Trump op­po­nents tar­get Fed­er­al­ist So­ci­ety

Mem­bers on list for Supreme Court

The Washington Times Daily - - FRONT PAGE - BY ALEX SWOYER

Pres­i­dent Trump hadn’t even had a chance to of­fi­cially re­lease his new list of ju­di­cial nom­i­nees this month be­fore a pro­gres­sive ad­vo­cacy group is­sued a state­ment blast­ing one of the picks for hav­ing ties to The Fed­er­al­ist So­ci­ety.

A na­tional net­work of con­ser­va­tive and lib­er­tar­ian-lean­ing lawyers and schol­ars, the so­ci­ety has be­come the new bo­gey­man for the left, which sees it as the main source of shock troops in a Repub­li­can strat­egy to de­ploy an army of An­tonin Scalia-like judges to in­vade the fed­eral courts and the Jus­tice Depart­ment.

Democrats al­ready tried to de­rail the nom­i­na­tions of Supreme Court Jus­tice Neil M. Gor­such and Judge Amul Thapar in part be­cause they were on the list of 21 po­ten­tial nom­i­nees re­leased dur­ing the cam­paign by Mr. Trump — a list The Fed­er­al­ist So­ci­ety helped to craft.

Judge Thapar had to over­come uni­ver­sal Demo­cratic op­po­si­tion to win his seat on a fed­eral ap­peals court, while Demo­cratic an­tipa­thy to Jus­tice Gor­such forced Repub­li­cans to al­ter the Se­nate’s rules by cur­tail­ing the power of the fil­i­buster to get him in­stalled.

“We prob­a­bly can’t sup­port any nom­i­nee vet­ted by The Her­itage Foun­da­tion and The Fed­er­al­ist So­ci­ety,”

Se­nate Mi­nor­ity Leader Charles E. Schumer, New York Demo­crat, said dur­ing the de­bate over Jus­tice Gor­such.

For lib­er­als, the so­ci­ety has re­placed the bil­lion­aire Koch broth­ers as the dark force op­er­at­ing be­hind the scenes, work­ing to foil Democrats’ agenda. But that dark por­trait is laugh­able to Leonard A. Leo, ex­ec­u­tive vice pres­i­dent of The Fed­er­al­ist So­ci­ety, who says its goals are no se­cret.

“The in­sti­tu­tion is not em­bar­rassed by the fact that we want a ju­di­ciary that will say what the law is and not what it should be, so this idea that some­how we are in the dark shad­ows of Wash­ing­ton try­ing to pack the courts is re­ally ut­ter non­sense,” Mr. Leo said. “Some sen­a­tors just don’t re­ally un­der­stand who we are and what we do.”

Mr. Leo took a leave of ab­sence from the so­ci­ety to help Mr. Trump fill the Supreme Court va­cancy left by the death of Jus­tice Scalia last year. He re­joined the so­ci­ety af­ter Jus­tice Gor­such’s con­fir­ma­tion.

So far Mr. Trump has se­lected three of the 21 names on his list for ad­vance­ment: Jus­tice Gor­such, Judge Thapar and Colorado Supreme Court Jus­tice Al­li­son Eid, whom the pres­i­dent tapped June 7 to fill the seat Jus­tice Gor­such va­cated on the U.S. Court of Ap­peals for the 10th Cir­cuit. She was the nom­i­nee who im­me­di­ately faced push­back from the Al­liance for Jus­tice, which said she must have passed The Fed­er­al­ist So­ci­ety’s lit­mus test re­gard­ing op­po­si­tion to gun safety and abor­tion rights.

Yet another of Mr. Trump’s June 7 picks, Stephanos Bibas, has been a reg­u­lar pan­elist at Fed­er­al­ist So­ci­ety con­fer­ences. Oth­ers with so­ci­ety ties in­clude Noel Fran­cisco, Mr. Trump’s pick for solic­i­tor gen­eral; Rachel Brand, the newly con­firmed as­so­ciate at­tor­ney gen­eral; and Steven En­gel, Mr. Trump’s pick to be head of the Jus­tice Depart­ment’s Of­fice of Le­gal Coun­sel.

Democrats tried to fil­i­buster Ms. Brand, and ap­pear ready to at­tempt to block Mr. Fran­cisco and Mr. En­gel when their nom­i­na­tions reach the floor.

