August 1, 2018

How the Federalist Society Changed the Supreme Court Vetting Process



We already know that Brett Kavanaugh will be a strong conservative on the Supreme Court, just like Neil Gorsuch, but not because of confirmation hearing vetting. Both were handpicked by the Federalist Society network, giving conservatives the assurances they need and making liberals want to ask tough questions that may not get answered. Amanda Hollis-Brusky finds that the Federalist Society engineered a conservative counterrevolution through scholarly exchange and a farm system for future justices. But Paul Collins, Jr. finds that nominees do often share their views on settled law during the hearings; it was Gorsuch who stood out as much less forthcoming. Preview what Kavanaugh will say at his hearings and understand why he can avoid saying much.

The Niskanen Center’s Political Research Digest features up-and-coming researchers delivering fresh insights on the big trends driving American politics today. Get beyond punditry to data-driven understanding of today’s Washington with host and political scientist Matt Grossmann. Each 20-minute episode covers two new cutting-edge studies and interviews two researchers.

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Transcript

Grossmann: This week on Political Research Digest, how Federalist Society vetting replaced confirmation hearings for the Supreme Court. From the Niskanen Center, I’m Matt Grossmann.

We already know that Brett Kavanaugh will be a strong conservative on the Supreme Court, just like Neil Gorsuch, but not because of confirmation hearing vetting. Both were handpicked by the Federalist Society, giving conservatives the assurances they need in making liberals want to ask tough questions that may not get answered.

In her recent Oxford University Press book, Ideas with Consequences, Amanda Hollis-Brusky of Pomona College finds that the Federalist Society helped engineer a conservative counter-revolution through scholarly exchange and a field system for future justices.

I talked to her about how and why their dream has come to fruition under Presidents George W. Bush and Donald Trump. But will we learn anything from the confirmation hearings that we don’t already know?

I also talked to Paul Collins of the University of Massachusetts about his new Chicago-Kent Law Review article with Lori Ringhand, “Neil Gorsuch and the Ginsburg Rules,” and their related book, Supreme Court Confirmation Hearings and Constitutional Change. They find that nominees do often share their views on settled law, but that Gorsuch was much less forthcoming.

A conservative rise to a solid Supreme Court majority has not merely been the product of a few justices, but the wider conservative legal movement tracked by Hollis-Brusky.

Hollis-Brusky: Large shifts in constitutional understanding, constitutional revolutions require more than just five justices on the Supreme Court. They require help from the broader legal community, from lawyers who know how to find and bring the right cases before the Supreme Court to academics who have to work to develop the ideas and legitimate the theories that those judges rely on when they shift constitutional meaning.

And to the broader public, there are people who go out and try to sell Supreme Court decisions so they seem legitimate, so they don’t seem off the wall. Over the past 30 years, we’ve been experiencing a conservative counter-revolution and that all of that work has been located in and really accomplished by members of the Federalist Society network.

Grossmann: The main arena for the rise of the conservative legal movement has been the Federalist Society, but it does not operate like a normal interest group.

Hollis-Brusky: The organization does not take official policy positions, it doesn’t officially lobby as an organization, it doesn’t endorse political candidates as an organization, and yet its members do all of these things.

Grossmann: Responding to leftward shifts on the bench, conservatives built an alternative legal elite.

Hollis-Brusky: Conservatives had long experienced what they thought was judicial drift or the greenhouse effect. They’d find these what they thought were good solid conservative judges, they’d nominate them to the federal bench, to the Supreme Court. But then these judges would come to D.C., which was dominated by liberal elites, they’d want to be invited to the good cocktail parties in Georgetown, they’d want the approval of the local media, which was left-leaning and liberal.

And so they’d start to drift from their good conservative position over to the left. And this is how the Federalist Society would explain picks like Justice Stephens and Harry Blackman. And I think the last one that fell victim to the greenhouse effect would be someone like David Souter.

So the idea was the Federalist Society would establish an alternative elite, a conservative and libertarian elite, that could take the place of that liberal set, that could provide a reference point and a competing audience.

Grossmann: By changing personnel and ideas, they made changes in areas like campaign finance law.

Hollis-Brusky: So the Federalist Society has two mottos, two mantras if you will. And I heard these over and over when I was interviewing core members of the Federalist Society in 2008.

