Abortion and the fate of Roe v. Wade are always near the center of the debate on any Supreme Court nomination. The controversy over nominee Brett M. Kavanaugh’s views on Roe offers a window into a system conservatives established a few decades ago to produce the kind of justices who would be fervent advocates for their cause, while also being just restrained enough in their beliefs to be confirmed. As a piece of political strategy, it’s absolutely brilliant, and it could hardly be working any better.
Among other things, it allows Republicans to finesse issues such as abortion on which their goals are terribly unpopular; only a third of the public believes Roe should be overturned. So Republicans rather shamelessly make self-contradictory arguments. On one hand, they are emphatically opposed to abortion rights, want to restrict those rights wherever they can, and fervently desire that Roe be overturned. On the other hand, especially when there’s a shift in the court’s ideological balance in play, they try to evade pointed questions about it, pretending that the nominee about whom they are so enthusiastic might not vote to overturn Roe, because you just never know. Recently, Vice President Pence — who is more hostile to women’s reproductive rights than almost any other politician in America — was asked whether he hopes Roe will be overturned, and he answered, “Well, I do, but I haven’t been nominated for the Supreme Court,” as though his feelings, or at least what he would reveal about them, would be different in that case.
Conservative Supreme Court hopefuls know, as they work their way up through the right’s feeder system, that it’s best to keep their views on the subject as muted as possible. You may not be able to claim with a straight face, as Clarence Thomas did at his confirmation hearings, that you’ve never in your life even had a conversation about the most controversial Supreme Court case of the past half-century. But the ideal line to walk is to reassure your compatriots on the right that you’ll be a vote to overturn, while refraining from any direct public comments or rulings that could tip your hand too clearly.
So it is with Kavanaugh. But we have gotten some rather clear hints about where he stands.
As ThinkProgress’s Ian Millhiser explains, last year Kavanaugh gave a speech to the American Enterprise Institute praising William Rehnquist’s dissent in Roe v. Wade and Rehnquist’s insistence that the Constitution does not imply a right to abortion. This is hardly an unusual view — Roe relied on an earlier case finding that the Constitution contains an implied though not explicit right to privacy — but it does remove a good measure of doubt about Kavanaugh’s beliefs. And in the one case concerning abortion he dealt with as an appeals court judge, he charted a path that would have adhered to the letter of Roe (as he had no choice but to do) but would also have circumvented its protections for the plaintiff and likely allowed the government to prevent her from getting the abortion she needed.
But this is all a kind of game. We all know that one way or another, Kavanaugh is going to be a vote to take away women’s right to choose. To pretend otherwise is to be willfully obtuse.
That’s because the right’s system was designed to bring us to precisely this point: the appointment of a Supreme Court justice who will be all but guaranteed to vote how conservatives want but who also has just enough plausible deniability to sail through his confirmation.
The whole point of the feeder network is to make sure that anyone appointed by a Republican president will be a reliable justice who will not stray from conservative ideology. Every conservative now on the court traveled through that pipeline: elite law schools where they were embedded in a group of like-minded future conservative movers and shakers, then on to clerkships with conservative judges, then to government service in Republican administrations (John G. Roberts Jr., Samuel A. Alito Jr. and Thomas all had jobs in the Reagan administration; Neil M. Gorsuch and Kavanaugh worked for George W. Bush), then on to lower-court judgeships, perhaps with a stop at a white-shoe law firm helping large corporations get their much-needed day in court. Along the way they become known and familiar to those who will advise a future president and vouch for their fealty to the cause, even if they’ve never made a speech about abortion or heard an abortion case.
That’s why there was no need for President Trump to ask Kavanaugh how he would rule on Roe, or anything else for that matter. Kavanaugh came pre-vetted, and the man advising Trump on all his judicial appointments, Leonard Leo, is head of the Federalist Society, the organization specifically established to be the heart of this conservative judicial network. For a president without any particular philosophy of the judiciary or opinions about what judges should be (as, for instance, President Barack Obama had), the role of Leo and his organization is even more important. But just as vital is the broader conservative legal and advocacy world, made up of people who might raise objections to a questionable nominee. By the time someone like Kavanaugh gets to this position, these people have known him for years and have come to trust him.
There may be small differences in the beliefs of those who travel through that system, which will reveal themselves in particular cases that can’t be predicted — Roberts, for instance, is not quite the same justice as Alito. But on the big questions, the system works as a filter to make sure that only those who believe in the conservative cause can reach the point of even being considered for a Supreme Court seat. Like Thomas, Roberts, Alito and Gorsuch, Kavanaugh passed through that filter and came out with a stamp of approval, certified by the conservative legal movement. The system worked just as it was intended, and we don’t have to wonder about what he’ll do on the bench.