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Why did John Roberts Jr. glide through the Supreme Court confirmation process while Harriet Miers’ nomination disintegrated, never even getting that “up-or-down vote” the Republicans say all nominees are entitled to? Hint: The real answer does not mainly involve gender, IQ, school credentials, or cronyism. Instead, the past six months of Supreme Court politics have taught a clear lesson in the unrequited yearning of President George W. Bush’s core constituency. For 25 years, Republican conservatives have pushed to fill the federal courts, particularly the Supreme Court, with judges who share their philosophy: limited federal powers, protection of private property, opposition to abortion and affirmative action, and support for so-called traditional values. With the presidency and the Senate on their side, this committed and valued wing of the Republican Party was unwilling to settle for a nominee who was not a predictable vote for their agenda. They had labored too long and endured too many bitter disappointments. Now the politics and the opportunity aligned perfectly, and they would not be denied. Roberts was a sure thing. And though Bush may have known her heart, Miers was not. Roberts was smart and relatively young, but, most important, he had spent much of his professional career marinating in the juices of social conservatism and working alongside the movement’s principal figures. Roberts was perfect. To understand the intensity of the movement, we turn back to the Reagan presidency. Ronald Reagan assumed office in 1981 with a clear social agenda. And although other presidents had targeted the courts (Richard Nixon wanted law-and-order judges, Franklin Roosevelt wanted supporters of New Deal legislation), Reaganites saw the courts as central to their revolution. By packing the federal bench with dedicated conservatives, they could alter the social and political landscape — for a very long time.
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They made a list of Supreme Court decisions in need of reversal, most notably Roe v. Wade (1973). Other rulings — the ban on prayer in public schools, First Amendment protection of pornography, and the expansion of federal powers over the states — made the roster as well. The central qualification for Reagan judges was a reliable conservative ideology. Youth mattered too. The younger the better. Reagan delegated to a group of dedicated conservatives within the White House and the Justice Department the task of gathering the names of appropriate judicial candidates. Law professors were recruited into the crusade. Young lawyers were nurtured and advanced through top jobs in the White House and the Justice Department. The conservative Federalist Society, founded in 1982, became the network for law students seeking access. Reagan had considerable success in altering the balance in the lower federal courts. He created a farm team of eligible jurists in waiting, ready to be called to the higher courts. But from the conservatives’ point of view, he had only mixed success with the Supreme Court. To fulfill a campaign pledge to name a woman, Reagan’s first appointment was Sandra Day O’Connor, a conservative but not clearly dependable on all core issues. Some conservatives worried, with justification as it turned out, that she wasn’t sufficiently opposed to abortion. Reagan then elevated Justice William Rehnquist to chief justice and filled his spot with Antonin Scalia. That triumph gave way to disappointment the next year when the Senate rejected Robert Bork, and the next nominee faltered because he had smoked pot while a law professor. By then needing a candidate who would definitely be confirmed, Reagan turned to Anthony Kennedy. Kennedy’s conservatism had a libertarian streak, and some conservatives feared that he would be unreliable on core issues. Again, they were right. Kennedy has voted to uphold the right to an abortion, to strike down criminal laws against homosexual sodomy, and to ban school prayer at graduations. Under President George H.W. Bush, the prize of a truly conservative Supreme Court continued to elude the right. Although Bush chose Clarence Thomas, he also named David Souter, who has turned out to be one of the most liberal justices on the current Court. After the wilderness years under Bill Clinton and the election of George W. Bush, conservatives’ hopes surged again. Again, the president’s lower court nominees seemed fine: Of Bush’s first 11 picks to appellate courts, eight were Federalist Society recommendations. And finally O’Connor, the swing voter, announced her retirement. After 25 years, core conservatives had no tolerance for chance, and so Harriet Miers crashed and burned. What lesson might we learn from all of this for the next high court nominee? Because social conservatives back Judge Samuel Alito Jr., we know they consider him a sure thing. Their support is our assurance. No matter how moderate and temperate Alito might appear at his confirmation hearings, no matter how he explains his past — “it was only a job application,” “I was only representing a client,” “that was a long time ago,” “my views have changed,” “I will (mostly) follow precedent” — the conservatives have already determined that Alito will be a reliable vote in their crusade. He is a finished product of the conservatives’ 25-year effort to capture the Court.


Mary M. Cheh is the Elyce Zenoff research professor of law at George Washington University.

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