The first motto is “ideas have consequences.” That was taken from a conservative intellectual named Richard Weaver, a book he wrote in 1948.

And the second mantra was “policy is people.” And so ideas don’t have consequences unless you have the right people in positions of power to espouse those ideas, to draw on those ideas, to legitimate those ideas.

The story of campaign finance is a story of “policy is people” because obviously it wasn’t until after Alito and Roberts (both Federalist Society members) joined the Court, that it’s even possible to issue an opinion like the opinion in Citizens United. But it’s also about ideas, the ideas that allowed the Supreme Court to strike down this area of campaign finance law were about corporations and corporations having First Amendment rights.

Grossmann: But Supreme Court nominations played a central role in the conservative legal movement’s rise, starting with the failure of Judge Robert Bork.

Hollis-Brusky: Bork certainly was a rallying cry within the Federalist Society, so a lot of the early Federalist Society founders were actually working in the Reagan Justice Department. And Bork was a hero of theirs. He was one of the early patrons of the Federalist Society. He was one of the few open conservative legal academics in the academy at the time, along with people like Scalia, Richard Epstein. There were only a handful of them.

And so Bork’s failed nomination I think allowed the Federalist Society to mobilize, number one.

And number two, I think it allowed them to understand that it’s not enough to try to shove people through nomination hearings to get access to power. You need to win the broader battle for control of ideas.

And so Bork’s judicial philosophy today is mainstream, and I think that’s a credit to the Federalist Society in promoting originalism, the idea that you interpret the Constitution according to its original public meaning.

Grossmann: By the time George W. Bush was ready to nominate, Hollis-Brusky says they had achieved critical mass.

Hollis-Brusky: There was enough talent that George W. Bush administration could pick almost exclusively from the Federalist Society. The second element there is about the American Bar Association. So it’s during the George W. Bush administration that those on the right, conservatives, libertarians, and particularly those within the Bush administration decide that the American Bar Association and their rankings, which had been relied on since Eisenhower, are illegitimate, they’re biased, they’re left-leaning.

And so the American Bar Association was sidelined in the process. And instead, George W. Bush said he and Alberto Gonzales, who was a Federalist Society member, would look to the Federalist Society network for good, conservative judges and justices.

Grossmann: And Trump has taken it to a new level, releasing a public list of Federalist Society approved nominees.

Hollis-Brusky: Actually, publishing a list might be one of Donald Trump’s only good innovations in terms of judicial nominations and selection. Prior to Trump’s list, which was and is public, the process was always very cloak and dagger. Nominees were vetting kind of secretly, we didn’t know who was being considered unless there was a leak.

This way (and I don’t think it’s because Donald Trump is a fan of transparency, but I think rather he did it for political reasons to lure elite conservative and Republican legal types to him and to support him) that list allows the public to really scrutinize and vet and make their own decisions about who is being considered.

Grossmann: But Paul Collins says Trump’s first nominee, Neil Gorsuch, broke the mold when it comes to refusing to answer questions at his confirmation hearings.

Collins: In terms of history, Gorsuch was the least forthcoming nominee in about the last 50 years. So the thing is is that nominees have always avoided answering certain types of questions. And on the other hand, they’ve answered other types of questions. Gorsuch stands out quite a bit in the sense that he really got a pass from the Republicans on the Senate Judiciary Committee in terms of what he was allowed to refuse to answer.

Grossmann: It’s disappointing because we used to learn quite a bit from confirmation hearings.

Collins: Supreme Court confirmation hearings, they do have value, and nominees in the past have given some standup answers to important legal questions. However, Neil Gorsuch failed to offer much of anything of substantive value at his hearing.

So we want the hearings to return to being a valuable part of the confirmation process. We need to insist that Trump’s nominee, Judge Kavanaugh, answer the senators’ questions on settled matters of constitutional law to illustrate that he’s part of the constitutional mainstream.

Grossmann: In the new article, Collins and Ringhand test the popular view that nominees refuse to answer questions in their hearings.

Collins: We set out to empirically test the conventional wisdom, and we did so over the course of a book and a series of articles including this one.

So with regard to the broader project, our results generally challenged the conventional wisdom in the sense that we find that nominees do often give their opinions on settled matters of constitutional law. So for example, recent nominees have affirmed a constitutional right to privacy, that the First Amendment protects non-political speech, and that gender discrimination should be held to an intermediate scrutiny standard.

