Will Kavanaugh Finally Give Us a Conservative Court?

That’s the question conservatives will quit asking within the next five years, as we should have an answer by then. If the answer is that Brett Kavanaugh has not proved to be a judicial conservative, that will be keenly disappointing—especially given his views about judging (he’s an originalist and a textualist) and also his actual judging in cases before the U.S. Court of Appeals for the D.C. Circuit (he showed no activist inclinations).

In a piece published last month in The Weekly Standard, I took a look at the long-running effort to have sitting a conservative majority (at least five Justices). If that effort finally succeeds, the consequences for the country could be substantial, not least with regard to racial preferences in college admissions, which were supposed to be “temporary” but are still in place.
So Brett Kavanaugh is now part of the story. Kavanaugh, from that part of the swamp known as Bethesda, Md., is President Trump’s nominee for the seat vacated by retiring Justice Anthony Kennedy. If Kavanaugh is confirmed, and if, as advertised, he is a constitutionalist, the country will be closer to having a solidly conservative Supreme Court.

That has long been a goal of modern conservatism, which more than half a century ago developed a sharp critique of judicial liberalism. The liberal Warren Court (1953-1969) drew conservative objection, and in 1964, Republican presidential candidate Barry Goldwater attacked its school prayer, reapportionment, and criminal procedure decisions as exercises in “raw and naked power,” writes Lucas Powe in The Warren Court and American Politics. Goldwater “moved the Court’s results into two-party American politics.” In other words, he made judicial selection an issue in presidential and Senate campaigns.

Goldwater, of course, was not elected president, but Republican presidents starting with Richard Nixon have had multiple opportunities to choose justices of the Supreme Court, and they have put on the Court no fewer than 13. Kavanaugh, who clerked for Kennedy 25 years ago, would be the 14th. Even so, the quest for a solidly conservative Court has proved elusive. At no point have a majority of justices been reliably conservative, not only in what they may say about judging but also in the actual exercise of judicial power. There have been missed opportunities.

Notwithstanding campaign promises that he would appoint judicial conservatives, only one of the four jurists Nixon selected (Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist) proved reliably conservative, and that was Rehnquist. Nor was John Paul Stevens, chosen in 1975 by President Gerald Ford, much of a judicial conservative. The Ford administration’s attorney general characterized Stevens as “a moderate conservative” but court-watchers saw him as a liberal, someone whose views could “evolve,” as they did, for example, on affirmative action.

The Burger Court (1969-1986) wound up compiling a record of judicial activism that rivaled that of the Warren Court: for example, the court approved busing as a remedy for segregation, created a constitutional right to abortion (this was Roe v. Wade), and effectively rewrote federal civil rights law to permit racial quotas in private employment.

In 1981, Ronald Reagan picked Sandra Day O’Connor to succeed Justice Potter Stewart. In O’Connor, Reagan chose a judicial conservative but not the best one available. Three candidates in particular, including Robert Bork, were better qualified by the traditional measures of ability and experience, and were exemplars of judicial conservatism. Reagan chose O’Connor because he had vowed during his presidential campaign to pick a woman (the first ever) for the Court. He stuck to that promise, but O’Connor’s tenure on the Court came at some cost to constitutional liberty: in Planned Parenthood v. Casey (1992), when the Court had the chance to overrule Roe, a bad decision in so many ways, she affirmed the abortion right instead.

Because the Stewart vacancy occurred in the first year of Reagan’s first term, and because he was likely to have additional vacancies to fill, the president could easily have chosen Bork for Stewart’s seat, knowing that another seat might open which he could offer to O’Connor—or a different woman of stronger conservative credentials.

The quest for a reliably conservative court had not advanced far by the end of the Burger Court, in 1986, when Reagan nominated the indisputably conservative appellate judge Antonin Scalia, and the Senate confirmed him by a vote of 98 to 0. Republicans controlled the upper chamber. That was not the case a year later, when Reagan nominated Bork, one of the great intellectuals in the law, to succeed Justice Lewis Powell. Mounting a vicious campaign against the nominee, the Democratic Senate had the numbers to prevail, and did so, 58 to 42. The lesson taught was the obvious one: that the optimal condition for confirmation is when the same party controls both the executive branch and the Senate, as the Republicans did from 1981 through 1986, and as they do today. If Bork had been confirmed, he almost surely would have had, with Scalia, a profound influence on the court’s jurisprudence. As it was, Bork was not on the Court, and Democrats achieved a great victory (for them).

Reagan then turned to Anthony Kennedy, who was confirmed in February 1988. Kennedy was a federal appeals court judge with conservative credentials, though his were not on a par with Scalia’s or Bork’s. Reagan, who spoke often of his desire to appoint conservative judges, probably could not have done better than Kennedy, given the political circumstances.
During his 30 years on the Court, Kennedy proved consequential in a number of areas, including individual rights (religious liberty and free speech) and also constitutional structure (federalism and separation of powers). But Kennedy proved the most disappointing justice for conservatives. He wrote the anti-constitutionalist opinion that created a right to same-sex marriage, a matter properly left for the people of the states to decide. Also, like O’Connor, Kennedy declined to overrule Roe v. Wade.

In 1990, President George H.W. Bush picked federal appeals court judge David Souter to replace Justice William J. Brennan. Souter had been on the appeals court less than a year and written few opinions, none of which involved controversial matters such as the right of privacy, affirmative action, or separation of church and state. Nor had the jurist written much elsewhere, including in law reviews or other media.

Souter’s substantive record was so thin that it could not be easily manipulated in a media campaign, had there been one, against his nomination. As for his judicial philosophy, there appeared to be so little of it as to cause worry in the Justice Department that he might move in almost any judicial direction. And there were alternatives to Souter: All of the others on the shortlist from which he was selected were regarded by the president’s judicial selection team as having a more formidable record in the law. Somehow, though, Bush appointed Souter—another missed opportunity. Not incidentally, Souter, like O’Connor and Kennedy, voted in Casey to affirm Roe.

In spite of the addition to the Court since 2005 of three Republican-appointed justices—Chief Justice John Roberts and Justices Samuel Alito and Neil Gorsuch, each of whom is a judicial conservative—the Court has lacked a reliably conservative majority. Might Kavanaugh be the justice who finally creates that majority? Or do we have in the making another missed opportunity in the rugged terrain of judicial selection?

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