Haven’t we seen this before? Call it the Souter Switcharoo. Purportedly conservative jurists get on the Supreme Court and write opinions that sound like leftist jurists.
Just this month, we have one conservative justice writing that a president doesn’t have the power to revoke a previous president’s executive order unless procedures that satisfy the swamp are followed. In another opinion, another conservative Justice opines that transvestism is protected under federal civil rights laws wholly intended to protect women.
This is what conservatives get for winning those confirmation fights?
It never happens the other way around, does it? Justice Sonia Sotomayor didn’t rise to the Supreme Court and morph into a centrist. It’s a one-way ideological ratchet, and the Constitution seems to be the loser.
It’s time for the conservative movement to examine what went wrong here. Why do so many “conservative” judges get confirmed and side with the left’s jurisprudential agenda?
The road to recovery starts with asking why.
Let’s start with George W. Bush. Instead of elevating Justice Antonin Scalia to Chief Justice — a giant who earned it — Bush wanted to look elsewhere. One of the most important qualifications for Bush was to find “the best Supreme Court advocate.” In other words, Bush wanted the lawyer who was known to be the most effective lawyer appearing before the Supreme Court.
Some might find this an odd ask. Effectiveness in front of the Supreme Court doesn’t translate well into being a principled Supreme Court Justice. The ability to shapeshift, to argue every side of every point, to represent a client effectively no matter the relative weakness of a client’s position is a skill far removed from a principled constitutional judicial philosophy. It is a bit of the opposite, isn’t it?
Seeking the “best Supreme Court advocate” is another way of seeking the best at the insider’s game of Supreme Court practice in Washington, D.C. President Bush, of course, had every right under the Constitution to pick a nominee based on their reputation for appellate advocacy.
Washington has a strong ideological gravity, and one solution may be for a president to turn elsewhere for Supreme Court nominees, as I’ll get to shortly.
This brings me to the second problem that should be examined. The nation’s elite law schools have become leftist training academies. God bless the few constitutionalists and conservatives who graduate from these places. I wrote a piece years ago — Does Harvard Teach Law Anymore? I could have written it about any of the Ivy League law schools. It was easy to write. All I did is open up the crazy course catalog. It was like opening up a book of spells. Crazy, crazy things, courses like “The Art of Social Change,” “Immigration Law and Social Change,” “The Justice Lab,” “Gender Violence and Social Justice,” and more courses obsessed with race than you can shake a stick at.
In my experience, I certainly have practiced with very good lawyers who went to Harvard or Yale. But I have also practiced with many lawyers who went to Harvard or Yale who were good at seeing five sides to every coin, but didn’t necessarily have much of a grasp on the real practice of law. Sure, they knew their social justice, but they didn’t seem to understand the rules of evidence quite the same way, or how to do an interview of a fact witness successfully.
The point is that there is less and less “law” going on at these schools and a whole lot of fundamental transformation.
Of course it is possible to escape from Harvard and Yale and not lose your way. But don’t underestimate the power of culture and being surrounded by crazy as a way of life.
There is a reason that Justice Clarence Thomas picks at least one clerk each year from the real world, meaning a law school where the course catalog is dominated by law from the real world, not law from the witch’s brew of progressive transformation.
So let us start to examine some seemingly reasonable (at the time) practices that landed us here and demoralized conservatives.
Nearly every Supreme Court nominee since President Herbert Hoover’s picks came from the federal bench, raw politics, Congress, or the federal swamp.
Instead of picking judicial nominees from the federal bench, consider more nominees from state courts. Only two Supreme Court nominees in the last 88 years came from state supreme courts — Souter and William Brennan. State supreme court justices are likely to have a perspective that understands the importance of states in the federalist arrangement.
Retool the vetting process for lower federal court picks. Now, lawyers in the DOJ and the White House Counsel’s office drive decisions on lower court nominations, along with input from senators from each state. Often, these same lawyers themselves aspire to the federal bench. And not surprisingly, graduates from the same Ivy League law schools have an outsized role in the process. It’s time to reassess that process.
And finally, how about a Supreme Court nominee who didn’t go to Harvard or Yale for law school?
We’ve only had one (and a half) in the last forty-five years — Sandra Day O’Connor. Ruth Bader Ginsburg went to Harvard Law but transferred to Columbia.
There are 203 other ABA-approved law schools in the United States besides Harvard and Yale. Considering what is going on in those schools now, it might be wise to broaden the pool a bit. When Justice Neil Gorsuch attended Harvard Law, it hadn’t gone full-on crazy, but that has changed.
These two institutions do not deserve this much power to influence the federal bench.
I don’t know if we can fix the problem by a new focus on state supreme court justices, widening the law school credentials of Supreme Court picks and revamping the judicial selection process inside the executive branch, but it seems the other traps aren’t working the way we all expected. If these three ideas won’t improve the situation, get the conservation going, and name your fix.