Thread by @brendanmdunn

So, with a South Lawn Ceremony for the swearing in of #AmyConeyBarrett, a few thoughts on how we got here...here being a point where 6 members of the Supreme Court have a generally reliable commitment to an originalist theory of constitutional interpretation.

Obviously, this political/legal development is inseparable from some of the most divisive moments in our recent political history.

But I'm going to do my best to play this straight.

During the #ACB hearing at Senate Judiciary, Senator Durbin lamented a loss of Senate comity that allowed for the near unanimous (and unfilibustered) confirmations of Justice Scalia and Justice Ginsburg.

The Scalia nomination is a good place to start....maybe better than Bork.

Scalia gets confirmed in 1986, and had made his way onto the DC Circuit (the farm team) in 1982, early in the Reagan Administration.

To put this timing in perspective, Roe is only 13 years YO and the constitutional revolutions in criminal procedure are roughly similar in age.

It is the equivalent of us looking back today had constitutional revolutions begun early in the Obama Administration.

The world that Durbin looked back on fondly was the world that delivered those decisions. The judicial interpretive/ideological divides that generally track with the two parties today, did not exist in the 1950s/1960s/1970s.

Because of this, nominees not only were confirmed no muss/no fuss, but they were not really vetted for ideology.

Hence, the Ike pick of Brennan without regard to judicial philosophy, but with an eye toward the political impact of picking a Catholic nominee.

In the meantime, the Court begins to gain self-confidence. The legal academy, the bar, and the courts see Brown v. Board as a critical component of the civil rights revolution, a revolution that would not have occurred but for Brown.

More than anyone, Justice Brennan articulated a judicial philosophy that would support this more aggressive judiciary. In short, he argued forcefully (if not convincingly) that the judiciary was the best suited of our institutions to resolve intractable policy disputes.

It is barely going too far to say that he viewed the judiciary in classical philosophical terms -- philosophic guardians or a natural aristocracy, who could divine the just and good, where political institutions failed.

NOTE: This is the theory of the judiciary articulated in the CASEY "Joint Opinion" -- authored by three GOP nominees and upholding ROE in 1992. As much as the outcome, the embrace of this interpretive theory grated for legal conservatives.

By the late 1960s and 1970s, conservatives realize they have a problem on their hands. A compelling Brennanite institutional / legal theory is running all over the field, and the GOP has been paying little attention to the philosophical/institutional beliefs of its nominees.

Richard Nixon nominates Harry Blackmun in 1970. How did he get there? Think Harriet Miers coupled with John Sununu/Souter. He's a practicing business lawyer in Minnesota / Counsel at Mayo (Miers), and his buddy Warren Burger (John Sununu) tells him he should be a judge.

Like it is a patronage job.

But Nixon nominates him, and he proceeds to author ROE three years later and become a liberal judicial lion for decades.

The Rehnquist nomination is the Empire Strikes Back.

Faced with an opening in 1972, Nixon nominates Rehnquist, the Assistant Attorney General at OLC. Haldeman described him as "way to the right of Buchanan."

So 14 years before Scalia's nomination (again, basically yesterday when you put yourself into the shoes of the Reagan Administration and Senate Democrats), a Republican Administration makes its first counterpunch to the institutional commitments of Brennanism.

But the development of Senate/Presidential commitments to a Brennan alternative came in fits and starts.

O'Connor is nominated in 1981, with only slightly more consideration of judicial philosophy - and slightly fewer parochial political considerations - than Ike gave to Brennan

However, when Ed Meese took over at DOJ, he began making the case for an alternative to Brennan, giving a speech to the American Bar Association on behalf of originalism, that then provoked a public response from Brennan himself.

Meanwhile, Fed Soc is founded in 1982.

This is the context in which Scalia gets the nod.

1 year after Meese throws down his marker, Burger retires, leading to the confirmation/elevation of Rehnquist as the new Chief, and Scalia to fill the Rehnquist seat.

As Durbin noted, Scalia got a pass. In part this was because it meant something at the time that Scalia was an Italian American. Members of the Senate were tripping over themselves to vote for the first Italian American nominee to the Supreme Court.

But the Rehnquist nomination for Chief gave us a taste of things to come. In an ugly confirmation fight -- one that shared much with the Thomas/Kavanaugh confirmations -- Rehnquist was confirmed, but losing 31 Democrats.

One year late -- 1987 -- Bork gets the nod, and the Senate GOP, the Reagan Administration, and the nominee are caught completely flat footed.

Bork's nomination is immediately and famously rejected by Senator Kennedy on ideological grounds.

His long track record -- and well articulated judicial philosophy -- is rejected by Kennedy, and by the legal bar/academy that supported (encouraged) Kennedy's historic shift in the treatment of judicial nominees.

It's one thing for Meese to give a speech challenging Brennanism, but when a serious critic of Brennanism gets nominated for SCOUTS, Democrats took him down.

And importantly, Bork did not hide from the fight. He owned his views and made his case.

He called life on the court "an intellectual feast" and did not back down from challenging not only Brennanism, but certain of the core philosophical foundations of Brennanism.

