Candidate Trump promised to drain the swamp, calling a halt to Washington business as usual. Like so many of his pronunciamentos, this one is belied by his actual practice. Take his choice of Neil Gorsuch to assume the Supreme Court seat of Merrick Garland. (I jest. The seat of Antonin Scalia). It demonstrates Trump is playing by the same old rules that he ran against.

Once upon a time, deference tended to be paid to a president’s Supreme Court choice. Democratic and Republican presidents could almost always count on getting their picks approved in the Senate, so long as they didn’t seem embarrassingly partisan, incompetent or extreme.

According to popular mythology, that all changed when the Senate failed to rubber stamp the nomination of Robert Bork by President Reagan in 1987. Partisan polemicists invented a new verb — to bork — implying vicious and unfair attacks on a nominee.

In fact, Bork was pretty far out of the mainstream in his thinking, which is exactly why Reagan picked him. Consequently, Democrats led by Edward Kennedy were tough on the nominee. But much of the bitterest opposition came from women’s groups and the NAACP who had examined Bork’s record and knew that he would be an enemy to their causes,

This is called politics, and the myth that it plays no part in appointing judges is laughable. Nevertheless, in spite Democratic antipathy, Bork got a televised hearing and a vote on the floor of the Senate, unlike Merrick Garland whose only flaw was being nominated by President Obama eleven months before his term expired. The Republicans discovered a previously unknown rule, not mentioned in the Constitution, barring presidents from making appointments in their final year.

What the right-wing take on the Bork nomination leaves out is the fact that he made a very poor witness on his own behalf. The more he talked, the less the American people liked the look of him, which gave the Senate permission to deny him the seat by a 42-58 margin. Six of the nays were Republicans.

Ever since, the Republicans have been getting even for Bork, allegedly. But in fact, ever since the 1950s the conservatives have been itching to undo the liberalizing Court tradition that began under the New Deal and continued through the Warren Court and beyond.

Wealthy libertarian activists like the Koch brothers and the Lynde and Harry Bradley Foundation have poured millions into organizations posing as think tanks that are actually propaganda mills and their lobbying arms, foremost among them The Heritage Foundation founded in 1973 and The Federalist Society, founded 1982.

The aim of the funders has been the appointment of judges to the Appeals Courts and the Supreme Court who would rule in ways favorable to their philosophy and economic advantage. So they have sought nominees favoring less regulation of business, less environmental and workplace protection, a shift of power from the federal government and back to the states, few restrictions on corporate financing of elections, no restrictions on guns, more restrictions on reproductive rights, and a narrow interpretation of the Commerce Clause tin order to give business carte blanche, government less power to interfere and labor fewer protections.

Obviously, the funders of the Society have been wildly successful in shifting the constitutional debate over many of these issues to the right and in installing judges with views that once would have made Bork blush. Two Federalist Society lawyers were installed at the George W. Bush White House tasked with picking nominees for vacancies on the courts who shared the right-wing views of the Federalist Society’s biggest donors.

Almost always the nominees put forward were Federalist members themselves. Logical, since ambitious, right-wing lawyers anxious to be sought rushed to become members of the Federalist Society, hoping to make themselves visible and eligible. Present membership is 40,000.

Among Society members who have helped yank jurisprudence to the right are two attorneys general of the United States, two solicitor generals, numerous appeals court judges, and Supreme Court Justices Scalia, Thomas, Alito, and Roberts.

Nine of he 21 possible nominees listed by candidate Trump were recommended by the Heritage Foundation and virtually all, including the three on his short list — Gorsuch, Hardiman and Pryor — were recommended by the Federalist Society.

This is hardly surprising since Trump, like Bush before him, outsourced the hunt for judicial candidates to the Federalist Society. Since neither Trump nor Bush are lawyers and had no real knowledge of Constitutional law, this was the path of least resistance and was guaranteed to produce reliably right judges.


Since the organization is a creature of the wealthy libertarian fringe, having received donations of over $3 million each from the Koch apparatus and the Bradley Foundation as well as from other anti-government billionaires, its picks were sure to be acceptable. It is clearly money well spent for the backers since it has bought courts sure to rule in ways favorable to plutocrats who oppose government and its regulations.

These so-called ”think tanks” used to maintain the fiction that they were independent and non-partisan,as evidenced by this piece of boiler plate: “The Federalist Society takes no position on particular legal or public policy issues.” This was deemed prudent since the hijacking of justice by money might cause alarm among the hoi polloi.

But Trump is his usual reckless and logorrheic fashion let the cat out of the bag by promising as a candidate that “All nominees will be picked by the Federalist Society.” And so, Judge Gorsuch was.

Trump may be dead-set against outsourcing jobs, but he’s gung-ho when it comes to outsourcing justice to the highest bidder. Clearly he knows that courts favorable to the billionaire Koch and Bradley fortunes will be favorable to his interests as well. The rest of us? Not so lucky.