Grossmann: But they did confirm the conventional wisdom about when nominees avoid questions.

Collins: We demonstrate that nominees generally avoid taking firm positions on currently controversial issues, with abortion probably being the best example.

Grossmann: The justification for not answering questions, or the excuse depending on your perspective, usually goes by the name the Ginsburg Rule.

Collins: First, there’s this idea that nominees should avoid taking positions on controversial matters of the law because it might give the appearance of bias for future litigants. So in other words, judges shouldn’t look like they’ve already pre-judged a case.

The second aspect of the Ginsburg rule involves a separation of powers, and the idea here is that it’s inappropriate for the Senate to require nominees to pledge themselves to particular positions as a condition of confirmation. To do this, the idea is that it would result in the Senate having an inappropriate level of influence over the Supreme Court.

Grossmann: But they directly compared Gorsuch and Ginsburg and found a huge gulf in their responsiveness.

Collins: Ginsburg took firm positions on about eight times as many cases and issues as Gorsuch did. So Ginsburg, for example, took firm positions on Griswold v. Connecticut, Dred Scott v. Sanford, Brown v. Board of Education, Lemon v. Kurtzman, and very atypically Roe v. Wade.

The senators couldn’t even get Gorsuch to say that Brown versus Board of Education was correctly decided, so they really couldn’t have demonstrated a different approach to their hearing.

Grossmann: They collected data on privileged answers and firm answers.

Collins: Privileged responses are when nominees refuse to answer questions on the grounds that doing so would give the appearance of bias for future litigants, would violate judicial independence, or some similar reason. Firm answers we define quite narrowly as when nominees provide firm, current positions on clearly identified legal issues or cases.

Grossmann: And they found steady or increasing responsiveness overall despite Gorsuch.

Collins: What we show is that nominees have always avoided answering certain types of questions, but they’ve always opted to answer other questions. Nominees have actually been answering more questions over time, although the two more recent nominees have been a little bit more evasive than their counterparts.

Grossmann: Gorsuch stood out even compared to Bush’s nominees.

Collins: Alito was very forthcoming. He took firm positions on about ten percent of his questions. Brown was about two percent of the time. I wouldn’t be surprised if we see Kavanaugh look a little bit like Alito and Roberts than Gorsuch for the reasons I identified, that I think it’s going to be harder for Kavanaugh to just avoid answering even the most basic questions of constitutional law.

Grossmann: Republican senators famously refused to hold hearings on Obama nominee Merrick Garland, possibly because he might have come off as a moderate in the judicial mainstream.

Collins: I think that what we learned from Merrick Garland was that he was probably as moderate as people expected him to be. He was a real consensus choice. I think he would have affirmed the most basic current constitutional consensus and probably wouldn’t have gone much further than other recent nominees.

I think he probably would have had a relatively smooth path, and I think that’s one of the reasons why the Republicans were hesitant to hold hearings because I think he would have come across as perfectly within the constitutional mainstream and it would have been exceptionally difficult to not vote in support of his confirmation.

Grossmann: Collins expects Kavanaugh will need to disclose more of his views in his confirmation hearings.

Collins: His unpopularity kind of reflects the president’s unpopularity, but Kavanaugh has Robert Bork levels of popularity which doesn’t play into his favor if he’s overly evasive. And the lastly, the Democrats are really looking for a fight on this one so they’re going to bring out everything they have at the hearings. And I suspect there may be some new information that doesn’t paint him in a favorable light, and he’ll feel the need to defend himself. And that might involve being much more forthcoming than Neil Gorsuch was.

Grossmann: Polarization means most senators have already made up their mind, but Collins still sees some potential for crossover votes.

Collins: The broader polarization and the hearings are closely tied together. I think in part because of polarization, the hearings look very adversarial with same-party senators giving nominees softball questions and opposite party senators appearing quite hostile.

I think if a nominee knocked their hearing out of the park, I think they could pick up some opposite party votes, even potentially more than ten, which suggests that the performances at the hearings can matter quite a bit. And Elena Kagan comes to mind. I thought that she did a really great job at her hearing. She walked that line between what questions you answer and what questions you avoid quite well. She was generally impressive. Even the Republic senators commented on her in those terms.

