WSJ REVIEW & OUTLOOK
In Praise of the Establishment
Justice Gorsuch was vetted and confirmed by a political elite.
Judge Neil Gorsuch recites the oath of office as U.S. Donald President Trump listens during the swearing in ceremony of Gorsuch as U.S. Supreme Court associate justice in the Rose Garden at the White House in Washington, on Monday, April 10, 2017. PHOTO: T.J. KIRKPATRICK/BLOOMBERG NEWS
Neil Gorsuch was sworn in Monday as the 113th Justice of the U.S. Supreme Court, and if his many lower-court opinions are a guide he has the potential to be a worthy successor to the great Antonin Scalia. But we don’t want to let the moment pass without noting that Justice Gorsuch wouldn’t be taking his seat on the High Court without the good work of the much-maligned “establishment.”
Don’t tell Mark Levin, but Judge Gorsuch is a card-carrying member of America’s elite. He attended Columbia, Harvard and Oxford. He clerked at the Supreme Court, worked at a prestigious law firm, and spent a decade on the Tenth Circuit Court of Appeals. These are the credentials of an accomplished legal mind, and they and the judge’s first-rate temperament are the reasons that Democrats couldn’t defeat him, try though they did. Now he can apply that experience and intellect to advance conservative legal principles for a generation or more.
The establishmentarianism gets worse. Judge Gorsuch has also been associated with the Federalist Society, the group of lawyers founded in the early 1980s to promote conservative legal ideas. At the time the legal profession was dominated by progressives, as its main professional guild, the American Bar Association, continues to be.
The Federalist Society has grown over the years to become a legal counter-establishment. Its intellectual big tent includes libertarians, originalists, textualists and advocates of judicial restraint. Above all the Federalist Society serves as an affirmation that such legal principles are legitimate and shared by others. Its annual conference is a chance to network and share ideas—an establishment in action.
It is also no accident that Leonard Leo, an executive vice president on leave from the Federalist Society, played a sizable role developing the list of 21 potential Supreme Court nominees for Donald Trump. Mr. Leo and his allies serve as intellectual vetters to reassure conservative voters who have been disappointed with too many Justices nominated by Republican Presidents. Mr. Trump, the populist candidate, needed the Federalist Society as an elite legal credentialing service.
Then there’s that ultimate establishment body, the U.S. Senate, led by the ultimate institutionalist Mitch McConnell. The Majority Leader was able to maintain the unity of his variegated conference last year to deny a vote or hearing to President Obama’s nominee, Merrick Garland. Does anyone think Senators Ted Cruz or Mike Lee could have pulled that off?
Then this year Mr. McConnell kept moderate Members on board to break a Democratic filibuster of Judge Gorsuch. That outcome was far from a foregone conclusion, but Mr. McConnell worked behind the scenes rather than grandstand publicly that he had the votes. In the end the Senate establishment delivered for the conservative grass-roots.
None of this means that establishments are always right, and sometimes they need shaking up. Populism, properly led and channeled, can be useful in doing so. The tragedy of the current conservative movement is that too many of its leading voices seem to believe in never-ending insurgency that casts anyone in power as a sellout. They profit from raging at the failure that they promote.
But the goal of a political movement, populist or not, is not to be in perpetual opposition. The goal is to win elections and use the levers of power to achieve certain policy ends to make America a better country.
In other words, the goal is to replace the liberal establishment with conservatives of talent and experience who can succeed in governing. You might even call it a conservative establishment, and conservative ideas won’t succeed without it. Ask Justice Gorsuch.