There’s Nowhere for Justice Kavanaugh to Go But Right

(Bloomberg Opinion) -- Now that it is certain that Judge Brett Kavanaugh will be confirmed to the U.S. Supreme Court by the Senate, we can ask: What, if anything, will the bruising battle over his confirmation mean for his jurisprudence?

There’s no objective answer to that question. It depends on imagining an alternative universe in which Kavanaugh was confirmed without scandal.

But there is good reason to think that Kavanaugh will be a more far-right and party-line conservative justice after this confirmation process than he would otherwise have been. And the tools that legal liberals have traditionally used to try to win over conservatives like Justice Anthony Kennedy are off the table, at least for the foreseeable future, because Kavanaugh is likely to be treated as a pariah.

The reasons for this prediction lie in human psychology, the structure of judicial incentives and the precedent of Justice Clarence Thomas. When the world divides into two sides, with one condemning you and one defending you, it’s hard not to move closer to the one that has your back.

Consider the counterfactual scenario. Kavanaugh is a movement conservative and a Federalist Society favorite who would have been a solid Republican vote on the court no matter what. Yet it was also possible to think that he would have formed a center-right block with Chief Justice John Roberts on hot button issues such as abortion and affirmative action.

Roberts is known to care deeply about the reputation of the court. He does not want it to be seen as a reactionary body. He would rather chip away at liberal rights slowly than overturn precedent wholesale.

Kavanaugh-as-he-was seemed inclined to advance conservative ideals pragmatically. He was less an ideologue than an operator. That would have given him reason to stick close to Roberts, whose strategy is calculated not to make the court into a central liberal electoral issue.

What’s more, Kavanaugh liked influence and power. On the Supreme Court, a predictable vote is a low-influence vote. Power lies at the center, not the extreme.

Finally, Kavanaugh was long perceived as highly collegial. He would have had some inclination to make common centrist cause where possible even with liberal Justice Elena Kagan, herself a deeply collegial character who brought Kavanaugh to Harvard Law School to teach.

All that is over now. Like Thomas before him, Kavanaugh will now have no choice but to seek the embrace of the far right, which stood by him in his hour of need. Liberals won’t forget the sexual misconduct allegations against him – probably not ever.

Part of the appeal of being a Supreme Court moderate is that while one side may be frustrated with you after any given decision, you receive positive feedback from the other. But, in the short term at least, there can no prospect of positive feedback from liberals, no matter how Kavanaugh votes. He could start voting like Justice Sonia Sotomayor, and liberals would still see him as a sex offender who got onto the court by deceit. He thus will have no psychological incentive to do anything other than vote with the conservatives.

Nor will liberals be able to court him, as they did Kennedy.

The process of willing over a conservative justice to moderation involves the liberals providing conscious reinforcement in the form of praise whenever the conservative does anything moderate. If this sounds devious, it really isn’t. Commentators evaluate and discuss every detail of every Supreme Court decision anyway. The feedback loop is continuous. And nobody is telling anything less than the truth. The idea is just that liberals respond with praise and appreciation when conservatives take moderate steps.

That feedback loop includes – or did for Kennedy – inviting a swing justice to visit law schools and classes to meet worshipful (mostly liberal) students and professors. I certainly had Kennedy to my classes, where he was charming and seemed to enjoy the interaction with students who clearly admired him for his liberal opinions.

Over time, this kind of praise can subtly affect the justices. Don’t take my word for it. Take the late Justice Antonin Scalia’s. In high dudgeon against Kennedy for his gay-marriage decision, Scalia accused him in a scathing dissent of writing for liberal law professors. Kennedy of course would reject this interpretation. But Scalia, as a fellow justice, was well placed to offer a psychological reading of his colleague.

Now that more than 2,400 law professors have signed a letter saying Kavanaugh’s temperament disqualifies him from serving on the court, all but a handful of far-right law schools are going to be no-go zones for him for years. If he can’t even visit, he can’t be wooed.

At my own workplace, Harvard Law, where Kavanaugh taught very successfully for years, some students moved to exclude him from future teaching after the assault allegations emerged. He bowed out of this year’s class with the excuse that he could not commit to teaching. Now it is hard to picture when and if he could come back without controversy.

To be clear, the fact that Kavanaugh likely won’t be persuadable because of the course his nomination took isn’t something to be bemoaned. It’s just a fact of life. But it is an example of how a grisly confirmation process can affect the country for years to come.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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