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High Stakes: Stephen Wermiel on the Supreme Court and Confirmation Politics

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The Supreme Court building during twilight hours.
Law professor Stephen Wermiel teaches courses on the Supreme Court, constitutional law, and the First Amendment.

Even in an era of “Breaking News!!” alerts every other minute, reports about Supreme Court justice Anthony Kennedy’s retirement arrived like a bolt of lightning. Conservatives were euphoric. Liberals were despondent. Both sides agreed that President Donald Trump’s next nominee could ensure a conservative majority on the court for a generation.

Trump chose Brett Kavanaugh, and all of Washington is gearing up for a bruising confirmation fight. To understand the court’s recent history, and the ramifications of this moment, University Communications and Marketing turned to Stephen Wermiel, an American University Washington College of Law professor. He teaches classes on the Supreme Court, constitutional law, and the First Amendment, and he’s also an AUWCL alum (’82). Wermiel covered the Burger and Rehnquist courts at the Wall Street Journal from 1979-1991, and he’s co-authored two books on Supreme Court justice William Brennan.

In an interview, Wermiel discusses the Kavanaugh nomination, how justices might handle Roe v. Wade, and the difficulty of providing objective court analysis in a highly partisan era. This interview has been edited and condensed for clarity.

UCM: The stakes are pretty high over these Supreme Court justice nominations. Is that because the Constitution is an old, somewhat vague document? Does that add more importance to judicial review?

Wermiel: We seem to be in a period—the past 60 or 70 years—where many of the hard decisions about hot-button issues in our society have been made by the courts and not by the political branches. And depending on who’s in power, somebody likes that, and somebody doesn’t. What will now be the conservative majority on the court believes that, going all the way back to the Warren court in the 1960s, the Supreme Court became too powerful and too influential in policy choices. There’s sort of two kinds of conservatives. There are conservatives who want to make their own policy choices and undo the liberal ones. And then there are conservatives who want to roll back some of those choices, because they don’t believe the court should be making the decisions. When you put those two groups together, it’s a pretty potent force.

UCM: There was a recent Vox article called “The Supreme Court Versus Democracy.” The story noted that if Kavanaugh gets confirmed, four of the nine justices were nominated by presidents who, at least initially, lost the popular vote. Do you foresee a backlash against the court, with people possibly losing faith in the institution?

Wermiel: The faith in the institution of the Supreme Court is one of democracy’s great mysteries to begin with. We love to hate the decisions that we disagree with. And yet the court carries on as an institution that, somehow, we seem to obey. If people are asking, ‘Are we being governed by unelected judges appointed by minority-selected presidents?’ The answer, to some degree, is yes. And yet the court seems to keep roll along with a degree of credibility. There was just a Gallup poll finding that public opinion of the Supreme Court is at its highest in the past eight years.

UCM: Do you have any thoughts about what kind of justice Brett Kavanaugh might be?

Wermiel: Kavanaugh is a very smart, very capable, thoughtful, exceedingly well-credentialed nominee. I think he will be a very conservative justice. That’s pretty much what he’s been as a judge, and what his legal career has been. And I think he was picked for that reason.

UCM: Some pundits fret about the increasing partisanship around each nomination. Republicans assign blame to Democrats for the rejection of Robert Bork in 1987. Now Democrats are angry about Mitch McConnell’s move to thwart the Merrick Garland nomination. Can you identify a point where the tensions really escalated?

Wermiel: You can certainly say it started with the Bork nomination in 1987. But it’s also not implausible to roll the clock back 20 more years to the opposition—by, basically, segregationists—to the nomination of Thurgood Marshall. And the senators don’t like to admit this, but they basically filibustered the nomination of Abe Fortas to be chief justice. And, remember, Warren Burger later got confirmed as chief justice, but then [President Richard] Nixon had a hard time filling that empty Fortas seat after he resigned. So that period, from 1967 to 1972, was in some ways a bloodbath over Supreme Court nominations. Then it arguably calmed down with the John Paul Stevens and Sandra Day O’Connor nominations.

UCM: Republican President Dwight Eisenhower nominated Earl Warren and William Brennan, setting up a progressive period for the court. Gerald Ford nominated John Paul Stevens, who was basically a liberal. But these days, are activists just looking for judicial hacks who will support the president’s policies?