So what is the lesson that the GOP takes from Bork -- we need stealth nominees. Apart from a meta discussion of judicial philosophy, there will be zero engagement on the actual philosophy of the Constitution or constitutional law.

And so we get Souter....and then Casey.

It is hard to overstate the psychological impact of CASEY on the conservative legal movement. Less than 20 years post-ROE -- seen as the poster child for Brennanite judicial overreach -- the assumption was that the Reagan/Bush Court would overturn ROE.

Instead, two Reagan noms (O'Connor and Kennedy) and an H.W. nom (Souter) voted to uphold the core of ROE. None of these nominees had been vetted for judicial philosophy, and no GOP nominee without such a vetting would ever be confirmed again.

Meanwhile, Democrats had learned to play the same game. Recognizing the political power of the originalist argument, and the problem with a full throated endorsement of judicial philosophy at a confirmation hearing...

Justice Ginsburg declined to offer any 'previews, hints, or forecasts' at her Judiciary Committee hearing. And as Senator Durbin noted recently, she was confirmed overwhelmingly.

This refusal to engage on the core ? for a judicial nominee -- where he or she stood on the Brennan/Meese spectrum -- created an untenable outcome with Senators forced to support/reject nominees without any public testimony on the single most important issue for any nomination.

But the Ginsburg standard would come to be embraced by Republican and Democratic nominees alike.

And over time, you actually had Democratic nominees (Souter/Kagan) adopting something that sounds like originalism itself.

So what's a Republican president to do?

How to secure oneself against a Souter, when picking from nominees who assiduously avoided a publication track record or public statements that might get them into trouble in a confirmation fight?

By the time W arrived on the scene, there was a good proxy -- prior government service (at Reagan DOJ) or Fed Soc membership -- supposedly served to establish one's conservative bona fides.

However, even this reliance would prove insufficient by the time DJT arrived on the scene

Before turning to the W apostasies that would result in the confirmation of #ACB today, let's turn for a moment to the escalation of the judicial wars in the 2000s.

Don't take my word for it....Here's the New York Times noting the unprecedented systematic effort by Senator Schumer and the Judiciary Committee Democrats to filibuster Republican circuit court nominees.

nytimes.com/2003/11/01/nyr…

President Bush had famously rolled out his first 11 Circuit Court nominees in a White House ceremony that would ordinarily be reserved for a SCOTUS nominee.

This was a signal of the importance of the judiciary and judicial philosophy to Republicans.

Coming off of Bush v. Gore, and with the threat of additional SCOTUS nominees, Senator Schumer abandoned the post-Bork stealth nominee consensus, and insisted that ideology be central to the confirmation process.

Schumer would not put it this way, but oddly, the end result of the Great Meese/Brennan debate, had become a confirmation process focused on personality and professional qualifications, perhaps emptier than the considerations that gave us Brennan and Blackmun.

Schumer rejected the ideologically blind confirmation process that both parties had embraced to avoid Bork-like results. Basically the Ginsburg rule prevented the two superpowers from mutually assured destruction.

But Schumer determined it was worth it to flip the switch.

Those filibusters nearly led to the deployment of the 'nuclear option' by the GOP -- changing the rules on a partisan basis to confirm the nominees and restore Senate practice on the courts (no filibusters).

But a sufficient number of Republicans defied their leadership and put off the inevitable with the Gang of 14 in 2005.

And shortly thereafter, we get the Bush SCOTUS noms.

Roberts was so pedigreed that he emerged largely unscathed from the process. Providing no forecasting of his views on much of anything, he was confirmed overwhelmingly.

However, the Alito nomination would create two critical precedents going forward.

First, he was filibustered (unsuccessfully) and by no less than then Senator Obama.

And second, he was the pick only after the failed Miers nomination.

After years of cultivating law students, government lawyers, circuit court judges, and Federalist Society participants, to pick Miers -- a business lawyer and confidante of POTUS, on the President's say-so and without normal vetting -- reasonably raised Blackmun/Souter flags.

And remarkably, her nomination was pulled due to the objections of Republican senators.

Miers gave us the DJT "list" of nominees. Never again would a Republican President be able to take a flyer on a nomination.

And the filibuster of Alito set the stage for a further escalation of process fights in the Senate.

McConnell -- leaning on the political philosophy of 'what's good for the goose is good for the gander' -- led the filibuster of Obama's circuit court nominees, leading Reid to shoot first (where Frist had failed) and creating a 50 vote threshold for circuit court noms.

And then he:

1) Declined to give Garland a vote; and
2) Exercised the nuclear option on SCOTUS nominations.

So where does this leave us? 30 years after Bork, we are roughly where we started. Filibusters are no longer an option. Procedural efforts to stop judges are no longer available to the minority.

And given the GOP concerns with even Chief Justice Roberts -- concerns manifest in the insistence on the #ACB nomination -- it seems that the days of the stealth nominee might be coming to an end as well.

As was clear in her testimony, and in her statement this evening at the White House, Republican Senators and nominees seem more content to debate judicial ideology than they were in the wake of Bork.

That's probably a good thing. The Great Debate (Meese/Brennan) is worth having. And I'm sure Senator Schumer would be pleased with the outcome. It's exactly what he has been asking for.