Though President Donald Trump was impeached and faces a trial to determine if he will be removed from office, his judicial nominees are still being heard and confirmed.
Thirteen judges were confirmed the same week he was impeached in the House, bringing Trump’s number of judicial appointees to more than 180.
During the December Democratic debate, the topic of the courts was discussed for about five minutes by only two candidates. Mayor Pete Buttigieg and Sen. Amy Klobuchar talked about the type of judges they would appoint, but no one mentioned the deeper, behind-the-scenes work that has gone into shaping the federal courts to be more conservative.
The ability of Trump’s appointees to move through the Senate, while President Barack Obama’s were stalled, is the responsibility of Senate Majority Leader Mitch McConnell.
But many of the appointees are courtesy of the Federalist Society.
The group has been in the shadows for most of the time it’s been active, but it’s earned more focus in the Trump Administration. As a result, they’ve also received more pushback.
“The Federalist Society is the organization that developed Donald Trump’s Supreme Court shortlist,” said Christopher Kang, legal director for Demand Justice.
That shortlist made news when Trump made the unprecedented move to release it as a candidate back during the 2016 election.
“So, I think that they have gotten a lot more notoriety and visibility on the right,” Kang said. “But also, you’re starting to see more activism from groups like Demand Justice sort of lifting out the negative aspects of the Federalist Society.”
The Federalist Society recruits and promotes right-wing judges with views previously on the fringes of legal thought, like the idea that corporations can have rights to speech and religious beliefs and that women and the LGBTQ community aren’t “protected classes” under constitutional law.
Prior to the Trump Administration, the Federalist Society promoted Justices John Roberts and Samuel Alito, too.
“That seems to be the preeminent prerequisite for any nominee. Not ties to a home state legal community, not whether they’re legal luminaries, not whether they even have relationships with home state senators, but whether they’re Federalist Society members,” said Daniel Goldberg, legal director at Alliance for Justice.
The Federalist Society has extended its reach beyond Washington, D.C. The group boasts chapters at law schools across the country, which is where it got its start.
The Federalist Society formed in 1982 because of students in law schools at Yale, Harvard and the University of Chicago. Their goal then, that has carried on to present day, was to promote alternate, conservative ideas about the Constitution.
In particular, the Federalist Society promotes a textualist interpretation of the Constitution, a philosophy meant to bring interpretations of the law in line with what they believe America’s Founding Fathers meant when they wrote it. It frequently calls this philosophy “pro-Constitution.”
On its website, the group defines its goals like this: “We are committed to the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”
In service of that goal, the national group hosts conferences and galas. And chapters at universities host talks about different questions in the law, inviting legal experts across the ideological spectrum.
This is the face the Federalist Society wants people to see.
Executive Vice President Leonard Leo has gone to great lengths to avoid the spotlight and to mask the other goal of the Federalist Society, Goldberg believes.
“Leonard Leo makes clear in an interview that he was overseeing a ‘political campaign’ to take over the courts,” Goldberg said. “They are inconsistent on their legal theory, but very consistent on the policy goals they want to accomplish, which are siding with the wealthy and the powerful over the rights of everyday Americans.”
Most of those policies target minority groups, from African Americans to women to the LGBTQ community. And to accomplish them, Leo proposes anti-choice, right-wing judges with histories of opposition to those issues.
By changing the structure of one branch of government, the goal is to restrict the overall power of the federal government. After all, strict interpretations of the Constitution asserting that Congress must abide by the document impose limits on the laws Congress can pass.
“If you look at the courts and how they’re supposed to be used, and the policies that the conservatives are challenging, they’re not just bipartisan popular policy, they’re also policies consistent with our Constitution,” Kang said. “When you have the court going out of its way to interpret the Constitution differently, more narrowly, more unfairly in order to reach these conservative ends, then that’s a problem.”
“This conservative Supreme Court is poised to strike them down in a way that these conservative legislatures or conservatives couldn’t do through the legislature or even through the executive branch,” he said. “And I think it’s very clear that this is how they are seeking to make change on their side, and to use the courts to implement and affect policy in a way that they could never do through the other branches of government.”
