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Gorsuch Furor Shows GOP’s Struggle to Build Ideology-First Court

June 22, 2020, 8:51 AM

Conservatives long frustrated by their Supreme Court picks going rogue once on the bench spent decades building the perfect pipeline and threw millions at their model nominees’ confirmation, culminating in a rock-solid 5-4 majority under President Donald Trump.

Then, in just a week, two of those Republican-appointees, Chief Justice John Roberts and Associate Justice Neil Gorsuch, enraged conservatives by penning opinions curbing LGBTQ job discrimination and protecting “Dreamer” immigrants.

No one was angrier than Trump, who nominated Gorsuch and has made confirming judicial nominees a cornerstone of his reelection campaign. He lashed out in a tweet criticizing “these horrible & politically charged decisions” and said they made picking the right justices “more important than ever before.”

Trump said he plans to release a new shortlist of Supreme Court possibilities ahead of the election, and it appears key Senate Republicans want to sharpen their vetting of judicial selections going forward. The question is whether Republicans actually can do any more to assure their nominees rule as expected after confirmation or must accept that justices will sometimes produce opinions that don’t align with the party that picked them.

“Once you’ve been a judicial nominee bought and paid for, you’re supposed to stay that way, bought and paid for, and we shouldn’t want our justices to be like that,” said Richard Davis, a political science professor at Brigham Young University in Utah who follows judicial nominations.

Although Republicans expressed outrage about both decisions, the blow dealt by Gorsuch, the replacement for late Justice Antonin Scalia, was more of a shock to the base.

Senate Republicans blocked President Barack Obama from filling Scalia’s seat and the Judicial Crisis Network had pledged to spend $10 million to get Trump’s pick confirmed even before Gorsuch got nominated.

Triggering Flashbacks

For conservatives, the opinions from Gorsuch and Roberts—who had already angered them years ago by upholding Obamacare—triggered flashbacks to a half century’s worth of disappointment.

The long list of Republican-appointees who allegedly drifted to the left includes two of President Dwight Eisenhower’s picks, Earl Warren and William Brennan in the 1950s, through Harry Blackmun and John Paul Stevens in the 1970s and then David Souter in the 1990s.

“Haven’t we seen this before? Call it the Souter Switcharoo,” J. Christian Adams, a conservative activist and former George W. Bush Justice Department official, said in a June 18 column that criticized both rulings.

Sen. Josh Hawley (R-Mo.), a former Roberts’ law clerk, took to the Senate floor to warn that Gorsuch’s ruling signaled “the end of the conservative legal movement.”

It is a movement conservatives had carefully built over decades to avoid repeating past mistakes. In the 1980s, they formed the Federalist Society, a networking organization that became a pipeline for like-minded judges. More recently, deep-pocketed benefactors funneled millions into the Judicial Crisis Network and similar groups that bought television and Facebook ads in support of Republican judicial nominees.

All those efforts seemed to come to fruition under Trump. The Republican-controlled Senate has helped him appoint more reliably conservative nominees to the Supreme Court and lower courts. This week, the Senate is expected to confirm a nominee to the last vacant federal appeals court seat which would also be Trump’s 200th judicial confirmation.

Past Mistakes

Judicial Crisis Network President Carrie Severino said conservatives have learned from past mistakes. The lesson from Souter, for example, was that if you pick a nominee without a public record on certain issues “often you’ll just get a Democrat,” Severino said.

Similarly, Severino said, Roberts’ 2012 opinion upholding Obamacare in National Federation of Independent Business v. Sebelius triggered a shift in conservatives’ focus on a nominee’s “courage” and ability to make the right decision regardless of what the public response might be.

Severino said it’s too early to tell if Gorsuch is a future cautionary tale and holds out hope that the LGBTQ decision in Bostock v. Clayton County is an outlier. Even conservative icons, like Scalia, had opinions that angered the Republican base from time to time, but their record remained conservative overall, she said.

“It’s very hard to know to what extent this is a singular anomaly or if it represents a real shift in the type of textualism that Justice Gorsuch is embracing,” Severino said. “I think we’ll be watching the rest of the term to see what this means.”

Gorsuch, for his part, has been on the side of major conservative issues, like gun rights and political redistricting. He also voted to uphold Trump administration policies, including the travel ban, his bid to add a citizenship question to the Census, and, most recently, the attempt to rollback protections for “Dreamers.”

Hill Questions

If judicial confirmations after Gorsuch’s ruling is any guide, Republican senators are already looking for ways to refine their vetting.

Sens. John Kennedy of Louisiana and Hawley pressed two California nominees June 17 on textualism, a conservative legal principle that relies on the text of the law alone to derive its meaning, nodding heavily to Bostock.

The rulings are almost certain to come up at future confirmation hearings. But there’s also a risk of pressing nominees more about how they might rule on particular cases, said Mike Davis, president and founder of Article III Project, which has advocated for conservative judicial confirmations.

Requiring judicial nominees to say how they would rule on particular issues could end up encouraging the type of judicial activism conservatives oppose, said Davis, who was a clerk to Gorsuch and also served as nominations counsel to former Judiciary Committee Chairman Sen. Chuck Grassley (R-Iowa).

“If we get into the game of judicial activism on the right, and judicial activism is based on what’s popular at the time, it’s more often than not going to be a losing issue for conservatives,” he said.

Flawed System

The reality, say scholars who study the confirmation process, is that it’s impossible to create the perfect vetting process that weeds out potential judges who might think differently on a particular issue from the party that nominates them.

“It’s such an inexact science, frankly, to be able to be prescient about what someone will do,” Richard Davis, the professor at BYU, said.

Eric Segall, a law professor at Georgia State University, said it’s hard to imagine the administration could do anything differently when it comes judicial vetting since they’re already picking the most conservative nominees possible for judgeships. Democrats, for instance, often call them ideologically extreme.

“I don’t know what that world looks like,” Segall said. “They’ve gone to every nook and cranny and corner to find the most conservative judges possible.”

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; Bernie Kohn at bkohn@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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