03.15.22

The Scheme 13: Auditioning

Mr. President, I rise again to discuss the scheme that has captured and now controls America’s Supreme Court.

If you have been following this series of speeches, you know that we have gone over the Powell memo and the plan it laid out for the corporate rightwing. We have gone over the technique of Agency capture, regulatory capture, that has been applied to the Supreme Court. We have gone over the turnstile, that big anonymous rightwing donor setup within the Federalist Society to approve Republican nominees and the dark money front groups that sped those nominees through Senate confirmation. And we have discussed how the big rightwing donor interests influence Justices while they are on the Bench, through fast lanes for dark money litigation and flotillas—flotillas—of dark money amici curiae, front group amici.

Well, if you set up a machine like that, you will pretty soon see Justices auditioning for the role. To understand the origins of this auditioning, you need to start with a little bit of history.

It is 1990, and President George H. W. Bush needs to fill a vacancy left by the legendary Justice William Brennan. President Bush appoints a recent First Circuit nominee named David Souter, who had spent most of his career in New Hampshire State government.

At the time, Republicans thought Souter’s short time on the Federal bench was an asset. Without a long paper trail, there was less chance that Souter’s nomination would go down in flames, like Robert Bork’s had.

But Souter wasn’t the conservative the rightwing hoped for. Indeed, he could be down-right moderate. In their disappointment, they adopted a new mantra: ‘‘No More Souters.’’

When rumors got around that George W. Bush might nominate his White House Counsel, Alberto Gonzales, to the Court, he was not seen as rightwing enough, and the scheme panicked and the mantra became ‘‘Al Gonzales is Spanish for ‘David Souter.’’’ John Paul Stevens was another rightwing disappointment. So ‘‘No More Souters’’ as a mantra was joined by ‘‘No More Stevenses.’’

With these disappointments, the rightwing donors and their Federalist Society accolades vowed to better groom and vet future candidates, scouring Republican nominees’ records for maximum adherence to Scheme orthodoxy.

Well, once that process was up and operating, the response was predictable. Ambitious rightwing lawyers aspiring to the Federal Bench aren’t dumb. They will follow the path that guides them to their goal. So the maximum adherence auditioning began. I have described the circuit court judge who observed his colleagues taking cases and issuing rulings that seemed to have the clear intent of sending a signal. They strained to write decisions that were dressed to impress. They were, in his word, ‘‘auditioning’’—auditioning for the Federalist Society gatekeepers.

So how exactly does this auditioning work? There is a recipe:

One, you have got to understand what matters to the big donors: guns, unbridled campaign spending, corporate political power, shrinking the so-called administrative state, and rightwing social issues.

Two, fly solo. It can actually help if you go it alone. Write opinions so extreme that they stand out and donors take notice.

And, three, of course, where you can, deliver the goods. If a case allows you to score a win for a big donor interest, take it.

Three Justices who knew this recipe well were the trio nominated by Donald Trump.

As a circuit court judge, Neil Gorsuch became a darling of the rightwing donor elites for his commitment to dismantling this so-called administrative state. To do that, he deployed radical legal theories cooked up and propagated in the scheme’s legal theory hothouse, where they developed schemes, kind of reverse-engineering them to give victories in cases.

In one instance, Gorsuch even wrote two opinions for the same case: one, the majority opinion that his colleagues joined; and the other, an out there solo opinion displaying his scheme bona fides.

Gorsuch also displayed his fervor for what he called religious freedom, which usually translates to dismantling the separation between church and State, which is another scheme favorite.

Justice Amy Coney Barrett knew how to audition too. In one case, Barrett’s Seventh Circuit Court of Appeals declined to hear a challenge to an Indiana law on women’s right to choose. Barrett bucked the majority to stakeout an eyebrow-raising position on the right, joining a dissent aimed directly at Supreme Court abortion precedent.

On guns, Judge Barrett authored an opinion in a Second Amendment case called Kanter v. Barr that would have given a felon back his gun because his felony wasn’t violent. Constitutional scholars’ jaws hit the floor at that one.

Adam Winkler, a Second Amendment expert at UCLA Law School, told the New Yorker that the opinion was ‘‘Amy Coney Barrett’s audition tape for the Supreme Court.’’ And it was her audition tape because her ‘‘view of the Second Amendment [was] outside of the mainstream’’ and ‘‘would appeal . . . to the Federalist Society.’’

