When discussing issues, legislation and legal wrangling in our government, far too often the human element of those who make up our governmental branches gets lost in the analysis. But it is often that the most enormous shifts occur not on a matter of fact, but on a matter of ego or personal experience.
We are a government of laws, but it is the men and women who interpret them, who write them, and who advocate on behalf of various interpretations on each side of conflicts who brings those laws to life.
This can be especially true at the highest levels of the federal bench, where judges are routinely asked to craft opinions based on the ramifications of the law and the facts, but where passionate arguments can be swayed with a single phrase or spun-out conclusion that grabs the attention of the bench. The rarified air of the Supreme Court of the United States and its insular practicing bar and clerk pool has always been the holy grail of legal practice — what every lawyer with constitutional aspirations wants to attain, but very, very few ever do so over the course of a lifetime.
The portrait which emerges from Supreme Conflict is a rough-and-tumble glimpse into the inner sanctum of the Court — from Scalia’s sharp elbows to Thomas’ tin social ear to Roberts’ genial naivete in his first year as Chief. And I could not put it down.
The stakes in each new judicial appointment to the SCOTUS could not be higher, especially at a time when divisions are so sharply defined on both sides of the political divide. Supreme Conflict’s background on the ebbing and flowing of sentiments on the Court shifting with each appointment is most keenly detailed with the story behind the social missteps of the newly appointed Clarence Thomas, and his alienation of the key justices on whose hopes conservatives had set themselves — Justices O’Connor and Kennedy. And it was this disappointment in shift, and the subsequent successes of the Clinton years at placing the sharply intellectual yet socially skilled Justices Ginsberg and Breyer on the bench that cemented a conservative strategy that was not countered by the interests of the left in subsequent years.
Meet Leonard Leo of The Federalist Society:
Shortly after Bush asked Roberts to be chief justice, [William] Kelley and [Harriett] Miers met with the Federalist Society’s Leonard Leo in Miers’ office in the West Wing. Leo, the executive vice president of the conservative legal group, had taken a leave of absence from his job so he could work full time on judicial nominations, and he met often with White House officials, particularly Kelley, to discuss prospects and strategy. Leo was responsible for representing the views of judicial conservatives, while Jay Sekulow, the well-spoken general counsel of the American Center for Law and Justice, who argued religion cases in the Supreme Court, represented the views of social conservatives….
Dozens had gone through media training at the Mayflower Hotel with an outside public relations company, the same firm that produced the controversial advertisement by the Swift Boat veterans against presidential nominee John Kerry during the 2004 presidential race. Of the more than two dozen originally on the list who had planned to forcefully defend Bush’s nominee to the media, only a handful concluded they were willing to speak out in support of Miers [once she was nominated]….
Who paid for this media training? A plethora of conservative legal interest groups, all of whom were willing to put their time and money on the line to achieve these objectives. This is a long-term strategy to place ideologically conservative judges on the federal bench, to implement conservative policy objectives from underneath judicial robes. It is a policy in set into motion since Ed Meese took the DOJ helm during the Reagan Administration, long before Robert Bork’s confirmation hearings went awry.
…Meese trumpeted "originalism," a way of interpreting the Constitution that limits a judge’s focus to the document’s exact words and the original understanding of its meaning. The only rights and originalist judge will typically recognize are those specifically mentioned in the Constitution’s text. Under this restrictive approach, cultural and social issues would be decided not in courts but in legislatures, which conservatives say are better suited to implement the people’s will….
"The stakes here are immense — whether or not this President can leave behind a Supreme Court that will carry forward the ideas of the Reagan Revolution into the 21st century," Patrick Buchanon, the White House communications director, wrote in a 1985 memo to Donald Regan, Reagan’s chief of staff. Political advisors like Buchanon also knew that a successful Supreme Court nomination would bring other rewards, including a chance to score political points with the conservative groups that turn out to vote on election day.
But what movement conservatives and political ideologues miss is this: the personalities and histories of the people appointed to the Court are not static, they are fluid. The Roberts Court is in its second year, and has resulted in a number of very conservative roll-backs in civil rights, labor and other areas of the law compared to prior years. But will this hold, given that this was also the pattern of decision-making in Justice Kennedy’s first couple of terms?
And will liberal legal interest groups unify on their objectives, rather than fracturing their message, with the fundraising potential of each new nomination taking precedence for far too many groups instead of fighting hard for more moderate or liberal justices being placed on the bench?
With the next election cycle, a new president will likely have at least one, if not more, opportunities to reshape the Court with another new appointment should Justice Stevens or Ginsberg or Souter decide to step aside. And, if so, as the Thomas and Souter nominations especially have shown, those appointments can have far-reaching, unintended consequences.
With that, I want to welcome Jan Crawford Greenburg and open the floor for discussion on Supreme Conflict.