In the weeks ahead, we’re going to spend a lot of time going over the biography of U.S. Supreme Court nominee Brett Kavanaugh — where he’s from and what he’s written. But that’s not the most important way to understand the guy.
Kavanaugh 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 Kavanaugh is confirmed or shot down; there are dozens more who can fill the vacancy, just as smart and just as conservative.
This community didn’t just happen; it was self-consciously built. If you want to understand how to permanently change the political landscape, it’s a good idea to study and be inspired how it was done.
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.
Even Republican Supreme Court picks like Harry Blackmun and Sandra Day O’Connor tended to drift left because the prevailing winds in the whole profession were strongly heading that way.
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.
Then things began to turn around.
First came the critique. In 1980, Michael Horowitz wrote 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.
Then came the intellectual entrepreneurs. Aaron Director of the University of Chicago Law School inspired many of the thinkers — like Ronald Coase and Richard Posner — who would create the law and economics movement. This was a body of ideas that moved from the fringes of American legal thought to the very center. This movement was funded by groups like the John M. Olin Foundation, which was willing to invest for the long term and not worry about “metrics” or “measurable outcomes.”
Then came the network entrepreneurs. In 1982, a group of law students including Lee Liberman Otis, David McIntosh and Steven Calabresi founded the Federalist Society, which was fundamentally a debating society. They could have just hosted events with like-minded speakers, but debates were more interesting and attracted better crowds.
The Federalist Society spread to other law schools and beyond pretty quickly. It turned into a friendship community and a professional network, identifying conservative law students who could be promoted to fill clerkships.
As Teles points out, the key features of the Federalist Society were the limits it would put on itself. It did not take stands on specific policy issues. It did not sponsor litigation on behalf of favorite causes. It did not rate judicial nominees the way the American Bar Association did. It did not go in for cheap publicity stunts, like the Dartmouth Review crowd of that era did.
It wielded its immense influence indirectly, by cohering a serious, disciplined community and letting it do the work.
Otis, McIntosh and Calabresi all went to work in the Reagan administration. They are now part of a vast army of conservative legal cadres, several generations deep, working throughout the system or at organizations like the Center for Individual Rights and the Institute for Justice.
The conservative legal establishment is fully mature. Trump bucked the conservative foreign policy establishment and the conservative economic establishment, but he’s given the conservative legal establishment more power than ever before, which is why there are so few never-Trumpers in legal circles.
As establishments mature they begin to fracture. As Teles mentioned to me in an e-mail, all of the judges on any GOP list are going to be skeptical of Roe vs. Wade, but Federalist Society types are now divided on many of the issues coming to the fore: criminal justice reform, executive power and the constitutionality of the administrative state. The members often break down on libertarian vs. conservative lines or — as we saw in the behind-the-scenes jockeying recently — between social conservatives (for Amy Coney Barrett) and establishment conservatives (for Brett Kavanaugh).
I’d be surprised, though, if any of these splits fundamentally disrupted this establishment. The people who built the conservative legal establishment built a community over several decades — with deep roots and strong fraternal and professional bonds.
It’s a lesson for everybody. If you emphasize professional excellence first, if you gain a foothold in society’s mainstream institutions, if you build a cohesive band of brothers and sisters, you can transform the landscape of your field.