InGorsuch,ConservativeActivistSees
TestCaseforReshapingtheJudiciary
ByERICLIPTONandJEREMYW.PETERS,NYTimes,3/18/2017
WASHINGTON — Deep into the Senate’s 68-page questionnaire of Judge Neil
M. Gorsuch, the Supreme Court nominee was asked to describe how he had
come to President Trump’s attention.
The first thing he wrote was, “I was contacted by Leonard Leo.”Most
Americans have probably never heard of Leonard A. Leo, who has long served
as executive vice president of the Federalist Society, an organization of
conservatives and libertarians who “place a premium on individual liberty,
traditional values and the rule of law.” But as Mr. Trump begins the process
of filling what could be the most federal court vacancies left to any president
in nearly a half-century, Mr. Leo is playing a critical role in reshaping the
judiciary.
He sits at the nexus of an immensely influential but largely unseen network of
conservative organizations, donors and lawyers who all share a common goal: Fill
the federal courts with scores of judges who are committed to the narrow
interpretation of the Constitution that they believe the founders intended.
“The Supreme Court needs to be an institution that helps to undergird limited
constitutional government,” said Mr. Leo, 51, whose cerebral, unassuming demeanor
belies the enormous clout he has developed in Washington.
It is a worldview that has brought Mr. Leo and his allies together with a range of
conservative players. In addition to major corporate backers such as Google and
Chevron, the Federalist Society’s supporters include well-known industry-oriented
and libertarian-minded business leaders like Charles G. and David H. Koch; the
family foundation of Richard Mellon Scaife; and the Mercer family, which gave
significantly to Mr. Trump’s presidential campaign and helped start Breitbart News.
This judicial reformation is being coordinated from Washington by a relatively small
team closely aligned around Mr. Leo, who is on leave from the Federalist Society
while he helps the White House shepherd the Gorsuch nomination. The network
includes John G. Malcolm of the Heritage Foundation and Ann Corkery, a
Washington lawyer who along with her husband, Neil, oversees the Judicial Crisis
Network and related dark-money groups that also support the cause.
While a free-market agenda and the desire to place judges who will be more skeptical
of federal and state regulations is a driving force, several central players in the group
are also motivated by intense religious beliefs.
“We can have an incredible impact,” said Carrie Severino, chief counsel of the
Judicial Crisis Network. Ms. Severino counts among her clients Sisters of Mary,
Mother of the Eucharist, a group of Catholic nuns who participated in a lawsuit that
reached the Supreme Court alleging that Obamacare limited their religious freedom.
Judge Gorsuch, 49, is their first test case, with his confirmation hearing set to begin
on Monday — but the conservative activists say more is at stake than just the
Supreme Court.
“Make no mistake,” Mr. Leo said in a speech last month at the Ronald Reagan Dinner
at the Conservative Political Action Conference. “How we deal with this vacancy now,
the strength that we as the pro-Constitution movement demonstrate in this fight, will
determine the extent to which we are able to both nominate and confirm proConstitution judges as we move forward.”
Mr. Trump already has 124 judgeships to fill — a backlog created by Senate
Republicans who blocked the confirmation of many of President Barack Obama’s
nominees. That includes 19 vacancies on the federal appeals courts.
Because of the age of many judges today, the White House expects between 70 to 90
appeals court positions to open up over the next four years. That would give Mr.
Trump the opportunity to fill anywhere from one-third to half of all appellate seats —
a profound impact considering that those courts are often the final word on
thousands of cases that never reach the Supreme Court.
The scale and sophistication of the right’s judicial confirmation efforts would seem to
portend a dark period ahead for the left, which, despite having made great strides
under Mr. Obama, finds itself outmaneuvered.
“The right wing, very purposely and methodically, has built a stable of nominees that
fit their ideological profile, and it’s been a national movement, well organized and
strategized,” said Senator Richard Blumenthal, a Connecticut Democrat, who serves
on the Judiciary Committee. “Frankly, I think the progressives of the Democratic
Party have been less vigilant and vigorous than the right.”
HitchingtoTrump
There was little question to whom Mr. Trump would turn when he was putting
together his list of possible Supreme Court nominees last year: Mr. Leo, who has
spent almost his entire legal career at the Federalist Society, after graduating from
Cornell Law School in 1989.
The father of seven children and fond of speaking in biblical allusions, he rose to
prominence more than a decade ago as the Republican Party’s co-chairman of
Catholic outreach. At Justice Antonin Scalia’s funeral last year, he read from the Old
Testament.
