amy Coney Barrett) and establishment conservatives (for Brett Kavanaugh).
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One proposal would limit justices to 18-year terms, which would create an opening on the court every two years, and reduce some of the political gamesmanship that surrounds open seats today. But any change to the justices’ tenure would require a constitutional amendment, and so is a longer debate for another day.
.. During the 2016 campaign, Mr. Trump publicized a list of possible Supreme Court nominees preapproved by the Federalist Society and the Heritage Foundation, another conservative group. It was scrubbed of any squishes along the lines of David Souter, Anthony Kennedy or even Chief Justice Roberts, all of whom have been deemed insufficiently committed to the cause for failing to vote in lock step with the radical right’s agenda. (Judge Kavanaugh was left off the original list but was added later.)The Federalist Society claims to value the so-called strict construction of the Constitution, but this supposedly neutral mode of constitutional interpretation lines up suspiciously well with Republican policy preferences — say, gutting laws that protect voting rights, or opening the floodgates to unlimited political spending, or undermining women’s reproductive freedom, or destroying public-sector labor unions’ ability to stand up for the interests of workers.
.. Senate Democrats need to use the confirmation process to explain to Americans how their Constitution is about to be hijacked by a small group of conservative radicals well funded by ideological and corporate interests
.. We’re witnessing right now a global movement against the idea of liberal democracy and, in places like Hungary and Poland, its grounding in an independent judiciary. Mr. Trump and Senate Republicans appear happy to ride this wave to unlimited power. They will almost certainly win this latest battle, but it’s a victory that will come at great cost to the nation, and to the court’s remaining legitimacy.
.. Americans who care about the court’s future and its role in the American system of government need to turn to the political process to restore the protections the new majority will take away, and to create an environment where radical judges can’t be nominated or confirmed.
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Francisco was a partner at Jones Day, which Bloomberg Businessweek has called“Trump’s favorite law firm.” The outlet reported in March that at least 14 lawyers from the firm had joined the Trump administration or had been nominated to do so, including Don McGahn, the White House counsel.
.. lawyers from “Trump’s favorite” firm contributed only $7,422 to Trump’s campaign, compared to $267,899 to Hillary Clinton’s.
.. Francisco also is an expert at the Federalist Society, a group of conservative and libertarians in the legal world. The executive vice president, Leonard Leo, is said to have secured the confirmation of Neil Gorsuch for the Supreme Court. Gorsuch and FBI Director Christopher Wray also are listed as experts there. Francisco has donated thousands of dollars to federal election candidates, all Republicans, though not to Trump.
.. Ted Cruz, who once worked with Francisco at the law firm Cooper & Kirk. “He’s a brilliant lawyer & a principled conservative.”
Neil Gorsuch Speech at Trump Hotel Raises Ethical Questions
Justice Neil M. Gorsuch, President Trump’s Supreme Court appointee, is scheduled to address a conservative group at the Trump International Hotel in Washington next month, less than two weeks before the court is set to hear arguments on Mr. Trump’s travel ban.
Stephen Gillers, an expert on legal ethics at New York University, questioned the justice’s decision to speak at the hotel, which is at issue in lower-court cases challenging the constitutionality of payments to Mr. Trump’s companies.
.. “It’s a terrible signal for this group to be holding their meeting at the Trump International Hotel and for a Supreme Court justice to legitimate it by attending,” she said. “It just violates basic ethical principles about conflicts of interest.”
.. Appearances by justices before groups with political leanings are not unusual. Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor, all members of the court’s liberal wing, have spoken before the American Constitution Society, a liberal group.
.. On the other hand, Justices Clarence Thomas and Samuel A. Alito Jr., members of the court’s conservative wing, have addressed the Federalist Society, a conservative group.
There is very little crossover. “I could find no record of a sitting liberal Supreme Court justice addressing the Federalist Society annual meeting or a sitting conservative Supreme Court justice addressing the American Constitution Society annual meeting,” Richard L. Hasen, a law professor at the University of California, Irvine, wrote in a 2016 study.