Curt Levey on the Supreme Court and the Presidential Race

Curt Levey is the president of the Committee for Justice, an organization devoted to promoting judicial nominees who uphold the written constitution, as opposed to a “living constitution.” After graduating from Harvard Law School, Levey clerked on the Sixth Circuit Court of Appeals, then worked for the Center for Individual Rights, where he participated in affirmative action cases involving the University of Michigan. Levey worked for the Office for Civil Rights at the Department of Education before joining the Committee for Justice. Recently I had the opportunity to interview Levey about the Supreme Court in the context of the upcoming presidential election. Although I disagree with various aspects of Levey’s conservative perspective, I find his comments about the Supreme Court to be insightful. —Ari Armstrong

Ari Armstrong: To begin, would you say a few words about your background and your organization, the Committee for Justice?

Curt Levey: I’m a constitutional law attorney. I have worked mostly for public interest groups. I also ran the Title IX policy group at the Department of Education during the end of George W. Bush’s first term as president and the first part of his second term.

I have a civil rights background. I started out at the Center for Individual Rights, which is a litigation group; and since 2005 I’ve been at the Committee for Justice, becoming the head of the group in late 2006.

The group was originally set up with a relatively narrow mission of defending President Bush’s judicial nominees against the attacks and filibusters that they were facing at the time. Our mission has grown larger over the years. We’re still best known for promoting the nomination and confirmation of constitutionalist judicial nominees, and, under Barack Obama’s administration, opposing the worst of the nominees.

We also generally promote the rule of law and constitutionalism, the strict construction of the constitution and statutes, as opposed to the judicial activism and “living constitution” philosophy practiced by many liberal judges and promoted by most of legal academia.

AA: A major issue surrounding this year’s presidential election is the course of the Supreme Court. Which justices are likely to retire over the next few years?

CL: The most obvious justice to retire is Ruth Bader Ginsburg. She is the oldest, and she had pancreatic cancer. She had a very early stage of cancer, but I researched it at the time, and even that very early stage had a median survival of seventeen months. She’s already exceeded that, thank God, but, given age and the fact that cancer can come back years later, few expect her to still be on the bench at the end of the next president’s term. If Obama is elected, then he’ll appoint a liberal to replace the liberal Ginsburg; and if Mitt Romney is elected, hopefully he’ll appoint a conservative or at least moderate justice to replace Ginsburg, which would shift the court a little bit to the right.

Justices Antonin Scalia and Anthony Kennedy will both be eighty in 2016, so I think they’d be next on the list to retire. Scalia has explicitly said that he’d rather retire under a president who would appoint a conservative; Kennedy, I don’t know that he cares.

Even if they want to serve for the next four years, whether because of who the president is or because they enjoy their jobs, statistics on life expectancy and disability suggest that, although some justices can serve well into their eighties, most men don’t live well into their eighties and stay healthy enough to continue working. Just based on the statistics, there’s only a slightly better than 50-percent chance that each of them will be able to work four years from now, even if they want to work.

There’s a strong likelihood that at least one of them will leave the bench, which means that Obama, if reelected, will likely be able to replace one of them with a liberal, and that’s all he needs to create a court along the lines of the liberal court of the 1960s under Chief Justice Earl Warren. There are already four predictable, consistent liberals on the court. All Obama needs to do is replace Kennedy or Scalia, and he’s got the votes to do pretty much whatever he wants, from making gay marriage a constitutional right to requiring taxpayer funding of abortion, etcetera.

AA: Who in your view are the most likely nominees to the court under each candidate? And what are the strengths and weaknesses of each?

CL: I’ll start with Romney. Paul Clement has to be number one on the list. He’s a former United States solicitor general, and everyone agrees he’s a brilliant guy. He has argued some controversial cases, including ObamaCare and the Arizona immigration case recently; but he’s respected by both sides of the aisle, and it would be very hard to block him.

