March 28, 2019

The Third Federalist Society

Within the Federalist Society, is an operation funded by dark money and designed to remake our judiciary on behalf of a distinct group of very wealthy anonymous funders.

Mr. President, this week, the Senate conveyor belt of President Trump’s judicial nominees grinds on. So far, the president and the Senate leader have preserved an unprecedented pace in confirming federal judges, especially powerful federal appellate judges. They seem to have no higher priority.

What’s a little weird about this is that nearly 90% of Trump’s appellate judges, and both his Supreme Court justices, are members of the so-called Federalist Society. On the Supreme Court, Kavanaugh, Gorsuch, Alito, Thomas?—?all are members. Now that’s a little weird. What’s really weird is that through this Federalist Society vehicle, big special interests are picking federal judges.

In effect, there are three Federalist Societies.

The first one most lawyers know from law school. It is, for the most part, a debating society, made up of like-minded aspiring lawyers drawn to conservative ideas and judicial doctrine. They organize seminars and invite academics, and judges, and attorneys to speak. That’s terrific?—?no problem there.

The second Federalist Society is the parent organization of the campus debating society?—?a sort of highbrow think tank seeking to further conservative and libertarian judicial principles. It convenes fancy forums with conservative legal luminaries, from Supreme Court Justices to big-name politicians to renowned legal scholars. It issues newsletters and produces podcasts and policy recommendations. Through this, they hope to “reorder priorities within the legal system,” and create a network of members that “extends to all levels of the legal community.” I disagree with the system of law they are trying to impose, and their funding is suspiciously obscure, but this debate is a fine thing to have, so no objection there either.

Then there is the third Federalist Society. This one doesn’t have much in common with the law school debating society, and it certainly doesn’t operate like your run-of-the-mill Washington think tank. This Federalist Society is the nerve center for a complicated apparatus that does not care much about conservative principles like judicial restraint, or originalism, or textualism. This Federalist Society is the vehicle for powerful interests, which seek not to simply “reorder” the judiciary, but to acquire control of the judiciary to benefit their interests. This third Federalist Society understands the fundamental power of the federal judiciary to rig the system in favor of its donor interests?—?and as the Kavanaugh confirmation so clearly illustrated, it is willing to go to drastic lengths to secure that power.

I am here today to talk about that third Federalist Society.

Federalist Society Control of Nominating Process

The story of the “third” Federalist Society is partly the story of a man named Leonard Leo, the Society’s executive vice president. Mr. Leo is now the most influential person shaping our federal judiciary. Don’t be surprised if you’ve listening and you’ve never heard of him. He’s never been elected. He is not accountable to any voter. Instead, he’s the front man for interests that want to use the Federalist Society?—?and its surrounding network of front groups, and PR shops, and think tanks?—?to acquire control over our courts.

Renown court watcher Jeffrey Toobin describes Leo as “Trump’s subcontractor” on the selection of Supreme Court justices. More accurately, Mr. Leo is the subcontractor for a network of big corporate interests and front groups. In the summer of 2016, it was Leo who delivered the list of potential nominees to fill the vacancy left by the death of Antonin Scalia and the blocking of Merrick Garland. It was Mr. Leo who was involved in the Trump transition, helping to conduct outreach to potential Supreme Court picks, including Neil Gorsuch. Mr. Leo even orchestrated a million-dollar donation to Trump’s inauguration.

The role of the Federalist Society has been confirmed by President Trump’s own legal counsel, Don McGahn. McGahn told a Federalist Society gathering in 2017 and I’ll quote him here,

“Our opponents of judicial nominees frequently claim the president has outsourced his selection of judges. That is completely false. I’ve been a member of the Federalist Society since law school. Still am. So, frankly, it seems like it’s been in-sourced.”

Ha-ha. So funny.

The Federalist Society does more than pick the judges. They prepare them. They study the prospective nominees, and the senators who will ask them questions. They gather murder boards for nominees to practice for confirmation hearings.

