Last Thursday, in an interview with NBC’s Lester Holt, President Biden assured the host that his nominee to replace Supreme Court Justice Stephen G. Breyer, who is retiring, would get support from Republican senators. That’s because Biden is not “looking to make an ideological choice,” he emphasized, adding that his nominee would have a “mainstream interpretation of the Constitution.”
This nonideological rhetoric contrasts starkly with that of recent Republican presidents, including Donald Trump, who openly prioritized ideology in their federal court nominees and publicly committed to appointing judges with a particular conservative constitutional philosophy: originalism.
How should we understand these radically different approaches to judicial selection? Part of the answer lies in the different logics and structures of our political parties themselves.
Ideological Republicans and group interest Democrats
Biden’s rhetoric around this latest Supreme Court nominee is “more proof that Republicans are from Mars and Democrats are from Venus,” as political scientists Matt Grossman and David Hopkins wrote here at TMC several years ago. That is, the political parties have vastly different priorities and agendas, each of which translates to distinct approaches to debating public issues, campaigning and governing.
As Grossman and Hopkins explain in the book “Asymmetric Politics: Ideological Republicans and Group Interest Democrats,” the contemporary Democratic Party is a coalition of social groups, group leaders and “demanders of particular policy commitments.” The Republican Party, on the other hand, can be understood as a “vehicle of a conservative ideological movement” that has become increasingly oriented toward dismantling government.
In short, Democratic leaders see themselves as responsible to particular voting blocs and delivering on their policy demands, while Republican leaders see themselves as beholden to symbolic ideological commitments to freedom, small government, individual liberty and so on.
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Republicans prioritize ideology, Democrats prioritize coalition-building
This party “asymmetry,” as Grossman and Hopkins describe it, explains why recent Republican presidents have elevated ideology over all other characteristics in judicial selection, including professional qualifications and actual experience judging. Beginning in 2001, Republican presidents sidelined the American Bar Association, a professional organization that Dwight D. Eisenhower first tasked with evaluating potential nominees’ credentials.
Instead, Presidents George W. Bush and Trump relied on organizations like the Federalist Society and the Heritage Foundation, which evaluate judicial nominees based on ideological factors, such as their commitment to originalism. A once-radical theory of constitutional interpretation, originalism demands that the U.S. Constitution be interpreted according to its original public meaning, as of 1789 for the body of the Constitution, 1791 for the Bill of Rights and 1868 for the 14th Amendment.
Contrast this with Biden dismissing ideology when asked about his nominee’s credentials. Instead, Biden is prioritizing coalition politics, vowing to appoint a Black woman to the Supreme Court — a nominee who, if confirmed, would be the first Black woman to sit on the nation’s highest court. Black women are among the most steadfast supporters of the Democratic coalition. In the 2020 election, 90 percent of Black women voted for Biden.
Biden’s emphasis on judicial diversity — making the bench “look more like America” — is consistent with past Democratic presidents beginning with President Jimmy Carter.
How originalism became the judicial ideology of the Republican Party
Prioritizing ideology is one thing. Having a clear, identifiable and marketable judicial ideology is another. The rise of the Federalist Society for Law and Public Policy Studies and its successful mainstreaming of the conservative constitutional theory of originalism helped the GOP cohere around a judicial ideology and encouraged it to use that ideology as a measuring stick for reliably conservative judges.
That’s new for the Republican Party. Take President Richard Nixon as an example. Although he vowed to put conservative “strict constructionists” on the bench, Nixon’s four appointments to the Supreme Court resulted in what critics have called the “conservative counterrevolution that wasn’t,” with a few exceptions. One of Nixon’s appointees, Harry Blackmun, even authored the majority opinion in the 1973 decision Roe v. Wade, constitutionally enshrining a woman’s right to choose an abortion.
The Federalist Society was founded in the 1980s in part to make sure such mistakes would not happen again. Since then, the organization has become the “de facto gatekeeper” of judicial nominees for the Republican Party. Its leadership helps identify and shepherd Republican nominees through the judicial selection process. Once on the bench, the organization also acts as a vocal “judicial audience” to make sure conservative judges don’t fall victim to “ideological drift” once appointed to life terms. Even Trump — who bucked conservative orthodoxy on issues ranging from trade to immigration — moved in lockstep with the Federal Society in selecting judges and justices.
Find all of TMC’s Supreme Court analysis here.
Will the Democrats ever cohere around a judicial ideology?
Some on the legal left are trying to develop an ideological answer to the Federalist Society and the conservative legal theory of originalism. After all, there is no inherent tension between the goals of coalition politics — making the judiciary look more like America — and ideology. The American Constitution Society was founded in 2001 specifically to be a progressive counterpart to the Federalist Society. The organization has produced several reports and books about the Constitution and constitutional interpretation, each advocating for a progressive understanding of the Constitution.
Biden’s remarks last Thursday underscore the fact that this project has been largely unsuccessful so far. Instead of discussing judicial nominees as having an ideology grounded in the theory of “constitutional fidelity” or even “living originalism” — both leading contenders on the legal left — Biden dismissed ideology entirely, preferring the vague, nondescript “mainstream interpretation of the Constitution.”
For those on the legal left looking to counter Federalist Society influence and the conservative takeover of the courts, political science suggests the Democratic Party itself will continue to be a formidable barrier to this project.
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