Another possibility is Viet Dinh, formerly head of the Office of Legal Policy at the Department of Justice. He would be the first Asian American justice. If Romney would want to go with a woman, the most likely would be Diane Sykes of the Seventh Circuit; she’s certainly very popular with conservatives. Some of the younger circuit court judges who would be fairly likely include Jeff Sutton on the Sixth Circuit, Brett Kavanaugh on the D.C. Circuit, and Neil Gorsuch on the Tenth Circuit.

There are also some possibilities from state courts, including Allison Eid of the Colorado Supreme Court. She worked for Clarence Thomas, worked at the Department of Education for William Bennett, and served as solicitor general of Colorado; I think she’d be an excellent pick.

On the Obama side, I would have said Eric Holder, but given all of his issues as attorney general (such as the “Fast and Furious” gun-trafficking controversy), he’s probably fallen off the list.

Certainly Merrick Garland of the D.C. Circuit is on the list—he is a moderate liberal, somebody who could easily get confirmed. Beth Brinkman, who was the deputy assistant attorney general in the Department of Justice, should be considered. Someone talked about the last time there was a vacancy was Janet Napolitano, currently the secretary of homeland security. Deval Patrick, currently the governor of Massachusetts, served as an assistant attorney general under Bill Clinton; he’s a good friend of the president.

Then there are people Obama would probably like to appoint, but who would be too controversial, such as Cass Sunstein or Goodwin Liu.

Of course, there are other possibilities on both sides.

AA: What would be the likely ideological differences between the justices appointed by Romney versus Obama?

CL: There would certainly be a big difference between the ideology of the Romney picks and the Obama picks. For practical considerations, there would not be many ideological differences between the Obama picks. It’s not that there aren’t different philosophies among progressives in the legal community, but, if you look at history, Democratic appointees to the Supreme Court can be relied on to vote the “right” way (from the perspective of the left) on the big divisive issues that we all care about.

The Supreme Court hears maybe seventy-five cases per year, and usually seven or eight of those involve big issues of the “culture war” that people really follow closely. This year, the two biggest cases were probably those involving the Arizona immigration law—a case that overturned some of the state’s illegal immigration measures—and ObamaCare—a case that upheld the federal government’s ability to impose a penalty tax on those who decline to purchase health insurance. In those cases, the liberal justices, whether they are moderate liberals or further to the left—such as Ginsburg—always vote the liberal way. Although Obama’s Supreme Court nominees will have their personal differences in philosophy, I don’t think the specifics of who Obama nominates will make much difference in what the court does. Democratic presidents, for whatever reason, have been good at picking justices who will vote in a way that is consistent with the president’s views.

On the Republican side, it’s the opposite. One can name various Republican appointees who have, if not a liberal voting record, such as justices David Souter and John Paul Stevens, at least a moderate record, such as justices Sandra Day O’Connor and Kennedy (and some might say John Roberts, particularly after he upheld the ObamaCare mandate, but I wouldn’t go that far). So whom Romney appoints would make a practical difference.

If we’ve learned anything from the ObamaCare decision, it’s that five conservative justices on the court is not enough to make the court conservative. Conservatives don’t really have five; Kennedy is not a conservative on many issues, although he is a conservative on the federalism issues at stake in the ObamaCare case. In any case, whether conservatives have four or five, five is not enough. Time and again, whether the issue is abortion, or enemy combatants, or a host of social issues, one or more Republican nominees have sided with the more liberal justices.

I think gay marriage might become an example of this during a Romney presidency. Even with no changes to the court, Kennedy is sympathetic to gay rights. The type of person Romney would nominate and be able to get confirmed could be someone like Kennedy or Roberts, rather than Scalia. Romney is not a right-wing ideologue. The person Romney would appoint might either join Kennedy or replace Kennedy and be a vote for a right to gay marriage, which Romney opposes and opposed even when he was governor of Massachusetts.

