Which is exactly why the Republican Party's guardians of jurisprudential orthodoxy had no intention of entrusting that responsibility to a man as impulsive, erratic and devoid of intellectual principle as the incumbent president.
That Trump would nominate Brett Kavanaugh — or some other facially anodyne conservative with a resume and judicial track record indistinguishable from Kavanaugh's — was ordained more than two years ago, when then-Candidate Trump released a list of 11 sitting judges and pledged that, if elected, he would likely pick one of them to replace the recently deceased Antonin Scalia.
The Trump campaign was originally cagey about the provenance of its original all-white list, which included six federal appeals court judges appointed by President George W. Bush and five state supreme court justices (including Michigan's Joan Larsen) appointed by Republican governors. (The list was subsequenly expanded to 25 names, including former Michigan Supreme Court Justice Robert Young Jr., an African-American whose age precluded him from serious contention.)
But about a year later, after the Senate had confirmed Trump's first Supreme Court nominee, legal journalist Jeffrey Toobin reported that the master list had been provided to Trump by Leonard Leo, the executive vice president and chief judicial talent spotter for the Federalist Society.
Founded in 1982, the Federalist Society is a nationwide organization of conservative lawyers dedicated to incubating, cultivating and promoting originalist lawyers and judges in the mold of Scalia. Buttressed by the support of foundations associated with conservative industrialists like the Koch brothers, John Olin and Richard Scaife, it currently spends about $20 million a year.
For Candidate Trump, the decision to enlist Leo (and, more unconventionally, to publish the roster of pre-approved candidates he provided) was a tonic for the anxiety that had discouraged many conventional Republican voters and donors from embracing the presumptive GOP nominee.
As Leo described it to Toobin, his assignment was to create a judicial "brand" for the nominee — one that would tacitly reassure conservatives that Trump was not relying on his own mercurial judgment to make such a critical decision. In delegating the list, Trump was striking essentially the same bargain contestants on "The Bachelor" or "The Bachelorette" made when they agreed to pick their life partner from a list of candidates prepared by the show's producers.
When Kavanaugh praised Trump's diligence (after accepting the president's final rose in a ceremony televised live in prime time), he was presumably talking about the skill with which Trump, like a princess torn between rival suitors, had cultivated an air of tortured indecision in the days leading up to the thrilling prime-time finale.
But, in reality, Kavanaugh's selection was more like a real estate closing — the consummation of a deal whose essential parameters had been established more than two years earlier.
What we all are in for now is another round of the faux, professional wrestling-style brinksmanship that has characterized nearly every Supreme Court confirmation hearing since poor Robert Bork made the fatal error of actually answering his inquisitors' questions in 1987.
For Leo, who can justly claim credit as the Kavanaugh nomination's executive producer, the hearings themselves will be anti-climactic. "The hearings matter so much less than they once did," he told Toobin after Neil Gorsuch's confirmation in 2017. "We have the tools now to do all the research. We know everything they’ve written. We know what they’ve said. There are no surprises.”
Trump's spokespersons insist that neither the White House nor its proxies have asked Kavanaugh for assurances that he would vote to overturn Supreme Court precedents that enshrine the right to an abortion and same-sex marriage, or support Trump's initiatives to restrict immigration and environmental regulation. Leo makes the same claim, insisting that abortion never comes up explicitly in his interviews with candidates. But, in his interview with Toobin, he added cryptically: "That’s maybe because of the way I ask questions."
For all the liberal alarums, I suspect that America will look much different under a Justice Kavanaugh than under his predecessor — except in the unlikely event that Kavanaugh and four other justices surrender their own profound responsibility, and exalted authority, to say what the law is.
The last great White House scandal is sometimes described as a constitutional crisis. But it never really earned such a melodramatic designation, in large part because a unanimous Supreme Court made clear, in a landmark ruling that forced Richard Nixon to relinquish the evidence that ended his tenure, that even the president is subservient to the law.
Despite his critics' claims to the contrary, Brett Kavanaugh has never challenged that bedrock principle. The current Supreme Court will almost certainly have the opportunity to reassert it, and Trump may yet rue the day he outsourced one of his office's "most profound responsibilities" to people who take the Supreme Court seriously.
Brian Dickerson is the editorial page editor of the Detroit Free Press. You may contact him at [email protected]