Wermiel: I won’t use the word ‘hacks.’ But let’s say a stacked deck. They’re looking for a sure thing. This is sort of a remarkable thing to think about: If you start with the election of Richard Nixon—in this 50-year period—not counting Kavanaugh, Republican presidents have appointed 13 Supreme Court justices, and Democrats four. And yet even with that 13:4 ratio, Republicans feel like they’ve never quite gotten that sure-thing fifth vote, because they had to put up with [Harry] Blackmun; Stevens; O’Connor; [Anthony] Kennedy; [David] Souter; [Lewis] Powell; and even Burger to some extent. So seven of those 13 turned out to be more moderate than they hoped and expected. Whether they’re holding up signs and banners that say it or not, the motto is ‘No more mistakes. We want a sure thing.’ The Democrats, I think, have paid less attention to this.

UCM: Observers say the right devoted a lot more resources to this issue, whereas the left and Democrats have neglected the courts a bit. Why do the Republicans have an edge in organizing and messaging on Supreme Court fights?

Wermiel: To use a metaphor, it’s all about baseball. The Republicans have developed a farm system, and the Democrats haven’t. The Republicans, probably even before Ronald Reagan was inaugurated, started identifying young conservatives they could put on the lower courts. I knew many of the 21 names on Trump’s list. I don’t think the Democrats could come up with a list of 21 people. And I think it goes back to the Republican frustration over the Warren court. When the Warren court ended in 1969, and the Republicans began to fill seats, they were not able to turn the clock back to anywhere near the degree that they hoped. In terms of thinking about advancing rights, the 1970s gave us abortion rights, the 1970s gave us affirmative action, the 1970s brought gender discrimination under the 14th amendment. And I don’t know if it was somebody’s specific conceived strategy to say, ‘Let’s start packing the lower courts with smart conservatives who will then become feeders for the Supreme Court.’ But they certainly have succeeded in doing that. And the Democrats just haven’t paid as much attention.

UCM: Some court watchers assume Roe v. Wade will be overturned, while others think the court will just chip away at it until abortion is exceedingly rare or unobtainable. Where do you think this issue is headed?

Wermiel: I genuinely believe that either scenario is totally plausible. There is ample reason to believe that Roe v. Wade will be overruled. The presidents who have appointed the justices we’re talking about were committed to overruling Roe v. Wade. The voters, presumably, who elected those presidents to appoint those justices, believe that Roe v Wade should be overruled. It’s been in the Republican Party platform for more than three decades. So it’s not implausible. Now, if they’re thinking politically and strategically—which they may not be—you might get a different scenario. There are political scientists who think that Roe almost singlehandedly created the evangelical conservative movement in the United States. So if you’re thinking about that, why give that ammunition to the left now by overruling Roe? That’s one question which might go into their thinking, or they might not care about that. They might say, ‘We believe this decision was wrong as an understanding of the Constitution, period. And it needs to be eliminated.’ Or they may decide they don’t have to overrule Roe. The current legal standard is called the ‘undue burden’ test. A state can’t interfere with a woman’s right to abortion by imposing an undue burden in her access to abortion. The meaning of the term ‘undue burden’ is entirely up to a majority of the court. Every January and February, when the state legislatures come into session, there are a dozen states that pass new abortion restriction laws. Those get challenged in court, and many of them haven’t made it to the Supreme Court, because pro-life forces know that the five votes haven’t been there. There hasn’t been a lot of reason to appeal all the way to the Supreme Court. Now, that could change. If you had a legal challenge from every state that passes a new law in the 2019 January-February legislative sessions, you could have a dozen petitions from different states, involving different state laws, sitting at the Supreme Court. The justices could say, ‘This law that requires no abortions after 20 weeks, we don’t think that imposes an undue burden. This law that requires an ultrasound, we don’t think those are undue burdens.’ Basically chip away at the availability of abortion services, deciding that they don’t actually have to overrule Roe.

UCM: How has our understanding of the Supreme Court changed since 1979-1991, when you covered it for the Wall Street Journal?

Wermiel: I think the court is ever perceived as more of a political institution. And trying to cover it without that, I think, has probably become an upstream swim. I always believed, and I think most serious Supreme Court reporters believed, that there was substantive law to report on in the decisions of the court. You aren’t just reporting, ‘This is a liberal decision or a conservative decision,’ or which faction of the court won, and how angry is the faction that lost. You’re reporting on the law. You’re reporting that the court ruled today that this law means X when it didn’t mean that yesterday. And then if you have enough information to add in what the practical effect of that is, I always thought that was one of the most important things to do. My assessment of the practical effects would be based on careful reading of the briefs and understanding of what the lower courts had done, and what the parties were saying. And I think it just gets harder and harder to do that. I think the court is perceived more and more of being part of the political process, and the Kavanaugh nomination is just going to further that. We’re going to see millions of dollars of TV ads, and that just makes it all the more seem like a political campaign. To me, that doesn’t seem to be a good thing for the court.