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How The Federalist Society Betrayed Conservatives
Who picked this gang of idiots for the Supreme Court?
It seems a hundred years have passed since President Trump picked Brett Kavanaugh and Neil Gorsuch and Amy Coney Barrett to serve on the Supreme Court and started what was supposed to be the Great Conservative Years of the Trump Era. Long after the Donald left office, there was going to be a young gun block of Textualists and Originalists making the liberals cry in decision after decision, and even rolling back Roe v. Wade eventually. Finally, we owned the courts. How wrong we were.
It wasn’t Trump’s fault. He had done his part and turned over the process of selection to the conservative legal movement — and the Federalist Society in particular. Leonard Leo and the other law nerds were trusted to locate a reasonable facsimile of Antonin Scalia, or two, for the new president. This was exactly what Trump was always being blamed for not doing: relying on the experts. We wanted a short list of his judges, and he gave us one. And we were all happy.
Nobody among the conservative establishment wondered if the Federalist Society knew what it was doing. Was Gorsuch actually a libertarian with a soft soft for transgender employment discrimination cases and native Indian property rights? Would he, for instance, suddenly rule that half of Oklahoma was actually a Creek Indian reservation? Would he decide that the term “sex” found in legislation passed in 1964 actually covered sexual orientation and gender identity — which no lawmaker in 1964 would have ever countenanced — and enshrine the LBGT movement’s dearest wishes into law?
Of course not. Not only were these questions not asked, they were not even entertained. They were unthinkable. Gorsuch was considered one of the golden boys of the Federalist Society. Underneath all of that Textualism and Originalism we were assured that there was plenty of Conservatism, and even some Christianity. We were guaranteed that there was bedrock common sense hiding under that Harvard law degree. We were told the Federalist Society existed so that a mistake like David Souter (the infamous George H.W. Bush pick who became a turncoat and voted liberal for decades) would never happen again.
So you can imagine the astonishment and the anger now that Gorsuch has actually turned out to be another Souter. How could that happen? And what else has the Federalist Society got wrong? Let’s see: there’s John Roberts and Brett Kavanaugh and even Amy Coney Barrett is not looking very good these days. So Leonard Leo at least got Samuel Alito right. That’s batting .200 on Supreme Court picks — which means the Federalist Society should be benched. You don’t need to fund an entire legal movement to strike out so many times.
It turns out there’s no discernible legal philosophy among the Federalist Society’s handpicked “stars” either. Just read the dissents. Roberts and Alito and Kavanaugh have no idea what Gorsuch is thinking in McGirt v Oklahoma. Alito and Kavanaugh have no idea what Roberts and Gorsuch are doing in Bostock (except “legislating.”) None of them know why Roberts got it so wrong in the Louisiana abortion case. It’s like a dark comedy show where the liberals keep winning even though they’re outnumbered, and no one can figure out why.
It turns out that a lot of judges pretending to be conservatives are not conservative at all. Roberts will ignore precedent if it hurts the liberals, and cite precedent if it hurts the conservatives. It’s his only consistent trait. Meanwhile, Gorsuch is so hyper literal that he doesn’t care about any precedent — and has partitioned the state of Oklahoma to prove it. Is this Textualism or Originalism? No, it’s chaos. Like I said: just read the dissents.
Did Gorsuch know that he was going to destroy the Federalist Society’s good name with his caprices? It must have occurred to him that no one wanted a Textualist argument for turning Tulsa over to a tribal council while ruling that the rapist of a 4 year old girl should get a re-trial because he got caught by state troopers rather than federal police. What imbecile could rule that way? (It usually takes a Harvard law degree to have so little common sense.) Trump voters wanted fidelity to the Constitution and instead they got incoherent 5-4 decisions, with Gorsuch and Roberts competing with each other to write the majority “liberal” opinion.
The real problem is that President Trump didn’t know who these judges were, and neither did we. Conservatives should not only ditch the Federalist Society but they should go a step further and ditch all the established judges. We should start picking people who are social conservatives and not lawyers. (As one of my journalist friends explained to me: “The American legal community breeds choirboy sissies like Kavanaugh in the same way that Ireland breeds drunks.”) In hindsight, President Trump should have dismissed the establishment entirely and nominated Mark Levin or Dan Bongino: someone who would have irritated the Supreme Court club members for the rest of their lives. Maybe the amateurs will care to uphold the law, rather than subvert it. Don’t tell me that we have to pick people who are more qualified. The qualified people just toppled the conservative legal movement from the inside.