Why so much trouble nominating reliably conservative Justices?

Today, Yoram Hozany, an Israeli philosopher, tweeted:

I wonder: Has there ever been an ideological movement this incompetent? They only had one job to do: Distinguish conservative lawyers from liberal lawyers.

They formulate lists of approved individuals and everyone murmurs that they’ve been vetted. Then all sorts of distinguished persons publicly pronounce in chorus that the candidate is brilliant and the nomination fine.

What criteria are involved in all this?

I understand his disgust. Democrats bat 1.000 when it comes to nominating reliable left-liberals to the Supreme Court. Republicans bat around .500 in nominating reliable conservatives.

But it’s not as easy for conservatives as it looks. To show why, I’ll tell a story I once heard Jonah Goldberg recount.

According to Goldberg, a publisher wanted to produce a book with essays by five leading liberals and five leading conservatives. The authors could basically write whatever they wanted to.

The five liberals all wrote about what Democrats should do to win the next election. The five conservatives produced philosophical tracts representing five different branches of American conservative thought.

American conservatism has multiple branches, and American conservative thinkers tend to be individualists and often quirky. This is true within the conservative legal movement.

John Roberts’ calling card was judicial modesty — the notion that judges shouldn’t be activists, but rather should grant lots of deference to the elected branches. At one point, this was received wisdom among many, probably most, conservatives. Today, not so much. But Roberts was nominated in 2005.

Neil Gorsuch’s calling card is his critique of the administrative state. It’s an important critique, but doesn’t guarantee an across-the-board conservatism. Nor, we now know, does his stated commitment to textualism guarantee a solid, non-quirky textualism of Justice Scalia’s kind.

There’s also the fact that presidents get the final say. They typically farm out the job of compiling the Supreme Court short list, but then will pick the nominee from that list.

In doing so, they probably will be influenced by their intuition and by the personalities of the candidates. It’s easy to see how Roberts — young, vigorous, and charming — gained President Bush’s favor. According to reports I saw at the time, Judge Wilkinson III, who had a much longer judicial track record than Roberts, didn’t impress Bush much. An older man, Wilkinson supposedly didn’t come across as energetic enough. If I recall correctly, Bush reportedly urged him to exercise more.

In Donald Trump’s case, Judge Amy Coney Barrett, a favorite of many conservatives, reportedly didn’t make a winning impression with the president. I don’t know why, but the explanation likely had little if anything to do with factors relevant to how she would have decided the Title VII gay rights case, or any other particular matter.

I assume that Democratic presidents also base their Supreme Court selection decisions in part on intuition and personality. But this make no difference because virtually anyone presented to the president can be counted on to toe the left-liberal line on the bench.

This is not to say that left-liberal legal thinking is monolithic. For all I know, there may be a dozen different schools of left-liberal thought swirling around in academia. In private, Justices Breyer and Kagan may be as intellectually curious as any of their conservative brethren or, indeed, Isaiah Berlin.

It doesn’t matter. Left-liberal nominees know their job — to reach the left-liberal result in every case. They are part of a movement and, as such, are prepared to cast off quirks, if any, and advance the cause.

It’s ironic, then, that the mainstream media writes obsessively about a supposed conservative legal movement, and never about a liberal one. The villain is always the Federalist Society.

But the Federalist Society is not a movement. Its members represent a wide range of disparate conservative thought, and its events, if they consist of more than one speaker, almost always include liberals. In a typical event, there’s one speaker with somewhat traditional conservative views, one libertarian, and one liberal.

I digress, though. The point is that there are major differences between the conservative legal movement (if it’s accurate even to speak of one) and the left-liberal one. These differences help explain why Democrats do a so much better job than Republicans of getting their kind of judges and Justices on the courts.

Nonetheless, Hazony isn’t wrong to question our selection process. In my view, the herd mentality he ridicules isn’t entirely a fiction.

Recall the case of Neomi Rao. She is the law professor nominated by Trump to the D.C Circuit and confirmed by the Senate. Like Gorsuch, Rao’s calling card is her critique of the administrative state.

In evaluating this nomination, Sen. Josh Hawley did exactly what he should have done. He dove into Rao’s scholarly writings, detected a potential problem, and raised it. To Hawley, some of Rao’s work suggested she might be too comfortable with the concept of “substantive due process” — a theory that can be used to protect rights, such as the right to an abortion, that aren’t mentioned in the Constitution.

At the time, I wrote that Hawley “was simply performing his due diligence so that conservatives won’t get burned, as has happened so often in the past, by a judicial nominee who falls far short of the expectations of the conservative Senators who backed him.” (Emphasis added)

Yet, as I recounted here, the Wall Street Journal belittled Sen. Hawley for raising this concern, and even questioned his motives. One leader in the push to confirm President Trump’s nominees compared Hawley to the women he defeated, Clare McCaskill, as if raising the question of whether one nominee might be too sympathetic to judicial activism is the same thing as serially voting against conservative nominees.

Those who aspire to important spots in the judiciary are ambitious and often cunning people. If they are generally conservative but hold some important views that might trouble conservatives, they aren’t likely to advertise them. But these views might be detectable somewhere deep in their writings. If someone serious thinks he has detected a problem, he should be heard, not steamrolled.

In the case of Hawley, Rao and the White House were able, after false starts, to persuade the Senator that the nominee is fine on the issue[s] he pinpointed. The Senate confirmed her. We can, with reason, hope for the best.

It’s important, though, that we not let “confirm them” mania stand in the way of truly careful vetting, and that we take seriously questions raised about nominees and potential nominees by thoughtful conservatives. Let’s keep in mind that the author of that excellent dissent in yesterday’s Title VII gay rights case, Justice Alito, was nominated only after conservatives raised major concerns about the original nominee, Harriet Miers.

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