When President George W. Bush made his two nominations to the Supreme Court in
2005, picking Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., Mr.
Leo assumed the responsibility of coordinating outside campaigns to buttress their
Senate confirmations. It is a role — which he has described as analogous to running a
political campaign — that he has reprised with the Gorsuch confirmation.
Mr. Leo has an exalted reputation among conservatives, including Scott Pruitt, the
former Oklahoma attorney general who is now head of the Environmental Protection
Agency. Mr. Pruitt recalled in a speech last year at the conservative bastion Hillsdale
College how he was in Washington for a Federalist Society meeting in 2013. Mr. Leo
asked him to stay an extra night for dinner, without giving a hint of who might show
up.
“Any time that Leonard asks you to go to dinner, you stay, because he feeds you well,”
Mr. Pruitt said. But it was not only the menu that was impressive. Mr. Pruitt arrived
to see Justices Scalia and Clarence Thomas at the table.
“We spent three hours talking about the Constitution and things that we were
involved in as attorneys general,” Mr. Pruitt recalled. “It was a fabulous time.”
Mr. Leo has been at the center of Mr. Trump’s judicial selection process since last
spring, when Donald F. McGahn II, Mr. Trump’s campaign lawyer and now the White
House counsel, introduced them. It helped enormously that Mr. Leo came to the
campaign at a critical time of need.
Mr. Trump’s relationship with the conservative moment was tenuous at best. Last
March, a prominent group of Catholic leaders in the United States, including several
with close ties to Mr. Leo, published an open letter in National Review, a
conservative magazine, declaring Mr. Trump “manifestly unfit to be president of the
United States.” It was the type of rejection that was becoming all too worrisome for
Mr. Trump. At the same time, a faction of delegates threatened to block his
nomination.
So in May, in an unprecedented move for a presidential candidate, Mr. Trump
shrewdly released the first of two lists of people he was considering to fill the
Supreme Court vacancy left by the death of Justice Scalia, at first with help from Mr.
Malcolm of the Heritage Foundation. Judge Gorsuch’s name was added in a second
version of this list, with Mr. Trump thanking the Federalist Society and Heritage for
their help.
Polls showed this published list of 21 names was a significant factor in the election.
Of the one-fifth of voters who said the Supreme Court was the most important issue
in their decision, 57 percent voted for Mr. Trump.
Mr. Trump gave broad discretion to Mr. Leo and his colleagues. Mr. Trump’s most
important criterion, these lawyers said, was that he wanted judges who were “not
weak” and of “high quality.”
Their approach in coming up with candidates was similar to President Ronald
Reagan’s. “They had this very sophisticated, detailed frame of reference from which
they could begin to say, ‘O.K., well, who understands these things like we do?’” Mr.
Leo said in an interview, referring to the Reagan era. “As opposed to an
administration that might sit around and say, ‘Who’s a really smart lawyer who’s
been really accomplished?’ Or, ‘Hey, what about my frat buddy from 1964?’”
And as Reagan did by nominating Justices Scalia and Anthony M. Kennedy, Mr. Leo
and his conservative colleagues have looked for judges who can serve as long as
possible. “Young is good,” Mr. Leo said. “There will be an opportunity for a
transformation of the federal bench.”
ASmallNetwork
Even before Mr. Trump walked into the East Room of the White House on Jan. 31 to
name Judge Gorsuch as his first Supreme Court nominee, the public relations
campaign to confirm him had started.
“Neil Gorsuch’s talent and skill would make for a great #SupremeCourt Justice,” said
a post sent out on Twitter by the Judicial Crisis Network on the afternoon before the
announcement.
By that point, television and radio advertisements about Judge Gorsuch were already
on their way to stations across the country. The campaign focused on five states
picked for a very explicit reason: Each had a Democratic senator up for re-election
next year, and all the states had voted to elect Trump.
This more public part of the push — Mr. Leo has never been particularly comfortable
in the spotlight — has been handled by Ms. Severino, 40, a Harvard Law School
graduate who served as a clerk to Justice Thomas and is a frequent speaker at
Federalist events. Ms. Severino said the group’s efforts to secure Judge Gorsuch’s
confirmation reflected the consensus of American voters, who picked Mr. Trump in
part because of the Supreme Court choices he said he would make.
