Many of the most consequential legal jobs are overwhelmingly concentrated in Washington. And for the most part, it’s not Trump’s Washington.
Donald Trump has found his U.S. Supreme Court nominee. Brett Kavanaugh, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, has lived a life within Washington’s conservative legal elite, and therefore a life far removed from the pathological political forces that have come to dominate some parts of the country. His life has also been removed from these forces because—like many elite conservative lawyers—he has embraced Washington, and Washington has embraced him. How Kavanaugh navigates the Washington of old and the Washington of Trump will go a long way towards predicting what Kavanaugh will do if he joins the Supreme Court.
The conservative legal elite in Washington are a tightly connected group of professionals. The fact that the most important legal and policy jobs are overwhelmingly concentrated around the District of Columbia means many of these lawyers spend all or large portions of their career living and working closely together in the same metropolitan area. And the fact that a clear minority of the elite legal profession is conservative means that there are fewer conservative lawyers to get to know in town.
Several institutions in Washington make a point of bringing and bonding these elite conservative lawyers together. The law firm Kirkland & Ellis had a 16-year period during which all 22 former Supreme Court clerks it hired had clerked for conservative justices—including Kavanaugh, who worked there for several years. Organizations like the Federalist Society and Heritage Foundation—both centered in Washington—bring together conservative lawyers with sufficient frequency to make sure they are united together.
The Washington conservative legal elite have met over the past decade to express misgivings about the anti-intellectualism or the bigotry that started to spread on the right during the Obama Administration. So-called “birthers” were largely pilloried rather than praised by this Washington crowd, and birthers could be ignored because there were not many of them anywhere close.
During the presidential campaign of 2016, the conservative legal opposition to these political forces became more organized and obvious and less subtle and silent. One collection of conservative constitutional lawyers with a major Washington presence criticized the “character, judgment, and temperament” of Trump. John B. Bellinger III—a high-ranking lawyer in the George W. Bush administration, and a graduate of Washington’s elite St. Albans School—organized a letter of Washington-centric national security professionals predicting that Trump would be the “most reckless President in American history.”
While it is not surprising that Washington’s conservative legal elite have embraced one another over the years, it is surprising how much Washington’s overwhelmingly liberal elite institutions have embraced them as well. The conservative legal elite largely did not try to create alternative basketball teams or schools for their kids, but integrated within Washington’s existing networks. We are all influenced by our neighbors, and the neighbors of the conservative legal elite are often progressives—and certainly not “birthers.”
Many have decried these connections between elite conservative lawyers and establishment Washington precisely because they move conservative lawyers away from the extremes. One conservative Washington federal judge popularized the idea of the “Greenhouse Effect.” This idea, named after reporter-turned-columnist Linda Greenhouse, suggested that receiving praise from other elites like their Washington neighbors moved justices to the left. Scholars have produced evidence to validate a version of this hypothesis.
Kavanaugh’s time in Washington has been a perfect example of the networks that dominated the personal and professional lives of conservative legal elites. He has been a Republican and a Washingtonian simultaneously, without always having to choose between those two identities. He clerked for Justice Anthony Kennedy, worked in the White House for President George W. Bush, and as a federal judge has given important lectures at conservative institutions like the American Enterprise Institute.
But rather than living in the traditionally more conservative Republican suburbs in Virginia—such as McLean, once referred to as “GOPtopia”— Kavanaugh spent large parts of his childhood in suburban Maryland. He attended a private school in North Bethesda, Georgetown Preparatory School (as did Justice Neil Gorsuch), that has featured its share of future Democratic Party leaders as students (from future members of Congress to a member of the Kennedy family). Kavanaugh’s father Ed was a lobbyist known well to leaders in both political parties. When Kavanaugh had his hearing before the Senate Judiciary Committee in 2004 on his nomination to the U.S. Court of Appeals for the District of Columbia, one senator remarked that “[w]e all know Ed.”
As an adult, Kavanaugh has resided in Chevy Chase, Maryland (around a mile from Chief Justice John Roberts), an area featuring not just many Democratic voters but many Democratic donors and staffers. His wife serves as the town manager of Chevy Chase Village Section 5. A college friend of Kavanaugh’s, Doug Gansler—the former Democratic Attorney General of Maryland—said “he’s a guy that does not live in a conservative bubble.”
In the Washington of Trump, though, is it possible for Kavanaugh to remove himself from the pathologies of Trumpism that have infected our country—and our capital? Trump has been hostile to Washington’s conservative economic and foreign policy elites, but he has embraced its conservative legal elites. Since taking office, the conservative legal network in Washington has seen many of their best and brightest receive important positions in the Trump White House or in his Justice Department, or to be nominated by him to the federal bench. Some of them—like Bellinger—have continued openly to refer to Trump as a danger to the Republic, but more and more of them have become part of Trump’s political world rather than separate from it.
One notable example of this was the implausibly pro-Trump statements Kavanaugh made at the White House Monday night. Kavanaugh said Trump has an “appreciation for the vital role of the American judiciary.” He also praised the process Trump used to select him, saying, “[n]o president has ever consulted more widely or talked to more people from more backgrounds to seek input for a Supreme Court nomination.”
As Kavanaugh is pulled into a different conservative Washington, will this push him away from the establishment Washington that also raised him? Washington insiders have not usually treated ideological opponents differently at the supermarket or at school, particularly the elite conservative lawyers who often operated at the highest reaches of Washington’s intellectual life. Kavanaugh’s neighbors, though, have a completely different attitude towards Trump and those affiliated with him. It is hard to imagine Bethesda or Chevy Chase looking the same at a Justice Kavanaugh at his daughter’s basketball games if he says a sitting president cannot be indicted.
Kavanaugh is likely to have many decades of service on the Supreme Court. How he handles those decades will be affected by how much he is a justice of the Washington where he was born, raised, and lived, versus how much he is a justice of Trump’s Washington.