We’re About To Put Another Dud on SCOTUS, Aren’t We?
By Charles W. Kingsfield
Mike Fragoso posted something about a month ago that made me very angry. In relevant part:
“With people speculating about SCOTUS picks (very likely without cause), it’s worth stepping back and looking at what the Court needs and not what professional activists want. A lot of people seem to long for our KBJ. That is a terrible idea. She even alienates Soto [mayor]. I’d also bet money that “conservative KBJ” is the last thing Alito wants the Court saddled with.
What we need is what we have needed for over a decade: our Kagan. Kagan is smart, strategic, and political. She has used this to her advantage since she got there. Kagan had a standing lunch w Kennedy. Scalia, Thomas, Alito? Nah they had other things going on and that wasn’t their style. I think her supposed influence on [Barrett] and [Kavanaugh] is *vastly* overstated but the fact is that she is always counting.”
If you weren’t convinced that the Republicans are a party of losers, read that tweet a hundred times. That’s not a shot at Frags — he’s a sharp guy, and I shudder to think he may have a point.
But imagine it’s December, 2015; Donald Trump just won the presidency and you are an optimistic young man in a MAGA hat. I come from the future and tell you that Donald Trump will pick five of the next six Supreme Court justices (let’s assume Justices Thomas and Alito don’t betray their movement the way Justice Ginsburg betrayed hers). I add that one will replace Anthony Kennedy, and the other will replace Ruth Bader Ginsburg. You are ecstatic. The future could not seem brighter.
And then, I show you this tweet.
Strategic? Political? Always counting?? Brother . . . counting to what? Now you’re doing the math — five picks to one, one seat taken from the dem . . . wouldn’t that be a 6-3 majority? Half of which was appointed by Donald Trump? What would we possibly need a Kagan for? What aisle would this consensus builder even be reaching across? Your face would fall. And you would justifiably ask: What happened?
What did happen? Well, I guess I am going to take a shot at Frags here — this type of tweet is what happened, telling the party we needed a reasonable consensus builder. If that messaging sounds familiar, it’s because that’s precisely how they sold us Amy Coney Barrett.
“In faculty meetings, she was never one to be polarizing – she was always the one who took people’s opinion seriously, regardless of where they came from,” said Nicole Garnett, a gem, in the run up to Barrett’s nomination. “I think that’s what you see in her opinions. I think that’s what you’ll see of her as a justice.” One of her students chimed in: “She want[s] us to understand that justice doesn’t serve a party, justice doesn’t serve a race, justice doesn’t serve a religion – justice is for everyone.”
Truer words, I don’t think, have ever been spoken.
It’s also how they sold us Brett Kavanaugh, which I say with less venom since he’s had the hot hand of late. Quote: “[his] record shows him to be a jurist who adheres to his principles and can influence his future colleagues on the bench” — that was none other than JD Vance. He was billed incessantly as a respected Washington insider, with Matt Schlapp touting that the Kennedy-hinged Roberts court “ha[d] adopted Kavanaugh's position an astonishing 11 times.”
In a hysterical turn, pundits actually pitched Neil Gorsuch as the biggest ideologue of the three — billing Scalia’s replacement as Nino 2.0. But even then, the canned applause from the moderate left was prophetic: “Judge Gorsuch’s record suggests that he would follow in the tradition of Justice Elena Kagan, who voted against President Obama when she felt a part of the Affordable Care Act went too far.”
That was Neal Katyal before he discovered ayahuasca.
Note the baffling trend: As our majority grew, we started fragging more. (That’s my new word, fragging [verb, playing defense when you’re demonstrably on offense].) And the Barrett frag is the most appalling of all; for the first time in eons, the GOP was poaching a Democrat seat on the Supreme Court. We didn’t even need the fickle Chief anymore — now was the time to slam the gas. What did we get? The most Kaganesque nominee of the bunch: Professor Barrett, the scholarly consensus builder. On paper, the question loomed as large then as it does now: What consensus? It’s a 6-3 court.
But the GOP wasn’t thinking about this “on paper.” No, it was being way smarter — reading the complex social dynamics on the deeply fluid, deeply human Supreme Court. And it had been from the start. We couldn’t put a bomb thrower in the Scalia seat because we needed to appease Roberts and Kennedy. We couldn’t put a bomb thrower in the Kennedy seat because we needed to appease Roberts. And we couldn’t put a bomb thrower in the Ginsburg seat because, by then, we had a new Kennedy on the bench — Gorsuch suddenly joined Roberts on the appease list in the wake of Bostock. And today? Now that Barrett’s come to resemble a modern-day Sandra Day O’Connor and Kavanaugh remains at least somewhat of a question mark? Take it from Mike Frags:
“We need cert grants and judgment lines and both of those will necessarily include Gorsuch, BK, and ACB. Which means the president should be looking for someone with a track record of effective leadership and ideally someone who those three will regard as formidable.”
It’s funny: When you put appeasers on the court, somebody always needs appeasing. And now, after nominating three appeasers in a row, we suddenly need the coveted triple whammy — a justice so reasonable, so levelheaded that he can appease Gorsuch, Kavanaugh, and Barrett at the same time. If that guy fills the Alito seat, can you imagine what we’d need for the Thomas seat? Why, that paragon of judicial modesty would need to appease four justices all at once. We’ll have to put the Dalai Lama on the court at this rate.
Look, maybe Frags is a genius and this latest “our Kagan” will be the Kagan to rule all the other Kagans. But game this out with me: What if we just put “our KBJ” on the court every single time? And I’d be interested to know who even qualifies as “our KBJ?” To be sure, we’ve got a legion of guys who would deliver nothing but wins: Matt Kacsmaryk, Lawrence Van Dyke, Kyle Duncan, Paul Matey, hell, Adrian Vermeule — all these firebrands who’ve fielded death threats for our movement and can’t be rewarded with even 2% Kalshi odds to fill the big seat. Are those “our KBJ?” Does that seem comparable?
Whatever it means, let’s say we picked one — a foaming-at-the-mouth, fiery, stone-cold bucket — in 2016 to fill the Scalia seat. What result? Well, he probably would’ve been real mean. The electorate probably would’ve gotten mad — heck, I bet we’d have lost the house in ‘18. And he probably would’ve scared off the Chief in some key votes; he probably would’ve even spooked him in a pivotal case like Bostock and blown our majority. Good thing we picked Neil Gorsuch and none of those things happened.
Yes, our KBJ would’ve sucked for that first year. But then something wild would’ve happened: We’d get another seat. And now we’d have two KBJ’s. You’d never have to appease those guys; lump them in with Alito and Thomas, our two resident KBJ’s, and that’s four you’d never have to appease. And then what if you did it again — and took a seat from a dem? Well heck, there’s a 5-4 majority of our KBJ’s. And then what if you got two more picks? Or three?
For those counting at home, it bears mention that the left has picked its KBJ every single time forever always. Even their Kagan — aptly named Elena Kagan — votes like their KBJ on every major case. Everybody knows this. It has been discussed to death. It should not have to be said. But people keep tweeting this.
Days ago, the President tweeted something different: “I don’t want loyalty, but I do want and expect it for our country.” I hope to God that means he gets it. Because his appellate picks thus far have been mainstreet FedSoc, the #OurKagan production facility. If he’s as mad as he claims about losing in court, I hope he’ll become the first Republican president to ever do something about it. Because if we don’t start now, when will we?
But something, just a hunch, tells me we’re getting our latest Kagan. Thank you Frags, very cool.