Of course, the biggest auditioner of all was Brett Kavanaugh. On the DC Circuit, Kavanaugh did so much auditioning it is hard to know where to begin. He issued opinions on abortion, on guns, on the administrative state, on campaign finance, and more. He was not concerned with building consensus. He wanted to make a point.

Here is Washington Post editor Ruth Marcus in her book on Kavanaugh: “His more liberal appeals court colleagues found him affable but unyielding. He would engage but rarely, if ever, change his mind, [and he] displayed a propensity for filing separate concurrences and dissents, actions that some colleagues took as judicial grandstanding and, more to the point, an effort to position himself for a Supreme Court seat.”

Auditioning—in fact, Kavanaugh dissented more each year on the bench than any of his DC Circuit colleagues, whether Republican or Democratic appointees.

Kavanaugh made clear that he would be on the team if on the Court. Kavanaugh pumped up the ‘‘major questions’’ doctrine—one of the hothouse legal theories pushed by the far right. It says that courts should ignore an Agency’s authority to solve a problem if the court thinks the problem is too big. Big regulated companies love having regulatory Agencies hobbled. So this was catnip for scheme donors.

The majority in that case panned Kavanaugh’s ‘‘major questions’’ idea, which hadn’t even been raised by the parties, but Kavanaugh wasn’t out to win votes from his colleagues, and he wasn’t out to do justice in that case. He was firing an auditioning flare for scheme operatives and donors to see from miles around.

Like Barrett, Kavanaugh did his own publicity. He spoke at 52—count them, 52—Federalist Society events over his career. You almost couldn’t keep him out. And he wasn’t the only one seeking an audience with the Federalist Society donor elite. After Trump’s election, 9 of the 21 people on Trump’s short list spoke at a 3-day Federalist Society panel dedicated to remembering Justice Scalia, and almost all the others were hanging out, mingling in the crowd. It was a judicial beauty pageant, with some real beauties.

Kavanaugh had a little problem. He wasn’t on Trump’s first list of potential Supreme Court picks, and he wasn’t on the second list either. But all that eager auditioning got him onto the third list, and the rest is history.

I am not alone in noting all this auditioning. Here is how one writer for Slate paraphrased former U.S. District Judge Nancy Gertner about scheme auditioning:

“[C]onservative judges auditioning for SCOTUS— Supreme Court of the United States— go all out proving their Federalist Society bona fides: Gorsuch used his judicial opinions on the appeals court to advertise himself as an enemy of the administrative state and a diehard proponent of religious freedom; Kavanaugh flaunted his support of the unitary executive and hostility to reproductive rights to earn a spot on President Donald Trump’s short list; Amy Coney Barrett brandished her Second Amendment maximalism.”

As the Slate writers note: “The conservative legal movement rewards this kind of flagrantly ideological auditioning. Republicans demand evidence that their justices will aggressively overturn precedent and laws that conflict with their political goals.”

As I said earlier, ‘‘no more Souters,’’ ‘‘no more Stevenses.’’

That is the auditioning by these sitting Justices.

I will close my remarks with an example of what happens when you haven’t auditioned for the Scheme.

When Justice Sandra Day O’Connor announced her retirement, George W. Bush wanted to replace her with his friend and loyal White House Counsel, Harriet Miers. Miers was a dyed-in-the wool conservative. She had served Bush and his inner circle faithfully. But she wasn’t a Federalist Society insider. She didn’t have a record of auditioning for the big donors behind the Federalist Society’s turnstile. She couldn’t soothe those rightwing donors that she was ‘‘no Souter,’’ ‘‘no Stevens.’’ Her sin wasn’t anything in particular; she just wasn’t part of the club.

As Supreme Court scholar Amanda Hollis-Brusky put it: “The message Leonard [Leo] and others had sent was: If you want to rise through the ranks, we need to know you. And that’s what they were all saying about Miers—‘‘We don’t know her. She is not one of us.’’’

Leonard Leo, by the way, is sort of the spider at the center of the web of donor interests that drive the turnstile at the Federalist Society during Republican Presidencies.

We are now embarking on the confirmation process of someone who has not auditioned to donor elites for a seat on the U.S. Supreme Court. No dark money machine guided her selection. That is refreshing.

Still, the auditioning continues on the right for the next time a Republican President holds office. Scheme donors expect standout candidates who wear their commitment to their donor welfare on their sleeves. Watch closely for more.

To be continued.