Mr. Leo said his or­ga­ni­za­tion is a “nat­u­ral pipe­line for tal­ent,” so it’s not sur­pris­ing for Mr. Trump to se­lect from its mem­bers, who are com­mit­ted to an orig­i­nal­ist, tex­tu­al­ist form of ju­di­cial in­ter­pre­ta­tion.

‘Open de­bate’ group

Founded more than three decades ago to counter the lib­eral or­tho­doxy that flows through law schools and the Amer­i­can Bar As­so­ci­a­tion, The Fed­er­al­ist So­ci­ety has in­cluded Scalia, Jus­tices Clarence Thomas and Sa­muel An­thony Al­ito Jr. and Chief Jus­tice John G. Roberts Jr.

The so­ci­ety op­er­ates chap­ters at ma­jor law schools and hosts gath­er­ings where le­gal is­sues — both hot top­ics and ar­cane points of law — are de­bated. Lib­eral le­gal stars of­ten ap­pear at the con­fer­ences as part of the de­bate.

The Fed­er­al­ist So­ci­ety also an­a­lyzes high-pro­file court cases, mak­ing its ex­perts avail­able for re­porters.

But Democrats say the or­ga­ni­za­tion’s trou­bling ac­tiv­ity comes in the ju­di­cial se­lec­tion process, where the so­ci­ety has been in­flu­en­tial in shap­ing the picks for Repub­li­can pres­i­dents.

Dur­ing Jus­tice Gor­such’s con­fir­ma­tion hear­ing, Sen. Pa­trick J. Leahy told him it’s a prob­lem that the pres­i­dent “out­sourced your se­lec­tion for the far-right, big money, spe­cial in­ter­est groups.”

“They have an agenda. They’re con­fi­dent you share their agenda. In fact, the first per­son who in­ter­viewed you for this nom­i­na­tion said they sought a nom­i­nee ‘who un­der­stands things like we do,’” said Mr. Leahy, Vermont Demo­crat.

Mr. Leahy sim­i­larly crit­i­cized Judge Thapar, who dur­ing his con­fir­ma­tion hear­ing de­scribed the or­ga­ni­za­tion as an “open de­bate” so­ci­ety.

Sen. Richard J. Durbin said it’s more ne­far­i­ous than that.

“Aside from the three or four fam­i­lies or groups that are ma­jor con­trib­u­tors to the Repub­li­can Party, there’s a whole group of dark money con­trib­u­tors who are not dis­closed, so this ar­gu­ment that this is just a de­bat­ing so­ci­ety, which is what Judge Thapar called it, I think re­ally doesn’t pass the laugh test,” the Illinois Demo­crat told The Wash­ing­ton Times.

Mr. Leo says there’s noth­ing pri­vate or se­cre­tive about his group, who is a mem­ber and what it stands for: “Our state­ment of pur­pose is right there for ev­ery­body to see. It’s ba­sic con­sti­tu­tional law and civics from high school. Our fun­ders are dis­closed in the an­nual report.”

Be­cause The Fed­er­al­ist So­ci­ety is a 501(c)(3) non­profit group, its donors can re­main anony­mous. But it does pub­lish its fi­nan­cial re­ports on its web­site each year.

From 2013 to 2015 the Koch broth­ers and the U.S. Cham­ber of Com­merce were among the most no­table names that rou­tinely do­nated more than $100,000 to the or­ga­ni­za­tion. Kellyanne Con­way, Mr. Trump’s se­nior ad­viser, and her hus­band rou­tinely do­nated more than $50,000 dur­ing each of those three years, as did the An­schutz Family Foun­da­tion, headed by Philip An­schutz, a bil­lion­aire Jus­tice Gor­such rep­re­sented as a lawyer in the early 2000s.

Chevron Corp., Delta Air Lines, BP Amer­ica Inc., Google, Pfizer Inc. and Mi­crosoft were among sev­eral cor­po­ra­tions that have do­nated to the so­ci­ety since 2013.

Dur­ing those same years, more than 30 donors giv­ing more than $100,000 chose to re­main anony­mous.

So­ci­ety of in­flu­ence

Josh Black­man, a law pro­fes­sor at South Texas Col­lege of Law who of­ten speaks at Fed­er­al­ist So­ci­ety events, said the net­work of the group’s at­tor­neys is so large that some of the lawyers in­side the Trump ad­min­is­tra­tion are even mem­bers.

