Tuesday, July 10, 2018

The New York Times Welcomes Brett Kavanaugh

Welcoming committee at the Baroque city of Karlskrona in southeast Sweden, via Cruise Baltic,
David Brooks getting first in line for the New York Times parade of greetings on the Supreme Court nomination of Brett Kavanaugh ("It Took a Village to Raise Kavanaugh") is really adorable, in the way you can figure out how he proceeded to write it: knowing somebody was going to get named yesterday, he wrote one of his book report columns with blanks in the first two paragraphs—
In the weeks ahead, we’re going to spend a lot of time going over _______ _______’s biography — where he’s from and what he’s written. But that’s not the most important way to understand the guy.
_______ is the product of a community. He is the product of a conservative legal infrastructure that develops ideas, recruits talent, links rising stars, nurtures genius, molds and launches judicial nominees. It almost doesn’t matter which Republican is president. The conservative legal infrastructure is the entity driving the whole project. It almost doesn’t even matter if _______ is confirmed or shot down; there are dozens more who can fill the vacancy, just as smart and just as conservative.
—and then, when the announcement came out last night, filled in the blanks with Kavanaugh's name and filed the piece. It works, in its way, because "the best way to understand the guy" is to realize that it doesn't matter who it is; it will turn out to be is a product of the same cookie cutter created in the 1980s, as described by Steven Teles in The Rise of the Conservative Legal Movement: The Battle for Control of the Law (2009), which is the subject of Brooks's book report for today.

(Though it's pretty startling, if true, that Kennedy may have demanded the naming of Kavanaugh as a condition of his retiring, and  the whole reality-show drama of selecting the justice nothing but a pantomime for which the fix was long since in.)

Not that I suspect Brooks of having even looked at the book; I think he's working mainly from a 2008 review by R. Shep Melnick in the Claremont Review of Books, with a little assistance from a 2014 essay by Frederick Hess for the American Enterprise Institute urging rich rightwingers to donate to schools of education and help remodel teacher training the way the Federalist Society remodeled law school and one or two sources I can't identify. It's a bit of a David Brooks Plagiarism Watch situation:
Melnick: Most important was the transformation of law schools. This was the result of two generational shifts: first, New Dealers became the leading lights in major law schools.... Teles also shows how foundations, especially the Ford Foundation, helped build a broad network of liberal public interest law firms.
Brooks: Back in the 1970s, the legal establishment was liberal. Yale Law School was the dynamic center of liberal legal thinking. Lawyers who had begun their careers during the New Deal were at the height of their power and prestige. The Ford Foundation funded a series of legal aid organizations to advance liberal causes and to dominate the law schools.
Teles devotes two chapters to conservative public-interest law firms: one to the failure of the business-orientated organizations created in the 1970s, and another to more successful second-generation groups, particularly the Institute for Justice (I.J.) and the Center for Individual Rights (CIR). The first generation—regional organizations such as the Pacific Legal Foundation and the Mountain States Legal Foundation—was a business-dominated response to the success of liberal public-interest law firms. They resisted specialization, focused primarily on writing amicus briefs in cases of interest to their business patrons, and remained distant from Beltway politics.
As Steven Teles notes in “The Rise of the Conservative Legal Movement,”the first conservative efforts to stand up to the left failed. Business groups funded a series of conservative public interest law firms. But the business groups had no intellectual heft, they were opportunistic and they had zero moral appeal.
In a perceptive and scathing memo widely circulated among conservative foundations, Michael Horowitz (soon to become legal counsel for the Office of Management and Budget in the Reagan Administration) charged that the tactics of these regional organizations gave credence to their opponents' claim that they were little more than shills for business interests. Horowitz argued that in order to "undermine the claim that liberals represented a trans-political public interest," conservatives must insulate themselves from the demands of business leaders—who are often more interested in getting goodies from government than in defending free markets—and above all, find ways to attract idealistic young lawyers. The key was to pursue cases that "would associate conservatives with the underdog, individuals unjustly treated by large institutions, while simultaneously associating the Left with malevolent, unresponsive concentrations of power."
Brooks: First came the critique. In 1980, Michael Horowitz wrote a seminal report for the Sarah Scaife Foundation [Hess: "In 1980, Michael Horowitz penned a seminal report for the Sarah Scaife Foundation"], explaining why conservatives were impotent in the legal sphere. Horowitz suggested, for example, that conservative legal organizations pick cases in which they represented underdogs against big institutions associated with the left.
Can't think of a good reason for going on with this, can you? It's a pretty interesting story, though, and you should by all means read the Melnick review.

Monsignor Ross Douthat, Apostolic Nuncio to 42nd Street, seems to have waited until the nomination announcement to produce his take, with some great bluff punditry: Kavanaugh will be easily but narrowly confirmed, the Court will move to the right or not, perhaps both at the same time,
if Kavanaugh is even somewhat Roberts-esque (as his detractors on the right have feared) in his approach, you could end up with a court that is more conservative but also more cautious than the Kennedy-era court, which had a swing justice more likely to go all-in for whichever side he swung toward.
and he may help overturn Roe v. Wade or he may help preserve it, but either way you can be sure it will be very important:
here Kavanaugh’s elevation does promise to be a watershed — for the wider culture war if he (and Roberts) join Justices Thomas and Samuel Alito and Neil Gorsuch to overturn Roe v. Wade and Planned Parenthood v. Casey, and for internal Republican Party politics if he (or Roberts) imitate Kennedy and save abortion rights instead.... One way or another, after Brett Kavanaugh, the politics of abortion will never be the same.
There's a bit of a blackmail threat in there—nice little party you have there, shame if you let some atheists horn in and force me to destroy it:
if another Republican appointee writes another opinion that limits but still preserves a constitutional right to terminate unborn human lives, then the party unity that I expect around the Kavanaugh nomination will never be repeated, rebellions and disillusionment will divide the right’s legal coalition, and pro-life voters will never trust the legal establishment’s promises again.
You decide how frightened the Republican hidden masters need to be of Ross's power of annihilation, but as far as I know he doesn't even have the Pope's divisions.

Lastly, Akhil Reed Amar of Yale Law School (where he taught Brett Kavanaugh) offers "A Liberal's Case for Brett Kavanagh" consisting mainly of pointing out that the Democrats can't do much about it but maybe if they all voted for Kavanaugh, who is after all qualified, that would help to heal the "broken process" etc. and I think we've heard this before ("The Senate could become a venue for serious constitutional conversation, and the nominee could demonstrate his or her consummate legal skill" only if all the Republicans left, and we'd all get a pony too). Plus the nominee isn't as pig-ignorant as Antonin Scalia:
an “originalist” judge — who also cares about what the Constitution meant when its words were ratified in 1788 or when amendments were enacted — cannot do all the historical and conceptual legwork on his or her own. Judge Kavanaugh seems to appreciate this fact, whereas Justice Antonin Scalia, a fellow originalist, did not read enough history and was especially weak on the history of the Reconstruction amendments and the 20th-century amendments.
That's certainly reassuring! Um.

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