It used to be that recommendations for US Supreme Court nominees would come from the Department of Justice, the Federal Bureau of Investigation, members of Congress, sitting judges and justices, and the American Bar Association (ABA).
But now it is the Federalist Society which has evolved into the de facto gatekeeper for conservative, right-of-center lawyers aspiring to be US Supreme Court judges under Republican presidents.
It has become public knowledge that the republican President Donald J. Trump relied on the Federalist Society to provide him a list of vetted attorneys/ judges for him to use in selecting future US Supreme Court nominees.
In short, the Federalist Society is to the conservative movement as the American Civil Liberties Union (ACLU) is to liberal causes.
Can you imagine the republican outcry if a democratic president enlisted the assistance of the ACLU to create a list of vetted US Supreme Court nominees to insure their liberal bona fides before the president made any decisions?
My question is where is the outrage from the democrats as the GOP in the US Congress are doing exactly what they would decry if the shoes were reversed?
This is why, when the republican President George W. Bush nominated the current US Supreme Court Chief Justice, John G. Roberts, Jr., in 2005, he did his best to deny Justice Robert’s association with the Federalist Society,
As per 7/29/2005 Washington Post report, “After President Bush tapped John G. Roberts Jr. for the Supreme Court, the nominee was widely reported to be a member of the Federalist Society — an assertion that White House officials vigorously disputed.”
“When it was later disclosed that Roberts was once listed as serving on the steering committee of the group’s Washington chapter, Bush aides continued to insist that Roberts has no recollection of ever being a full-fledged member of the conservative legal group.”
“The eagerness of the White House to distance Roberts from the Federalist Society baffled many conservatives. They believe the reaction fed a false perception that membership in the organization — an important pillar of the conservative legal movement — was something nefarious that would damage Roberts’s chances of confirmation.”
Note: On 9/10/18, this post was updated with the following information on Leonard Leo…
As per the 7/9/18 Daily Beast report, “When President Donald Trump nominates a justice to the Supreme Court on Monday night, he will be carrying out the agenda of a small, secretive network of extremely conservative Catholic activists already responsible for placing three justices (Alito, Roberts, and Gorsuch) on the high court.”
“At the center of the network is Leonard Leo of the Federalist Society, the association of legal professionals that has been the pipeline for nearly all of Trump’s judicial nominees. (Leo is on leave from the Federalist Society to personally assist Trump in picking a replacement for Justice Anthony Kennedy.) His formal title is executive vice president, but that role belies Leo’s influence.”
“Directly or through surrogates, he has placed dozens of life-tenure judges on the federal bench; effectively controls the Judicial Crisis Network, which led the opposition to President Obama’s high court nominee, Judge Merrick Garland; he heavily influences the Becket Fund law firm that represented Hobby Lobby in its successful challenge of contraception; and now supervises admissions and hires at the George Mason Law School, newly renamed in memory of Justice Antonin Scalia.”
“Leonard Leo was a visionary,” said Tom Carter, who served as Leo’s media relations director when he was chairman of the U.S. Commission on International Religious Freedom (USCIRF), in an exclusive interview with The Daily Beast. “He figured out 20 years ago that conservatives had lost the culture war. Abortion, gay rights, contraception—conservatives didn’t have a chance if public opinion prevailed. So they needed to stack the courts.”
Amazingly, said Carter, Leo has succeeded in this mission with few people taking notice.
“The Christian right has been written about a lot, but hardly anyone talks about the Catholic right,” Carter said. “4 Supreme Court justices—they’re more successful than anybody: the NRA, the Israel lobby, Big Pharma, no one else has had that kind of impact.”
Link to entire report: The Secrets of Leonard Leo, the Man Behind Trump’s Supreme Court
What is the Federalist Society…
As per the 7/29/2005 Washington Post report by Michael A. Fletcher, “Launched 23 years ago by a group of conservative students who felt embattled by liberals on the campuses of some of the nation’s most elite law schools, the Federalist Society for Law and Public Policy Studies has grown into one of the nation’s most influential legal organizations. The group claims more than 35,000 members, an increasing number of whom work in the highest councils of the federal government. Many Justice Department lawyers, White House attorneys, Supreme Court clerks and judges are affiliated with the group. Supreme Court Justice Antonin Scalia was a close adviser to the organization while he was a University of Chicago law professor.”
“Not only has the Federalist Society become a source of legal talent for Republican administrations, but through its frequent on-campus seminars and forums for practicing lawyers, the group is also credited with popularizing methods of legal analysis now widely advocated by many conservatives and employed by an increasing number of judges. Theories such as originalism, which holds that the Constitution has a fixed and knowable meaning rather than an evolving meaning that should adapt to contemporary times, is an idea put forward by many Federalist members. Using that standard, some judges have challenged previous court rulings allowing broad federal control over states on regulatory and civil rights issues, and maintaining the legal wall separating church and state.”
“I think the Federalist Society and some other conservative organizations have played a really important role in changing the terms of legal and, ultimately, political debate in the United States,” said Peter J. Rubin, a Georgetown University law professor and founder of the American Constitution Society, which aims to do for liberals and centrists what the Federalist Society has done for conservatives and libertarians.”
The growing influence of the Federalist Society has coincided with the rise of a network of conservative research organizations and public interest law firms that together have challenged hot-button issues such as affirmative action and prohibitions against publicly funded school vouchers.
“I think there is some concern about what the ideology of the Federalist Society is,” Rubin said. “I think there is some sensitivity that this is considered the hard core of the extreme right.”
