October 21, 2020

Opinion | The Republican strategy for every Supreme Court nominee: Hide what you believe

How can you tell? Because that agenda is always cloaked in lies and obfuscation.

Not 100 percent of the time, of course. But whenever a Republican gets a little too frank about what they’re hoping to get out of the Supreme Court in coming years, others rush in to say, “No no, we don’t want anything like that. Why, we barely have any legal agenda at all!”

So with the right about to gain that bulletproof court majority, conservatives write op-eds telling liberals they have “nothing to fear” from Amy Coney Barrett because she’s smart and fair-minded, as though that guaranteed that her decisions as a Supreme Court justice wouldn’t be every bit as conservative as her decisions as an appeals court judge.

Will the Affordable Care Act be overturned? Nonsense, how could you think such a thing! When the Texas Tribune explained how many people in the state would lose coverage if the GOP lawsuit seeking to have the law nullified were to succeed, Sen. John Cornyn (R-Tex.) — who supports that lawsuit — tweeted, “This is pure scare tactics. Why?”

And then, of course, there’s abortion. Though repealing Roe v. Wade has been a central Republican goal for decades, in confirmation hearings Republican court nominees deflect by saying it wouldn’t be proper to comment on issues that might come before the court — though they do allow that Roe is an important precedent and they deeply respect stare decisis, the principle that prior decisions should only very rarely be overturned. Meanwhile, their Republican promoters scold Democrats for assuming that the nominee will rule one way or the other on Roe.

This is true of every conservative who now sits on the court:

  • Samuel Alito said he had an “open mind” on abortion cases.
  • John Roberts said that “nothing in my personal views” would keep him from upholding Roe.
  • Neil Gorsuch said he accepted that Roe is the “law of the land.”
  • Brett Kavanaugh assured senators that Roe is “settled law.”
  • Clarence Thomas, most absurdly of all, claimed he had never once even had a conversation about Roe, such a blank slate was he. Yet in the most recent abortion case the court heard, Thomas wrote in dissent, “Our abortion precedents are grievously wrong and should be overruled.” No one was surprised.

Conservatives have developed an entire lexicon meant to obscure their actual legal views, cloaking them in abstract principles we’re supposed to believe have no ideological bent. Judges such as Barrett, they tell us, are “originalists” and “textualists” who oppose “judicial activism” and want only to “apply the Constitution as written” and not “legislate from the bench.”

But when it comes time to render decisions, it turns out that by pure coincidence the application of these broad ideals almost always leads them to conservative rulings. One day “originalism” means crossing out, “A well-regulated Militia, being necessary to the security of a free State” from the Second Amendment for the first time in two centuries to create an individual right to assemble a limitless arsenal. The next it means striking down the Affordable Care Act. One day “applying the Constitution” means gutting the Voting Rights Act. The next it means making it harder for unions to organize.

That’s just part of the conservative agenda on the courts, an agenda that also includes further erosions of voting rights, freeing the wealthy from campaign finance regulations, undercutting workers’ rights, undoing protections for LGBTQ Americans, and making it harder if not impossible for the government to regulate pollution.

And when there isn’t a Supreme Court vacancy, Republicans are quite happy to organize their base around that agenda. For many years, “No more Souters!” was their rallying cry, a reaction to the fact that Justice David Souter was appointed by George H.W. Bush and then turned out to be unexpectedly liberal.

Republicans were determined to never have that happen again, which is where the Federalist Society comes in.

While it serves many functions, the Federalist Society’s most vital purpose is to create a pipeline of pre-vetted court nominees for Republican presidents, providing a stamp of approval that removes all doubt about a potential judge’s ideological fealty. Promising conservatives are identified in law school, then nurtured and monitored through their careers as they work in law firms, clerk for conservative judges and serve on lower courts.

Because Trump’s only concern about the courts is how he can use them to maintain the loyalty of his base, he literally turned over the task of selecting judges to Leonard Leo, the Society’s key figure. Barrett just popped out the business end of that pipeline.

Yet because now she’s an actual nominee, Republicans have to switch gears and pretend that mystery surrounds her. Who knows how she’d rule on the court? All that matters is her collegiality and deep respect for the law.

In 2002, a young White House lawyer offered a controversial right-wing appeals court nominee some sage advice on how to handle her confirmation. Here’s what he wrote in an email:

She should not talk about her views on specific policy or legal issues. She should say that she has a commitment to follow Supreme Court precedent, that she understands and appreciates the role of a circuit judge, that she will adhere to statutory text, that she has no ideological agenda.

That young lawyer was Brett Kavanaugh. Already a seasoned political operative who knew how dangerous it would be for a Republican nominee to be candid, he would later follow his own advice. And I’m sure if Barrett asked him, he’d tell her the same thing: Whatever you do, don’t be honest about what you really believe.

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