Obama and the conservative legal movement
That a president would search for judges who are ideological allies is unsurprising, to say the least. Certainly we are used to the idea that this is how presidents behave when it comes toƒ their Supreme Court nominees. President Bush vetted his nominees to the federal courts of appeals “to find those who shared [his] philosophy,” according to an October New York Times cover story. But it would be simplistic to conclude that only top-down presidential nominating power can alter the judiciary, or that the president’s discretion is unlimited or independent of other influences.
In fact, President Bush was the beneficiary of a conservative legal movement decades in the making. The liberalism that pervaded the legal academy and profession in the 1960s and 1970s has been counterbalanced by a conservative intellectual and institutional support structure, one dedicated to sowing fertile ground for a generation of judges that has, under Bush, come of age. Groups like the Federalist Society, a mass network of conservative lawyers to which Chief Justice John Roberts, Justice Samuel Alito, and many of Bush’s appeals court appointees belong, have enabled President Bush to be more effective than his Republican predecessors in appointing ideological conservatives to the federal bench. But this conservative success story may now prompt a liberal backlash: the judiciary, including the lower courts, has been heavily politicized, and the new Democratic president and Senate will have an opportunity to remake much of it.
Swimming in the Mainstream
Perhaps the most glaring problem facing conservative legal activists in the ‘60s and ‘70s was, as Steven Teles of the University of Maryland School of Public Policy told the HPR, that mainstream scholars and lawyers did not think conservative arguments were even “worth taking seriously.” To re-enter the mainstream dialog, conservatives had to force liberals to engage with them. To that effect, one of the principal functions of the Federalist Society is to host debates. And, in addition to debating liberals, conservative activists seek to educate them, particularly in an emerging field called law and economics, which uses economic concepts to analyze legal rules. Conservative donors have funded seminars in which judges and professors learn about law and economics so that its ideas became part of a discourse where they had once been dismissed as mere rationalizations for business interests.
The movement to legitimize conservative legal ideology was alive not just in law school seminar rooms but also in the halls of power. It was integral to the conservative movement that high-profile Reaganites like Attorney General Ed Meese were unabashed in arguing that judges should follow the “original intent” of the Constitution. Arguments that once might have been ignored now demanded a counterargument because they became the arguments of those in power. At the same time, however, Reagan’s judicial team may have believed its views were “more mainstream than they were,” said Teles. When they picked Robert Bork to join the Supreme Court in 1987, his legal philosophy was still unusual enough that Senate Democrats described him as beyond the pale. Twenty years later, though, modern day Borkians are well represented in Bush’s appeals court, and arguably Supreme Court, nominees.
Getting What They Want
The Harriet Miers nomination demonstrates yet another way conservative legal groups have influenced the judiciary: they demand that judicial appointees demonstrate allegiance to conservative legal ideology. This can be most easily done through membership in the Federalist Society. In the absence of organizations that allow for such self-identification, Eugene Volokh of UCLA Law School told the HPR, “a president might try to appoint someone he thinks is conservative, but not have a lot of data points to go on.” Miers’ failed confirmation may be partially explained by the fact that conservatives could not vouch for her bona fides, since she was a Bush friend without ties to the conservative legal establishment. Volokh said that Federalist Society types looked at her and “started worrying about [David] Souter,” whom they regard as a major disappointment, if not an outright turncoat.
In addition to their role in identifying ideological allies, conservative legal groups have an integral role in hiding that allegiance from prying eyes, particularly those of Senate Democrats. Networks like the one maintained by the Federalist Society help potential judges demonstrate their adherence to conservative principles without doing so explicitly; they essentially provide insider information. It is key to the effectiveness of such associations that they are essentially meaningless to outsiders. Democrats have tried to paint the Federalist Society as somehow suspect but have generally failed because, as Teles explained, membership in the group ìdoes not mean anything about one’s opinions on specific hot-button issues.
Politicizing the Bench
The failure of the Democratic attempt to smear the entire Federalist Society shows that the old attacks on Republican judges as beyond the pale are doomed. Conservatives have established themselves within the legal mainstream. But this, of course, did not prevent Senate Democrats from opposing Bush’s nominees on other grounds. As Russell Wheeler of the Brookings Institution told the HPR, some Bush appeals court nominees were opposed for thinly veiled political reasons. It was feared that Miguel Estrada, for instance, would be an easy candidate for the Supreme Court, as a young minority Republican from a sympathetic background. Wheeler also suggested that the intensity of the Democratic opposition to some early Bush nominees might be attributed to a frustration with Republican blockades against some of President Clinton’s nominees. Thus, in an atmosphere where neither side has an institutionalized advantage, the parties end up fighting over the courts just as they fight over anything else.
Perhaps more significantly, noted Teles, institutional parity means that confirmations are just matters of raw power. Now that Democrats control the presidency and a commanding majority in the Senate, the courts are poised to swing back to the legal liberals. According to Wheeler, a bill proposing the creation of 14 new circuit court judgeships will help Obama even out substantially the conservative majorities that now exist on almost every circuit. And Obama, like Bush, will have no trouble relying on an extensive institutional support structure in the legal community. For instance, members of the American Constitution Society, founded in 2001 as a sort of liberal counterpart to the Federalist Society, are already being tapped for administration jobs, including Eric Holder, an ACS board member, for Attorney General. However, also like Bush, Obama will have to face a minority opposition party dedicated to defeating his judges at all costs. Indeed, only a few days after Election Day, Sen. Jon Kyl (R-Ariz.) warned that Republicans were prepared to use the filibuster, a tool they denounced when Democrats wielded it during the Bush presidency. In the Senate, as Volokh explained, it’s always in one of the party’s interests to exploit the judiciary to score political points.