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Monday, June 06, 2016

The Year of the (Legal) Establishment

If there is one political thread that has been covered endlessly, it is that the Establishment has had a rough year.  Donald Trump is the presumptive Republican nominee for President, and Bernie Sanders has been doing quite well in the Democratic presidential primaries. For the legal establishment, though, the year 2016 has been quite good.

Trump did not feel the need to provide a list of prospective nominees for other important positions if he wins, but he did provide a list of potential Supreme Court nominees.  A man whose entire brand is based on being his own man making his own decisions said that he got his list by consulting with the Heritage Foundation.  His list is fairly Establishment by almost any measure.  Sure, it includes state judges, and sure, it includes people who did not graduate from Harvard or Yale.  But every single one of his nominees is highly credentialed by and connected with the conservative legal elite.  No Roy Moore, no elected officials, no obscure judges.

Consider legal Establishment life on the other side of the aisle.  President Barack Obama gets to nominate someone to the Supreme Court to be the potential deciding vote for a generation.  He nominates a federal judge whose background with and connections to the legal Establishment rival any judge's (or lawyer's) in the entire country.

Why has the year played out like this? Is it because the political forces generating anti-Establishment energy generally just do not care about Supreme Court vacancies? Is it because the political forces generating anti-Establishment energy generally are still fairly Establishment, in the sense that their off-the-wall nominees are still very much on-the-wall?

Posted by David Fontana on June 6, 2016 at 05:41 AM | Permalink


Cent, your idea of UCLA, Duke, or NYU as a source of justices shows a disappointing lack of imagination. Hugo Black and Robert Jackson did pretty well going to night school and Albany respectively.

Posted by: PaulB | Jun 6, 2016 11:17:35 PM

Thank you for these great comments! The phrase "Establishment" is a slippery term with a long history. NPR had a great history of the term a few months ago. I am using "Establishment" not as a description of one's location on the ideological spectrum, but rather as a description of one's connection to the established power structure--in this context, the legal power structure. Every single one of the Trump nominees has credentials that indicate they are part of the established legal power structure. Many of them had clerked for the Supreme Court; others are judges on the federal court of appeals or the highest court of their states. There are thousands of judges in the country, and over a million lawyers. It is hard for me to think of any definition of the established power structure that would exclude federal judges or state supreme court justices. Those who want a nominee from outside of the Establishment would want an obscure state judge perhaps; a lawyer you have never heard of; a politician you have never heard of; or so on. None on the Trump list fit that bill.

I think the Trump list is indicative not because it is predictive. It is indicative of the strong political need he felt to respond to the conservative legal Establishment. He did not feel this need to respond to the established power structure on other issues (the economic insiders, for instance). It is also indicative of the strong political need he felt to respond to the conservative legal Establishment with the types of names that they would appreciate--or at least respect.

Posted by: David Fontana | Jun 6, 2016 6:53:14 PM

Since the early 80s, Supreme Court appointments have been highly "Establishment." The last 12 SCOTUS appointees attended either Harvard, Yale or Stanford (O'Connor and Rehnquist have been the only 2 "trees"). Sure, RBG transferred to Columbia, but that's # 3 in terms of all time SCOTUS feeders- not necessarily venturing too far from the customary schools.

There was much greater diversity in the past when it came to law schools of appointees. Maybe it's the result of the elevated pedigree required to get on SCOTUS track? Surely getting 1 law school graduate from either UCLA, Duke, NYU, or maybe a couple more from UT-Austin or Berkeley isn't going to jeopardize the Court. Makes me wonder if we're barring future Warrens (Berkeley) or Stevens (Northwestern) from the Court.

Posted by: Cent Rieker | Jun 6, 2016 3:22:51 PM

I took Establishment to be unconnected from "Establishment conservative" and instead be used in the sense of part of the credentialist legal elite.

Donald Trump has never been a Cabinet Secretary, Governor, or Senator. One or more of those jobs were seen in recent decades as de facto job requirements for the job of President. Yet when he published a list of potential Supreme Court nominees there are no Donald Trumps on it.

Robert Rowling has a JD. That would have been a non-establishment pick for the list in the relevant sense even though he is an establishment conservative.

Posted by: john | Jun 6, 2016 3:15:02 PM

I agree that presidential electoral politics look very different from judicial nominations. The simplest explanation of this is that voters pick presidential nominees, with increasingly little (though still substantial) influence from party leadership, while presidents pick and senators confirm judicial nominees. If presidents were still nominated by parties and elected by unbound members of the electoral college, presidential politics would be pretty different. And if Supreme Court Justices were elected, they'd look very different. As is, judicial nominees look a lot like nominees to the top Cabinet departments and agencies, because they're selected and confirmed in just the same way. The fact that people like Geithner or Paulson or Bernanke or Yellen become treasury secretaries or chairs of the Fed in spite of a lack of popular appeal doesn't suggest that voters don't care about what the Treasury Department or Fed does, but rather that voters have very little say in the matter. Because they're excluded from the process, voters don't and can't effectively rally around potential nominees; their policy preferences are taken into account in nomination and confirmation, but fairly weakly.

You may say that Trump's list shows that only elites care about judges; if "ordinary" voters cared, we'd see a more populist list. As it happened, the purpose of the list was solely to signal to elites, suggesting that they're the only ones paying attention. That's true at some level; only elites know who these people are. But given the lack of voter participation in the confirmation process, it would be highly irrational for non-elites and non-lawyers to follow individual lower-court judges enough that they know who Raymond Kethledge is. That doesn't show that voters don't care what the Court does, anymore than widespread ignorance of Janet Yellen's name or background is good evidence of mass popular indifference to interest rates.

Posted by: Asher Steinberg | Jun 6, 2016 12:08:58 PM

David, can you say more about what it means for a judge to be an "Establishment" judge?

In recent political parlance, the GOP "Establishment" has traditionally meant something like "moderate" or "non-movement conservative." Here, though, you seem to be using Establishment in almost the exact opposite way to mean something more like "connected to the conservative movement." Depending on which definition you pick, I think there are those on Trump's list who don't fit -- for example, Willett under the first definition, and Hardiman under the second -- but I think it depends on how you define "Establishment" in the context of judges.

I also think Trump's list was meaningless as a predictive matter -- the point was to persuade those on the right who care about judges to support Trump -- but that's another question.

Posted by: Orin Kerr | Jun 6, 2016 10:40:44 AM

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