Grossmann: But Republicans will keep nominating conservatives.

Collins: I think what they learned is that they really have to vet nominees to ensure they have their conservative bonafides. There were huge mistakes for Republican presidents, and I don’t think the conservative legal movement will ever forget that.

So under the Trump administration, they farmed out the role of vetting these nominees and of grooming these nominees to groups like the Federalist Society and the Heritage Foundation, who again have done a really good job at this.

Grossmann: Hollis-Brusky says they won’t make that mistake again. The last four Republican nominees have descended from the same now-entrenched network.

Hollis-Brusky: Roberts and Alito are involved a little bit earlier, and they’re both in the Reagan justice department with some of the early founders. And so they have been involved with the organization for longer. But Gorsuch and Kavanaugh are extraordinarily well-known to the organization.

You can just look at the Federalist Society website and it lists all of Kavanaugh’s presentations, his conference appearances. He’s been involved since that Bush justice department. He was one of those who did the vetting and selection for judges and judicial nominees in the Bush White House before he himself was tapped for the federal judgeship. And so he is deeply involved in the Federalist Society.

And Gorsuch as well. Gorsuch had given the Barbara K. Olson Memorial Lecture, which is a very high-profile lecture within the Federalist Society and was extraordinarily well-known.

Grossmann: Collins agrees with Hollis-Brusky that the Federalist Society has taken over some vetting roles from the Senate, but he doesn’t think it’s a good trend.

Collins: The Federalist Society does an excellent job of establishing the conservative bonafides for the individuals on President Trump’s list. I think where the hearings come to play is that it’s covered for it, right? So by giving Republican nominees a pass with regard to what they might say at the hearings, they’re basically hiding the fact that these are extremely conservative justices that have been vetted by an interest group that is incredibly good at what it does.

Grossmann: It’s a bit of a puzzle that Trump has leaned so heavily on conservative elites for his court nominees. Hollis-Brusky says it’s built of his incompetence and the positive feedback he receives.

Hollis-Brusky: Trump has largely outsourced the entire operation, judicial selection, judicial nomination, to the Federalist Society. I think there is a competency issue there. I don’t think Donald Trump has any idea of what constitutes a good conservative or libertarian judge or justice. I don’t think he has any real understanding of the Constitution, of what the courts do.

This is a man who’s filed a lot of lawsuits in his life, but I don’t think he has a really good sense of the role that the Supreme Court plays in shifting constitutional meaning over time and adjudicating the separation of powers, the relationships between the federal government and the states. They’re not issues that Donald Trump thinks about.

I believe he’s outsourced it to the Federalist Society number one because he has no understanding of it, but number two is because this is one area where he’s consistently gotten approval and applause from the conservative and libertarian elite.

Grossmann: And Collins agrees it’s a marriage of convenience rather than shared trust.

Collins: This might be just one of those rare areas where President Trump and others in his administration realize they’re not experts, but of course he’s not at all shy about claiming credit for his judicial appointments. So I think it’s a complicated relationship he has with the conservative legal movement, but ultimately they enable him to not only build his partisan base of support but also to claim credit, which is as we know what presidents are looking to do.

Grossmann: So what else should we look for in the confirmation hearings? Collins will be looking at racial and gender dynamics.

Collins: When we were reviewing the hearing transcripts over the course of really almost the last 10 years now, we came to believe that female and racial minority nominees might be treated differently by senators at the hearings.

So for example, we have a forthcoming article in the Law and Society Review that demonstrates that female nominees get more questions from senators regarding their competence to serve on the court.

And then at this year’s American Political Science Association meeting, we’re presenting a paper that examines whether female and racial minority nominees are more frequently interrupted by senators at the hearings.

So we’ve come to believe that there’s some gender and racial dynamics that are certainly worth exploring, particularly as the hearings are so high profile.

Grossmann: There’s a lot more to learn. Political Research Digest is available biweekly from the Niskanen Center and on iTunes. I’m your host Matt Grossmann. Thanks to Amanda Hollis-Brusky and Paul Collins for joining me. Pick up your copies of Ideas with Consequences and Supreme Court Confirmation Hearings and Constitutional Change, and then join us next time to find out how political donors are changing the ideological makeup of each major party.