Growth And Development
To build and maintain a wide-reaching organization like the Federalist Society requires money. And early on in its life, the Federalist Society attracted the attention and funds of prominent conservative groups and people associated with organizations like the Koch Brothers.
That continues to this day.
The New York Times in 2017 published an excerpt of the Federalist Society’s annual report of donors. In the highest tier donating $100,000 or more, both Koch brothers and Koch Industries, Inc. are listed. As is Google, Inc. and 14 anonymous donors.
In May, the Washington Post published an investigation of the money flowing into the effort to change the makeup of the courts. The reporters found that between 2014 and 2017, nonprofit groups connected to Leo raised more than $200 million in anonymous donations.
Goldberg said the Federalist Society represents another way for wealthy Americans to wield influence.
“[The Federalist Society] might have started out 40 years ago as a society of scholars and students seeking to advance legal discourse through open-minded debate, but the reality is they’re funded through dark money. Through the wealthy and the powerful trying to accomplish policy objectives through the courts,” he said.
The Federalist Society used to operate without much attention, but that’s changing.
He outlined how the Federalist Society selects judicial nominees and prepares them for confirmation hearings, the shadowy funding by anonymous groups and by others who clearly advocate for conservative, anti-regulation, anti-civil rights legislation.
Whitehouse also spotlighted how part of the plan involves gutting regulatory power by shifting the responsibility away from agencies to courts packed with judges who oppose federal regulations.
“While the apparatus may be complex and difficult to track, its goal is simple. Don McGahn has explained it succinctly: ‘Regulatory reform and judicial selection are … deeply connected,’” the senator said. “Translated, that means the Federalist Society’s goal is to pack the judiciary through judicial selection with judges who will deliver what is called regulatory reform — an extreme anti-regulation, anti-union, anti-environment agenda for those corporatist Federalist Society funders.”
Whitehouse isn’t alone in his objection to the Federalist Society’s amount of influence. Groups like Demand Justice and the Alliance for Justice have been vocal. But, People for the American Way has also taken a stand. And Fix the Court advocates for judicial reforms to make the system fairer, like term limits and allowing cameras in federal courtrooms.
Lately, Demand Justice has launched the highest profile opposition to the Federalist Society.
At a November gala celebrating Justice Kavanaugh, Demand Justice set up a large screen broadcasting Dr. Cristine Blasey-Ford’s 2018 testimony to the Senate Judiciary Committee. The video was broadcast to people standing in line. They also were greeted by protestors.
“I think that what we’re trying to do is shine a light on the Federalist Society and sort of the fact that they are behind all of President Trump’s ideologically extreme judicial appointments,” Kang said. “And one of the things we’re trying to do in particular is show how the Federalist Society is using its platform now to promote and rehabilitate Brett Kavanaugh and his image.”
Kang served in the Obama Administration for almost seven years and one of his responsibilities was vetting and overseeing the selection of judicial nominees.
A good nominee for the federal court, he said, is someone who can be impartial.
“I think that legal experience is important to temperament, by which I not only mean, like having a good temperament generally, but also just the ability to take off your hat as a lawyer and be an impartial judge,” he said. “Inherently, being a judge is a very different role than being a lawyer.”
Kang said diversity reflective of the country is also important because it will lead to different perspectives and, maybe, greater faith in the judiciary.
Demand Justice also put together a list of judges and legal scholars it wants Democratic presidential candidates to consider for Supreme Court nominations. The list features racial and gender diversity and includes members of the LGBTQ community and people with different kinds of legal experience, ranging from teaching to service as public defenders.
Groups like Alliance for Justice are also working to identify diverse, qualified judges by partnering with legal communities across the country to find people with the right experience.
It’s important to remember these are lifetime appointments to positions with the ability to influence the way laws are written and interpreted. And that effect could be felt for a long time into the future. And it could take a long time to rebalance the courts.
“You see [the influence] trickling down to all of these lower court nominations and in a breadth and depth that’s not like anything we’ve ever seen before,” Kang said. “We think that the scale is so different that it’s really incumbent upon people to reexamine what they thought of the Federalist Society and how it acts in this political arena.”
“These are not lawyers who are being chosen for their legal excellence,” Kang added. “They’re being chosen for their ideological beliefs.”
By Nikoel Hytrek