Mr. Leo is proud of this operation. During the confirmation hearing for Justice Neil Gorsuch, Leo told Toobin with considerable satisfaction, I’ll quote him here,

“You know, the hearings matter so much less than they once did. We have the tools now to do all the research. We know everything they’ve written. We know what they’ve said. There are no surprises.”

In the Judiciary Committee, we see the result over and over again?—?meaningless committee hearings where nominees parrot empty words about applying law to fact and respecting precedent; and then, once confirmed and on the bench, those nominees deliver dependably for the partisan and corporate donors behind this Federalist Society operation.

Federalist Society Funders

Bad enough that judicial selection has been outsourced?—?or in-sourced?—?to a partisan entity. Worse is how non-transparent this all is. It’s hard to find out who’s behind it. It’s a very non-transparent problem, but here is what we’ve been able to piece together. The evidence is that the Federalist Society is funded by massive, secret contributions from corporate right-wing groups that have big agendas before the courts.

In 2017, the Federalist Society took $5.5 million via an entity called DonorsTrust. DonorsTrust’s has its sole purpose to launder the identities of donors to other groups, so that Americans don’t know the real backers of the groups. It is an identity removal machine for big donors. Through the hard work of investigators, journalists, and researchers, we have learned that the Koch brothers are among the largest, if not the largest, contributors to DonorsTrust. The Federalist Society’s total annual budget is about $20 million, so this $5.5 million in funding laundered through DonorsTrust provides more than a quarter of its entire budget.

Other shadowy corporate and right-wing organizations also donate millions to the Federalist Society. In one year, the Lynde and Harry Bradley Foundation, a right-wing trust, gave over $3 million to the Federalist Society.

Koch Industries, several other Koch-network foundations and trusts, and nearly a dozen wholly anonymous donors have given over $100,000 each to the Federalist Society. Tax documents from 2014, uncovered by the New York Times, show a donation of more than $2 million from the Mercer family?—?the secretive donors who helped start Breibart News and bankrolled the Trump campaign.

How do we know that these groups have a big agenda before the courts? We know that because they also fund a fleet of front groups that file so-called amicus briefs before courts signaling what results the big donors want. The Kochs, the Bradleys, the Mercers and their ilk spend millions to pursue an anti-regulation, anti-union, and anti-environment agenda. And they use the Federalist Society to stock the judiciary with judges who will rule their way.

Good Cop, Bad Cop

The Federalist Society as a 501(c)(3) organization is supposed to stay out of politics. The Judicial Crisis Network is a 501(c)(4), which can and does get involved in politics. The Judicial Crisis Network is led by a disciple of Leonard Leo’s, a former clerk for ultra conservative Justice Clarence Thomas. The Judicial Crisis Network has been described as, and I quote here, “Leonard Leo’s PR organization?—?nothing more and nothing less.” When it comes time to muscle a judicial nominee through Senate confirmation, JCN swings into action. Media campaigns. Attack ads. Big spending. That’s the JCN’s world.

Like its Federalist Society partner, the JCN gets massive sums of dark money, and it spends massively too. It spent $7 million dollars on campaigns to block Merrick Garland from getting a hearing on his nomination to the Supreme Court and it spent $10 million to support the nomination the blockage enabled, of Neil Gorsuch. And $7 million dollars and $10 million and it received one anonymous donation of $17.9 million. One donor gave $17.9 million to this operation to influence our judiciary. I will say, we need to know who that donor was. Because we’re in the minority, we’re going to be spurned and rejected if we try to get that information. On the House side, where they have the power of subpoena, we need to pursue that. It ought to be public information when one donor can spend nearly $18 million to influence the selection of a United States Supreme Court Justice. JCN then got $23 million from something called the Wellspring Committee. You’ll have to forgive some of this because it’s very obscure. These are peculiar groups that aren’t involved in any ordinary business or regular activity. The Wellspring Committee is a Virginia-based entity with ties to?—?you guessed it?—?Leonard Leo; and JCN then promised to spend as much on the Kavanaugh nomination as they had for Gorsuch.

