Barack Obama had two nominees: Elena Kagan, the brilliant former dean of Harvard Law School and former solicitor general of the Obama administration, and Sonia Sotomayor, the first Hispanic justice to serve on the Court who had been a reliably liberal judge on the U.S. Court of Appeals for the Second Circuit. In almost any given case, the four liberal justices—Ginsburg, Breyer, Sotomayor, and Kagan—today vote in near-lockstep with one another. That lockstep, of course, is exactly how Democrats and the political left want them to vote, and so their opinions on any major issue are more or less predictable.
President Trump has also thus far had two Supreme Court nominees. Trump’s first nominee, Neil Gorsuch, had a solid record on the U.S. Court of Appeals for the Tenth Circuit—including multiple robust opinions in defense of religious liberty—although it was a record not nearly as lengthy, distinguished, and conservative as those of Rehnquist, Scalia, or Alito.
Justice Gorsuch’s first two terms on the Court were mostly good, but only time will tell what kind of Justice Neil Gorsuch will ultimately become. History, alas, has shown that these questions are measured in decades, and not merely in a few years.
Sadly, this past June—in the most notable decision of his short tenure—we’ve already seen Justice Gorsuch joining Chief Justice Roberts and voting with the four liberals in a landmark decision, where the Court concluded that the Civil Rights Act of 1964, which prohibits discrimination “because of… sex,” also covers sexual orientation and gender identity. As a policy matter, you might believe Gorsuch’s position isn’t unreasonable.
Indeed, legislation to protect sexual orientation and gender identity has repeatedly been introduced in Congress, and at different times it has passed both the House and the Senate. But rather than allow elected legislators to make the policy decisions—and to address whatever compromises might be needed to protect free speech, religious liberty, and other fundamental rights—the Court just decreed the law was changed. Justices Thomas, Alito, and Kavanaugh dissented. Justice Alito put his disapproval in no uncertain terms, writing that “the Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated—the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”
President Trump’s second nominee, to replace Justice Kennedy, was Brett Kavanaugh. Judge Brett Kavanaugh had a record much like that of John Roberts. Indeed, when then-presidential candidate Trump put out his initial list of eleven judges, and subsequently his expanded list of twenty-one judges, Kavanaugh’s name was deliberately omitted. The reason for this was simple; Kavanaugh, on the D.C. Circuit had written an opinion in a case called Seven-Sky v. Holder arguing that the Obamacare individual mandate was a tax; it was an opinion that many saw as a roadmap for Roberts’s subsequent decision upholding Obamacare in NFIB v. Sebelius.
Kavanaugh had been a law clerk to Justice Kennedy, and the Washington rumor mill churned with the belief that Kennedy wanted Kavanaugh to replace him and that Kennedy agreed to retire only after the Trump White House made that promise. I don’t know for certain if those rumors are true, but they are certainly plausible.
Kavanaugh, like Roberts, has often sought to avoid controversy. It is no small irony, then, that his confirmation hearing was transformed into a brutal and vicious personal smear, driven by the Democrats.
Judge Kavanaugh was previously a senior staffer in the George W. Bush White House, and he was very much a D.C. insider. He’s smart, affable, and gregarious. Had Jeb Bush won the 2016 presidential nomination and become president, Brett Kavanaugh almost certainly would have been Jeb’s first nominee. Personally, I like Brett, but when President Trump nominated him after the urging of many longtime voices in Washington, I worried about the jurisprudential consequences.
So I raised serious concerns. My preference, which I urged energetically for both of Trump’s vacancies, was nominating Senator Mike Lee. Mike Lee, the senior senator from Utah, is my closest friend in the Senate. He’s brilliant and the son of Rex Lee, President Reagan’s legendary solicitor general who is considered one of the finest Supreme Court advocates ever to have lived. Mike was a law clerk for Justice Alito. He is a constitutional scholar who is a deeply committed conservative. Over and over again, he has stood for the Constitution and has endured relentless, pounding criticism for doing so. As I explained, I believe that is the single most important criterion for a Supreme Court justice.
Critically, Mike doesn’t give a damn what D.C. thinks of him. He doesn’t go to D.C. cocktail parties. That’s a very good test for Supreme Court nominees: whether they have any interest in (or tolerance for) going to D.C. cocktail parties.
With both vacancies, I urged President Trump and I urged Vice President Pence that the administration should nominate Mike Lee. Trump had promised to nominate justices “in the mold of Scalia and Thomas,” and Mike fit that bill perfectly. Of all of the potential choices, he was the one I was absolutely certain would remain faithful to the Constitution, no matter what. But Mike, in the 2016 presidential election had not supported Donald Trump, even after he was the nominee. And each time I pressed the case to the president and the vice president, that was deemed a disqualifying factor—even though, at my urging, Mike was one of the twenty-one names on the list of potential justices that then-candidate