AA: Debates continue over the proper scope and purpose of judicial review. Robert Bork opposes practically all judicial review. Former law professor Robert Natelson regards many of the activities of the modern federal government as outside the intended scope of the Constitution; yet he also regards the Constitution as granting relatively wide latitude to Congress to regulate interstate commerce. Timothy Sandefur of the Pacific Legal Foundation sees a much broader role for the courts in protecting economic liberties. And, of course, so-called progressives argue for practically no judicial restraint of government, at least in the economic sphere. To what extent, and in what ways, will this debate influence the selection of the next Supreme Court justices, particularly if Romney wins?

CL: I might not characterize that debate exactly the way you do. I think conservatives agree that the “living constitution” philosophy and judicial activism are bad. However, they define judicial activism somewhat differently. My view isn’t quite the Borkian view, but the Borkian view emphasizes judicial restraint and showing deference to the legislature. The other view—closer to my view—is that, where the Constitution is clear, courts should be strong in striking down legislation that violates the Constitution, but the courts should not invent constitutional rights or ignore clear constitutional rights.

There is a division. To summarize, some conservatives would like the courts to be, not judicial activists in the “living constitution” sense, but vigorous in enforcing the Constitution given to us by the Founding Fathers. Then there are other conservatives who see deference to the legislature as at least one important aspect of judicial restraint.

Typically that debate has not played out in the selection of nominees. Conservatives have been fairly united on recent nominees, and they haven’t worried much about differentiating the two strains of conservatism that you described.

Often, let’s face it, there’s not much room for nuance in the judicial confirmation process. It usually comes down to the record of a nominee. Often the debate is largely outcome-based. People look at a nominee’s record; they see how he ruled or what he supported. If they think he reached the right outcome most of the time, they don’t worry about exactly what his judicial philosophy is—and that philosophy may not even be stated explicitly in his work.

For conservatives, I think it often comes down to a general sense of, “Is this guy one of us, or is he a liberal, ‘living constitution’ judge?” I assess that based on how he decided particular cases. Often I don’t know or couldn’t know exactly where the nominee falls on the judicial-restraint spectrum. So I don’t expect that debate to be a major factor involving a Romney nominee to the Supreme Court.

AA: Do you think that Romney appointees would seek to overturn Roe v. Wade? If so, what do you predict would happen at the state level?

CL: That’s hard to say. Although I think we can count on the four liberals on the court to not do anything to weaken Roe v. Wade, I think the conservatives who are currently on the court are divided. I always thought Roberts probably wouldn’t overturn Roe v. Wade, and now, given what happened with ObamaCare, I’m virtually certain that he wouldn’t. Scalia and Thomas would. Samuel Alito probably would. Kennedy we know wouldn’t; he usually votes on the liberal side of the abortion issue.

So you have a wide range there, and I don’t know where Romney’s nominees would fall in that range. I’d say it’s 50-50 that a Romney nominee or any Republican nominee would vote to overturn Roe v. Wade.

To whatever degree Roe v. Wade is weakened by the court, that allows more discretion on the state level. If it were overturned, then states would have complete discretion over regulating abortion; if it were weakened, then states would have more discretion.

Obviously policies would vary widely from state to state. In much of the country, certainly the East Coast, the West Coast, and many of the big industrial midwestern states, abortion would remain widely available. In other states I think you’d have a variety of laws; for the most part, I think abortion would probably be limited to early in pregnancy in those states. In some states, abortion might be limited to true danger to the mother’s life or health—not the current standard where the “danger to the mother’s health” exception swallows the rule—as well as to cases of incest and rape. I find it hard to believe that any state would ban abortion under all circumstances, but you’d have a wide range of laws, which is basically what you had before Roe v. Wade.

You’d have big fights, and abortion would be a big political issue on the state level, whether it was decided by the legislature or by a ballot measure. The debate would affect election of state legislators and the governor. Abortion would be as big an issue on the state level as it is in most Supreme Court nominations. It would also affect nominations and elections to state courts; it’s hard to believe there wouldn’t be uproar over the views of various candidates to the state bench.

AA: Given the political context as it stands, what are the most important issues the Supreme Court will decide over the next decade?