Add to this mix of peculiarly funded and obscure organizations the BH Group, a shell corporation that gave $1 million to Donald Trump’s inaugural. BH Group received over a million dollars in something called “consulting fees” in 2017 from something else called the Judicial Education Project. Who are the Judicial Education Project? The Judicial Education Project is, guess what, the 501(c)(3) side of the Judicial Crisis Network. Why does a shell corporation give money to the Trump inaugural and also serve as a consultant to a legal organization fighting for the confirmation of specific Justices? What consulting did they do? Was there any consulting done at all? Great questions. Leonard Leo probably knows the answer. In 2018, he told the Federal Elections Commission that BH Group was his employer.

What It Wants

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.”

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. Let me give you two examples.

The Senate just confirmed Neomi Rao to the D.C. Circuit Court of Appeals. Rao comes right out of the deep bog of special interest dark money. Her bio appears on the Federalist Society website along with the list of 26 times she has been featured at Federalist Society events. 26 auditions one might describe them as. This is a person confirmed for the D.C. Court of Appeals who has never been a judge. She’s never tried a case. What has she done? She has served as the Trump administration’s point person for tearing down federal regulations as the head of the White House’s Office of Information and Regulatory Affairs. Among her greatest hits was taking one of Scott Pruitt’s proposed regulatory rollbacks for the climate change-driving gas methane from the oil and gas industry and tipping that regulation even further in favor of fossil fuel polluters. Out-Pruitting Scott Pruitt for the fossil fuel industry is hard to do. That may have been another audition for the court.

Rao also founded the so-called Center for the Study of the Administrative State at George Mason University’s Antonin Scalia Law School, which is devoted to conjuring ways to roll back as many regulations affecting these corporations as possible, and is funded by these same secretive groups.

I asked Ms. Rao about the funders of her center at the Scalia Law School. She claimed in her answers, and by the way I will add that these were questions for the record, written questions that she had time to consider, review and respond to. This was not a surprise attack of an unprepared witness at a hearing. She had weeks to answer. She claimed in her answers that, “to the best of her knowledge,” her organization had not received any money from the Federalist Society, from Koch family foundations, or from anonymous funders.

Well, that was simply not true. A Virginia open records request revealed that an anonymous donor and the Charles Koch Foundation donated $30 million earmarked specially for her organization. Guess whose interests she’s has been conveyed on to the D.C. Court of Appeals to protect?

Now consider the case of Kisor v. Wilkie, a case currently before the Supreme Court. It hasn’t gotten much attention; on its face it is about an obscure administrative law doctrine. But Kisor has been described as a “stalking horse for much larger game”: whether administrative agencies can continue to have the independence they need to regulate in the public interest. At stake could be the power of the EPA to protect our air and water; of the Department of Labor to continue to protect workers in the workplace; of the Securities and Exchange Commission to protect investors against financial fraud.

Many corporate interests hate regulation. The problem is regulations are pretty popular. Politicians may talk about cutting red tape, but their constituents really like clean air and clean water. They want safe workplaces and the peace of mind that their investments are sound.

That’s where judges like Naomi Rao and cases like Kisor come in. For decades we have operated in a system where Congress passes laws and administrative agencies fill in the details and implement those laws using their regulatory power, and their time, patience, and expertise. It has worked extremely well. Cases like Kisor slowly chip away at that system, shifting more and more power from expert regulatory agencies to courts, and to courts filled more and more with judges like Neomi Rao.

The Daily Beast influence reporter Jay Michaelson has written:

Sometimes thought of as a legal association, the Federalist Society is actually a large right-wing network that grooms conservative law students still in law school (sponsoring everything from free burrito lunches to conferences, speakers, and journals), links them together, mentors them, finds them jobs, and eventually places them in courts and in government.

And within this Federalist Society, is this operation I have described. Funded by dark money and designed to remake our judiciary on behalf of a distinct group of very wealthy and powerful, anonymous funders.

  • Add to that the dark money funding the so-called Judicial Crisis Network.
  • Add to that the dark money funding amicus briefs telling these judges what to do.

And then look at the outcomes when the Federalist Society-selected appointees get a majority on the court.

It is not, Mr. President, a pretty sight.