“If you are a prom­i­nent re­spec­tive lawyer who is on the con­ser­va­tive side of the spec­trum, the odds are you will be a mem­ber of the so­ci­ety,” Mr. Black­man said. “This is not some sort of vast right-wing con­spir­acy, as some are try­ing to paint it.”

El­iz­a­beth B. Wy­dra, pres­i­dent of the left-of­cen­ter Con­sti­tu­tional Ac­count­abil­ity Cen­ter, said she’s en­joyed ap­pear­ing on pan­els at Fed­er­al­ist So­ci­ety events. But she ques­tioned the value of the or­ga­ni­za­tion’s ju­di­cial rec­om­men­da­tions — such as so­ci­ety mem­ber Damien M. Schiff, a May 8 pick to serve on the U.S. Court of Fed­eral Claims.

“On one hand, the con­fir­ma­tion of Jus­tice Gor­such is strong ev­i­dence of The Fed­er­al­ist So­ci­ety’s in­flu­ence on the ju­di­cial nom­i­na­tion process, but on the other hand, some Trump ju­di­cial nom­i­nees — for ex­am­ple, Damien Schiff, who called Jus­tice An­thony Kennedy a ‘ju­di­cial pros­ti­tute’ — in­di­cate a real lack of judg­ment on the part of this pres­i­dent and the peo­ple ad­vis­ing him,” Ms. Wy­dra said.

Marge Baker, vice pres­i­dent at Peo­ple For the Amer­i­can Way, said The Fed­er­al­ist So­ci­ety has long had in­flu­ence in shap­ing Repub­li­can ju­di­cial picks, but said that in­flu­ence has grown un­der Mr. Trump.

“This ad­min­is­tra­tion — more so than [any] I [have] ever seen — is out­sourc­ing that al­most sa­cred re­spon­si­bil­ity,” she said.

Curt Levey, pres­i­dent of the Com­mit­tee for Jus­tice and an at­tor­ney for Free­domWorks, equated the in­flu­ence that the ABA has had on the courts to that of The Fed­er­al­ist So­ci­ety.

“Most Demo­cratic ju­di­cial nom­i­nees be­long to the ABA, and the ABA rates ju­di­cial nom­i­nees — some­thing The Fed­er­al­ist So­ci­ety does not do — yet it would be in­ac­cu­rate to say that the ABA se­lects nom­i­nees,” said Mr. Levey. “In­stead, the ABA and Fed­er­al­ist So­ci­ety are one source of in­for­ma­tion for an ad­min­is­tra­tion try­ing to fill many dozens of ju­di­cial va­can­cies across the coun­try.”

Lib­er­als have their own le­gal or­ga­ni­za­tion, the Amer­i­can Con­sti­tu­tion So­ci­ety, which held its na­tional con­fer­ence in Wash­ing­ton last week and at­tracted Demo­cratic sen­a­tors and Jus­tice Stephen G. Breyer.

But it has not gained the sort of in­flu­ence — or the stigma among po­lit­i­cal op­po­nents — as that of The Fed­er­al­ist So­ci­ety.

“What’s re­ally un­usual is to out­source the process,” said Caro­line Fredrick­son, pres­i­dent of the Amer­i­can Con­sti­tu­tion So­ci­ety. “Cer­tainly we were con­sulted by the Obama ad­min­is­tra­tion as to peo­ple who would be good choices, but they con­sulted many dif­fer­ent sources, and they didn’t give out­side or­ga­ni­za­tions the role.”

Fed­er­al­ist So­ci­ety mem­ber Steven R. Klein said Democrats’ at­tacks don’t dis­credit the or­ga­ni­za­tion.

“It was stupid when they tried to do this dur­ing Jus­tice Roberts and Jus­tice Al­ito — dur­ing those con­fir­ma­tion hear­ings. It’s twice as stupid now,” said Mr. Klein.


New Supreme Court Jus­tice Neil M. Gor­such is one of many of Pres­i­dent Trump’s ju­di­cial picks with ties to The Fed­er­al­ist So­ci­ety, a group of con­ser­va­tive lawyers that the left says is steer­ing Mr. Trump’s poli­cies. Demo­cratic Sen. Richard J. Durbin de­cried that the iden­ti­ties of “dark” cash con­trib­u­tors to the group aren’t dis­closed.

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