CL: Gay marriage, clearly. I’ve been saying for years, and we’re definitely getting closer, that there’s going to be a constitutional right to gay marriage eventually. That’s going to be the next Roe v. Wade.

There will be additional challenges involving ObamaCare. In addition to the enormous bill, there will be at least ten thousand pages of ObamaCare regulations. We’re already fighting over the requirement that religiously affiliated organizations provide insurance for birth control, including abortion-inducing drugs. And that’s just the beginning. I once wrote a Wall Street Journal op-ed anticipating what the fights over ObamaCare regulations might be, and I think that all still holds. Now that the opponents of ObamaCare have lost in the Supreme Court, unless ObamaCare is repealed, I think there will be a lot of big cases about the details and reach of the law.

Religious liberty, which is connected to ObamaCare, is a growing and unsettled area. We’re guaranteed to have continued fights in the Supreme Court over that issue.

There are going to be fights over cloning as well. I don’t know when it’s going to happen, but eventually someone is going to clone a human; and there are going to be all sorts of fights over not just laws that attempt to bar it, but over the rights of cloned embryos, and so on. One can only imagine the legal fights that will be driven by the development of new reproductive technology.

AA: How important is it to vote for one presidential candidate over another, in terms of the impact on the Supreme Court?

CL: There are few things a president can do that cannot be undone, and that will last for decades after the president leaves office. One of those things is selecting Supreme Court nominees. That’s true of all judicial nominees, but it’s most important at the Supreme Court, and Supreme Court justices tend to serve the longest because it’s a great job.

Presidents have become smarter about choosing young people who can serve for thirty or forty years. Roberts was fifty, and Stevens served until he was ninety; that would give Roberts potentially forty years.

Supreme Court appointments are going to affect us literally decades after a president is out of office. So that is something people should take note of. Many of the things we’re fighting about now, we will have forgotten about twenty years from now, but we’ll still be arguing about what the Obama or Romney nominees are doing decades from now.

I also often think about the effect that Supreme Court decisions will have on the election. I think that if the Arizona immigration decision had gone more the way I thought it would, and had been a big win for Arizona, that might have energized the Latino vote and made illegal immigration a bigger issue in the presidential campaign. Because the Supreme Court issued a mixed decision, the case did not have that political impact.

The ObamaCare decision, which characterized the individual mandate as a tax, seemed as though it would make it easier for Republicans to attack ObamaCare for imposing new taxes. That line of argument was dropped a few weeks after the decision, although it could come up again, especially now that Paul Ryan is contributing to the debate over Medicare and ObamaCare.

The Supreme Court is going to hear a very important affirmative action case in October, right before the election. Even though the court will not decide the case before the election, there will be a lot of activism and agitation for and against affirmative action surrounding the case. The presidential debates are going to take place right when that case is being argued, so it’s unimaginable that the candidates will not be asked about that. To date Obama has not been pressed on the issue, and Romney generally doesn’t like divisive issues, so I don’t really know how they’re going to answer that question.

Supreme Court decisions affect the election, and I think that’s going to be especially true this year. Because we will have seen some blockbuster cases close to the election—ObamaCare, immigration, affirmative action, gay marriage—the court will be more on people’s minds than it normally is.

For Romney, there may be more scrutiny of whom he would appoint to the court because of the ObamaCare decision. Conservatives were starting to relax after the appointments of Alito and Roberts. They felt like Republican presidents had gotten the hang of selecting Supreme Court nominees with a conservative judicial philosophy. But then Roberts blew that confidence out of the water with his ObamaCare decision. We’re back to conservatives understanding that it can’t just be any conservative nominee; it’s got to be the right conservative nominee.

AA: Thanks a lot for your time; I appreciate it.

CL: You’re very welcome!

About Ari Armstrong

Ari Armstrong blogs at AriArmstrong.com, and he has written for publications including the Denver Post and Complete Colorado. He is the author of Values of Harry Potter: Lessons for Muggles, a book exploring the heroic fight for life-promoting values in the Potter novels.

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