I guessed yesterday that he’d opt for Barrett in the end so I’ll own my mistake here. That was based on two hunches. When given a clear choice between doing the conventional establishment thing and something bolder and less conventional, Trump would be unconventional. And when given a clear choice between satisfying his base and sending them over the moon, he’d send them over the moon. He’d already made a stellar conventional pick with Gorsuch, after all. Now was his chance to roll the dice on Barrett.
He seems to have concluded, correctly, that SCOTUS appointments are one matter in which the stakes are too high to gamble. His process with Gorsuch was straightforward: Trust the egghead conservative lawyers around him. Don McGahn and Leonard Leo know who’ll deliver. They chose Gorsuch last time and he’s delivered so far, to rapturous applause from Trump’s base, so why wouldn’t POTUS trust McGahn and Leo again? Whatever cultural thrill Barrett would have given social conservatives, the point of the pick was to install someone who’ll reliably vote the right way and lock down policy gains for the right. And conservatives have been very good at that going back to Clarence Thomas’s nomination, thanks to people like McGahn and Leo. The emotional trauma of Souter, Stevens, Brennan, and to a lesser extent Kennedy has made “no false moves” the motto of the right-wing SCOTUS assembly line and it’s paid off handsomely, with the notable exception of John Roberts’s vote in the ObamaCare case. (And Roberts has been solidly right-wing on virtually all other matters of import.) No false moves.
Alone among the final four, Kavanaugh was the “no false moves” candidate. Hardiman might have drifted to the center. Kethledge’s immigration rulings gave some pause. Barrett, for all her cultural appeal, is a black box jurisprudentially. If any one of them had been appointed instead and disappointed the right, the question would understandably have been asked, “Why didn’t Trump pick the safe candidate, Kavanaugh?” What would he have said? “He worked for Bush”? C’mon. The difference between Kavanaugh and Barrett, at least at this stage in their careers, is the difference between the pitcher who wins 18-20 games every year and the 20-year-old rookie who throws 105 m.p.h. Everyone wants to see the rookie pitch — but maybe not for the first time in Game Seven, as who knows if she can find the strike zone consistently? And if she doesn’t, you’re stuck with her for 40 years. The bullpen will be empty for that particular seat until 2050, if not longer.
David Brooks makes a smart point about Kavanaugh too. The reason he’s the safe pick is because he was incubated by the conservative legal culture shaped by the Federalist Society since the mid-80s, which developed precisely because righties wanted to make sure Republicans stopped picking Brennans for the Court. That culture was still too new to prevent Bush 41 from picking Souter in 1990 but it’s taken over the right in years since, to conservatives’ great benefit. Another way of putting that is that it’s because Kavanaugh is an “establishment” Washington creature that you know what you’re getting by putting him on the Court. Thanks to the Federalist Society, the conservative judicial “establishment” is far more reliable than the conservative political establishment. And this bullpen is fully loaded:
Kavanaugh is the product of a community. He is the product of a conservative legal infrastructure that develops ideas, recruits talent, links rising stars, nurtures genius, molds and launches judicial nominees. It almost doesn’t matter which Republican is president. The conservative legal infrastructure is the entity driving the whole project. It almost doesn’t even matter if Kavanaugh is confirmed or shot down; there are dozens more who can fill the vacancy, just as smart and just as conservative.
It’d be going a tad too far to say that appointing Kavanaugh is like purchasing a brand-name product, but not way too far. In the end, Trump did what all of us do all the time at the grocery store: When choosing between a less expensive brand of more questionable quality, something custom-made but pricier, and something familiar from a reputable company that he’s used before, he went with the familiar item from Legal Conservatism, Inc. It’s a cautious, even judicious, thing for him to do, and out of character. But POTUS probably understands that Supreme Court nominations are the one mistake he might make that even the right won’t tolerate. And he may feel out of his depth in the highly specialized realm of jurisprudence, especially since he’s not a lawyer by training. He might overrule Gary Cohn on trade, having spent decades stewing about it, but why would he overrule McGahn and Leo when they’re telling him repeatedly, “This guy’s a home run”? He didn’t make the most exciting pick but he probably made the right pick. Even anti-Trumpers like Ben Sasse don’t disagree.