“The idea that the Federalist Society would one day play a central role in the national legal debate, or that membership in the organization would be a point of contention for a Supreme Court nominee, seemed far-fetched when the group was formed by a law students in the early 1980s.”
“Northwestern University law professor Steven G. Calabresi, chairman and a founder of the group, said he started the organization after determining that he was one of few conservatives during his student days at Yale Law School. He said that notion crystallized after the 1980 election of Ronald Reagan when a professor asked a class of 90 who had voted for the new president. “I and one other person raised our hands,” Calabresi said.”
“Calabresi envisioned the organization as a vehicle for bringing conservative and libertarian legal thinkers to campus to share their ideas and counteract what he saw as a liberal bias. The idea spread to other schools, notably the University of Chicago, and now there are chapters at the vast majority of the nation’s 191 law schools.”
“Through the years, the Federalist Society, which has a $5 million budget, has also received substantial financial backing from a network of foundations that has supported a diverse menu of conservative causes, including promoting school vouchers and investigating the personal life of former president Bill Clinton. These include the John M. Olin and Charles G. Koch foundations. Conservative activist Richard Mellon Scaife is also a major benefactor.”
“At the same time, the society’s provocative legal forums and commitment to discussing legal principles have attracted sizable donations from companies such as Verizon, Microsoft and DaimlerChrysler. “From the beginning, my concern and the organization’s concern has been about the ideas,” said Eugene B. Meyer, the group’s president. “We try to focus on constitutional principles, getting ideas heard and discussed.”
“For all its influence, Federalist Society supporters — who include a handful of liberals — point out that the organization does not litigate cases or lobby the government, even as it has been closely identified with conservative politics. Nor does it explicitly support a particular policy agenda beyond its ideas for limiting the power of government and emphasizing that the courts should “say what the law is, not what it should be.”
“The Federalist Society has become kind of mythologized,” said Nadine Strossen, president of the American Civil Liberties Union, who often speaks at the group’s events. “For those who don’t really know what they do, the ACLU can be shorthand for the liberal agenda and the Federalist Society can be shorthand for the conservative legal agenda.”
Here is the rest of the story…
On September 5, 2018, Marcia Coyle of National Law Journal penned the following report, “Brett Kavanaugh Really Didn’t Want to Talk About the Federalist Society”
“I was the president’s nominee. I know he consulted widely—very widely—to get input at least on the people who were finalists,” Kavanaugh said Wednesday during an exchange with Sen. Sheldon Whitehouse, D-Rhode Island.”
“U.S. Supreme Court nominee Brett Kavanaugh was pressed Wednesday about what role, if any, the conservative Federalist Society played in his nomination.”
“Sen. Sheldon Whitehouse, D-Rhode Island, questioned Kavanaugh about comments White House Counsel Donald McGahn made in November that rejected the contention the White House has “outsourced” judge-picking to the Federalist Society. The group has been a major influence in the Trump White House selection of judicial nominees.”
“I’ve been a member of the Federalist Society since law school—still am,” McGahn said then. “So frankly, it seems like it’s been in-sourced.”
“Whitehouse noted that Kavanaugh had said in the past that it was improper to give one group a preferred position in the nomination process.”
“Kavanaugh couldn’t answer questions about what McGahn meant by the remarks and he said he did not know the “specifics” of the role played by Leonard Leo, executive vice president of the Federalist Society and now an adviser to the president on judicial nominations.”
“President Trump made the nomination. I know he spent a lot of time in those 12 days on this issue. I also know Mr. McGahn was directly involved with me.”
“Kavanaugh stressed a couple of times that he was discussing his own process, suggesting that he was aware the Federalist Society participated in crafting lists of judges Trump should consider for the courts. He also noted that many lawyers throughout the Trump administration are members of the Federalist Society.”
“Trump published two lists of potential Supreme Court nominees. Kavanaugh was not on the first list. His name first appeared on a list in November 2017. Kavanaugh, responding to a question from Sen. Mike Lee, R-Utah, who himself was recently considered for the Supreme Court, said nobody from the Federalist Society spoke with him after Justice Anthony Kennedy announced his retirement in late June.”
“In recounting his own selection process, Kavanaugh, a member of the Federalist Society since 1988, said he received a phone call from McGahn, who subsequently went to the federal courthouse and spoke with Kavanaugh for three to four hours.”
“I was the president’s nominee. I know he consulted widely—very widely—to get input at least on the people who were finalists,” said Kavanaugh, who served as co-chair of the Federalist Society’s school choice subcommittee, religious liberties practice group from 1999 to 2001. Kavanaugh has spoken regularly at Federalist Society-sponsored events.”
“Heritage Foundation senior legal fellow John Malcolm helped the Trump administration craft its Supreme Court shortlists. Malcolm, director of the Meese Center for Legal & Judicial Studies, pointed to several rulings from Kavanaugh—questioning the power of federal agencies—that made him an attractive candidate.”
“Those are topics that I know are of interest to the president and White House Counsel Don McGahn, so perhaps those decisions and his stellar record caused him to rise in the president’s esteem,” Malcolm told The National Law Journal this year.”
“Whitehouse asked why the Bush White House stopped using the American Bar Association in its judicial nomination process. Prior presidents had given the ABA advance notice of nominees for the purpose of that organization’s rating of a nominee’s qualifications.”
“Kavanaugh said the Bush White House believed it was inappropriate to continue that practice because the ABA often was an amicus party in cases before the Supreme Court.”