Finding the Next Justice Thomas Will Take a Gang, Not a Village

David Brooks’ insightful account of “a self-consciously built” “conservative legal infrastructure” behind Judge Brett Kavanaugh’s nomination raises more fundamental questions about the Court and contemporary political and academic trends. While this “infrastructure” is a work of many hands, Brooks really means to single out the Federalist Society.

The Federalist Society is better understood as a gang (MS-1787) rather than as a “community” or village or even “a cohesive band of brothers and sisters.” Sometime in the 1990s, The New Republic called “the Straussians” as the “one of the top-ten gangs of the millennium.”

Tom Sawyer, in Adventures of Huckleberry Finn, makes the commitment required of such an endeavor clear: “Now, we’ll start this band of robbers and call it Tom Sawyer’s Gang. Everybody that wants to join has got to take an oath, and write his name in blood.” The contrast between the political effectiveness of the Federalist Society and other groups on the right founded at the same time in the early 1980s, including the politically less successful Straussians, is instructive. Even the good each has achieved may not be sufficient to meet the political crisis of our time.

I will not repeat the heroic tale of the rise and rise of the FedSoc but rather refer the serious reader to political scientist Steven Teles’s account in The Rise of the Conservative Legal Movement. One must compare it with a 29 year-old Woodrow Wilson’s excitement at forming “a band of young fellows (say ten or twelve)” to dominate the public prints with their thinking—whose content he does not dwell on, other than its novelty. “All the country needs is a new and sincere body of thought in politics, coherently, distinctly, and boldly uttered by men who are sure of their ground.” Wilson, of course, became the first (and perhaps only) president to attack the Declaration of Independence, in the name of Darwinian novelty and against individual rights.

The Federalist Society for Law and Public Policy Studies originated as a debating society involving “conservatives and libertarians” who are committed to the principles of freedom and the separation of powers, and who believe “that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” At least in their earlier years, they stood more for Judge Robert Bork’s legal positivism against the exotic or even toxic leftist faculty. But the group has also expanded its appeal, sponsoring its 2015 annual Rosenkranz debate between Robert George of Princeton, a new natural law scholar, and John McGinnis of Northwestern law school, an originalist and a positivist. Other groups have gone beyond the generalities of the FedSoc, such as Hadley Arkes’s James Wilson Institute and John Eastman’s Center for Constitutional Jurisprudence, the litigation project of the western Straussian Claremont Institute. But the Federalist Society, with help from the Heritage Foundation and, most of all, White House Counsel Don McGahn, put together Trump’s list of potential judicial appointments.

The Prudence and Limitations of the List

The genius and limitations of the FedSoc can be seen in the cleverness of the Trump campaign’s list of potential Supreme Court nominees. The list has been expanded twice, indicating the first list of 11 judges was concocted in significant part to appeal to crucial states in the campaign, including Colorado, Iowa, Michigan, Minnesota, Missouri, Pennsylvania, and Wisconsin. The second list of 10 added two from Florida and doubled up on names from Colorado (including now-Justice Neil Gorsuch), Iowa, Michigan, and Missouri. Finally, the White House released a third list of five names in November 2017, which elicited a harrumph from the New York Times. It included a name some observers thought oddly omitted from the first, Judge Kavanaugh, who went through extended and heated confirmation battles before being confirmed in 2006. Judge Amy Coney Barrett, a finalist for this current nomination, was also on this latest list. The next list may be the true list.

It now seems clear that the first list was a trial to see whether a list in principle was a political success, so the campaign added the second list with Gorsuch. They saved the controversial Kavanaugh for the third list. (In the meantime, Trump promoted others named in the first list from State Supreme Courts or a federal district court to federal circuit courts of appeal.)

Trump both rationalized and politicized the selection of Supreme Court justices, to the advantage of both the Constitution and his own political interest. This contrasts with the blemished records of George H.W. Bush and his predecessors Nixon and Reagan (not to mention Eisenhower) and the avoidance of disaster with George W. Bush’s near-nomination of his assistant, Harriet Miers.

If they had been given the chance, would the Federalist Society have done the really right thing and have proposed Phyllis Schlafly, the woman who single-handedly stopped the ERA, to fill the woman seat on the Court President Reagan had promised in his 1980 campaign? After the Supreme Court’s role in the collapse of the separation of powers and the rise of the administrative state, nothing but a political challenge from within could restore it to its constitutional place.

But these disparate strands lead us up to the fundamental issue in thinking about the Constitution. It arose in the Elena Kagan confirmation hearing in 2010. Senator Tom Coburn (R-Okla.), not a lawyer but a member of the Senate Judiciary Committee, asked her about her belief in natural rights and the principles of the Declaration of Independence. (Skip to 16:30 here.) Kagan reacted as though she had been asked whether she accepted Jesus Christ as her personal savior and accordingly insisted her thoughts on the matter, whatever they were, had no bearing on how she would judge cases. No other senator on the committee asked about the Declaration or natural rights.

Would the judges on the FedSoc list answer this key question any better? In fact, Gorsuch would and likely Judge Barrett would, too—though I wonder about any commitment they may have to “new natural law”—but I have my doubts about the others. That of course is the fault of the legal education establishment, not the Federalist Society,  which has only crooked timbers to work with. There is work for many gangs.

The Declaration Anchors the Constitution

The first principle of American constitutionalism is the bond between the Declaration and the Constitution. The distortions of the Dred Scott case unmoor the Constitution from any dignity and purpose it has in an original understanding. American jurisprudence has never recovered from that case. In brief, if Americans can’t understand the injustice of slavery and why it was so difficult to extirpate it, what can they possibly understand about living in a free society?

It is not for nothing that the most radical originalist on the Supreme Court is Clarence Thomas, who grew up under segregation. His commitment to natural right is seen less in citation of doctrine, though he is quite adept at this. It is rather manifest in his radical originalism—his quest to find the roots or nature of the issue at hand.  In helping bolster that determination in him, the Claremont gang played a role.

Thomas has revived the legal world’s interest in basic questions about the Constitution.

There is no cloning a Clarence Thomas. But smart and influential people need to be able to spot such a one and let him exercise his virtues by connecting our crisis today with the founding, the Constitution and the Declaration together. A bold president is essential. Though the stage is set, it seems unlikely the Trump-Roberts Court will be able to perform this gargantuan task. Nonetheless, grounds for hope remain.

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About Ken Masugi

Ken Masugi, Ph.D., is a senior fellow of the Claremont Institute. He has been a speechwriter for two cabinet members, as well as for Clarence Thomas when he was chairman of the Equal Employment Opportunity Commission. Masugi is co-author, editor, or co-editor of seven books on American politics. He has taught at the U.S. Air Force Academy, where he was Olin Distinguished Visiting Professor; James Madison College of Michigan State University; the Ashbrook Center of Ashland University; and Princeton University.

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