The last week has seen an outpouring of support for the nomination of Judge Raymond Kethledge to the Supreme Court by those who vigorously opposed the election of President Donald Trump, the essential prerequisite to his selection.
The first widely publicized endorsement of Kethledge over the other reported frontrunners — including Judge Amy Barrett, Brett Kavanaugh, and Thomas Hardiman — came from radio host Hugh Hewitt, who solidified his support in an op-ed for the Washington Post Tuesday.
“The president sounds like a man who wants a second term, which means keeping his most high-profile and decisive campaign promises,” Hewitt wrote, citing Trump’s promise to nominate “‘originalists’ in the mold of Justice Antonin Scalia.”
But Hewitt had a different perspective when Trump wanted a first term. He switched his opinion on Trump’s acceptability a number of times over the course of the 2016 campaign, sometimes indicating he could support a nominee Trump. But his more typical — and final — position was Trump was unqualified to be president. He suggested in June 2016 after Trump had secured the delegate count needed to ensure nomination that the rules of the convention should be changed to preclude the nomination of the man Republican primary-goers overwhelmingly chose. In October, as the election drew near, Hewitt called on Trump to drop out of the race, all but ensuring victory for Hillary Clinton:
For the benefit of the country, the party and his family, and for his own good, @realDonaldTrump should withdraw. More and worse oppo coming
— Hugh Hewitt (@hughhewitt) October 8, 2016
On Tuesday, however, Hewitt wrote in Michigander Kethledge’s favor, invoking the popular support in the Upper Midwest that delivered Trump the White House. “Don’t make the easy ones hard, Mr. President. Pick a staunch originalist from the heartland that elected you. Nominate Raymond Kethledge,” Hewitt wrote.
Hewitt enlisted the support of more avowed Never Trumpers in his campaign to get Kethledge on the Supreme Court. On Monday, he invited Hoover Institute fellow and Weekly Standard columnist Adam White on his radio show to discuss the vacancy left by Justice Anthony Kennedy’s announced retirement.
“I mean, Kethledge looks great. A lot of the candidates look great. But in general, I think that’s right,” White told Hewitt when asked about the advantage of having an non-Ivy Leager as the nominee. “A little bit more diversity in their education would definitely not hurt.”
In 2016, however, White signed the now-infamous “Originalists Against Trump” letter, which read in part, “We also understand the argument that Trump will nominate qualified judicial candidates who will themselves be committed to the Constitution and the rule of law. Notwithstanding those he has already named, we do not trust him to do so.”
On Thursday and Friday, a blitz of articles defending Kethledge, written by his former law clerks, began to appear in two conservative publications, National Review and the Federalist. One defended him from criticism of his record on immigration, another on his Second Amendment bona fides, a third on religious liberty, and another echoing Hewitt’s “Gorsuch 2.0” characterization.
National Review and the Federalist, of course, were epicenters of the “Never Trump movement” during the 2016 campaign. National Review, for decades considered the gold standard of conservative opinion journals, famously devoted an entire issue to opposing Trump, assembling a multitude of pundits to unload on the then-Republican frontrunner. One of the magazine’s writers, David French, later had to push back on fellow Never Trumper Bill Kristol’s effort to enlist him as a third party candidate to spoil the election and ensure a Clinton victory. One of those pundits who signed on to National Review‘s Against Trump issue was Ben Domenech, Editor-in-Chief of the Federalist, who wrote at the time that “Conservatives should reject Trump’s hollow, Euro-style identity politics.”
On Twitter, however, Kethledge’s most stalwart defender has been University of Southern California Law Professor and contributor to the Washington Post’s Volokh Conspiracy legal blog Orin Kerr. Kerr responded to a Tuesday Breitbart News article about some legal conservatives concerns over Kethledge’s judicial philosophy with a 13-tweet thread disputing the characterization of the opinions in question and calling the article “bizarre:”
I don't normally respond to legal analysis in @BreitbartNews, but this piece claiming that Ray Kethledge inserts his own views of morality into the law instead of following the law is just bizarre. I thought I would say why. https://t.co/iRa2AGB0Dn
— Orin Kerr (@OrinKerr) July 4, 2018
When conservative author and columnist Ann Coulter first began to raise concerns over Kethledge’s immigration record that Breitbart News would later expand on, Kerr again defended Kethledge, dismissing the relevance of an opinion in which he granted an illegal alien the right to sue, rather than simply the company that failed to get him a visa:
I get the game being played here, but it's still amusing how a case on prudential standing under the Administrative Procedure Act becomes proof that a judge favors "open borders." https://t.co/AHe1f5Afob
— Orin Kerr (@OrinKerr) July 5, 2018
Kerr’s views on Trump in 2016 were expressed clearly, unequivocally, and succinctly in a three-sentence Washington Post blog post entitled “Never ever Trump.” “Polls suggest that Trump will likely lose to Hillary Clinton in November. I sure hope so,” he concluded.