But an examination of the Judicial Crisis Network’s operations and financial records
suggests that the group, in fact, has an incredibly narrow base. In 2015, the last year
that tax records were available, the Judicial Crisis Network’s entire budget of $5.7
million appears to have come from a single donor, an organization called the
Wellspring Committee, based in Manassas, Va., that describes its mission as
advancing “limited government and free markets.” Judicial Crisis and a sister
organization, the Judicial Education Project, reported in tax returns that they had a
total of only two employees and no volunteers, and instead largely relied on outside
consultants, like CRC Public Relations, a Virginia firm that also lists the Federalist
Society and other conservative groups as clients.
Ms. Severino, asked whether her group was simply a shell to secretly move money on
behalf of others, said the Judicial Crisis Network should not be judged based on the
size of its staff.
“We are not trying to be a large membership organization,” Ms. Severino said in a
written statement, sent by CRC, which asked that the remarks be attributed to her.
“There are others who excel at that type of work, and we are happy to support them
as allies.”
It is clear that there are close personal ties among the leaders of the push to confirm
Judge Gorsuch. Ann and Neil Corkery help run a network of nonprofit organizations
like Catholic Voices USA, an organization that promotes the church’s views. They
also help Mr. Leo in managing the National Catholic Prayer Breakfast, tax records
show.
There are even overlaps with the funding. Mr. Corkery is listed as treasurer of the
Judicial Crisis Network. A separate Internal Revenue Service filing shows that Ms.
Corkery is president of the Wellspring Committee. Tax records from the past two
years also show that Mr. and Ms. Corkery were paid nearly $600,000 to help run 15
nonprofit groups, including the Judicial Crisis Network. They declined requests to
discuss their overlapping roles in these organizations.
The impact of this intertwined network can also be seen in a number of state-level
efforts to appoint more originalist judges.
Last year, the Judicial Crisis Network and a second organization it donated money to
bought political advertisements in two Supreme Court races in Arkansas, which are
decided directly by voters. The advertising by the groups, which spent far more than
the candidates themselves, attracted widespread attention to what has normally been
a low-profile race.
The intervention was considered disturbing enough that the Republican-controlled
state legislature held a special hearing last year where those targeted by the groups
testified.
“I suppose some with misplaced or contorted egos might be flattered these shadowy
groups would spend over a half-million dollars directed to keep one off the court,“
said Clark W. Mason, a Little Rock, Ark., lawyer who was one of the candidates for
the Supreme Court. “But I am outraged. They are attempting to shift the scale of
justice.”
The legislature this year failed to pass a law that would require a group like Judicial
Crisis to disclose the source of its funding if it wants to play a similar role in future
elections in the state.
Judicial Crisis has also donated more than $2 million to the Republican Attorneys
General Association — making it the single largest contributor in the 2016 election
cycle, as it sought to elect top state law enforcement officers who could bring
conservative-inspired cases to state or federal courts with judges the group also
helped put into place.
Mark Holden, general counsel of Koch Industries, a donor to the Federalist Society,
said in an interview that the efforts of these conservative legal activists were
necessary to overcome a bias favoring judges who put their agendas before the law.
“It’s very important that we have the right people in place, people who will follow our
laws, judges who will follow our laws as they have been written and not as they wish
they were written,” Mr. Holden said.
One point all the parties agree on: Mr. Trump must not repeat the mistake that Mr.
Bush made in moving slowly to fill the many vacancies in the federal court system.
Mr. Leo is ready to play his part.
“Those nominations to the lower federal courts are a high priority to the president
and for senior administration staff,” Mr. Leo said in an interview last month that was
broadcast on C-Span. He said the number of vacancies was historic. “It is something
that is very much on the president’s mind.”
THE FEDERALIST SOCIETY
FROM WIKIPEDIA
The Federalist Society for Law and Public Policy Studies, most frequently called
simply the Federalist Society, is an organization of conservatives and libertarians
seeking reform of the current American legal system in accordance with a textualist
or originalist interpretation of the U.S. Constitution. It is one of the nation's most
influential legal organizations.[6] It has played a significant role in moving the
national debate to the right on the Second Amendment, campaign finance regulation,
state sovereignty, and the Commerce Clause. It plays a central role in networking and
mentoring young conservative lawyers.[7]
The Federalist Society began at Yale Law School, Harvard Law School, and the
University of Chicago Law School in 1982 as a student organization that challenged
what its members perceived as the orthodox American liberal ideology found in most
law schools. The Society asserts that it "is founded on 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."[1]
The Society is a membership organization that features a Student Division, a Lawyers
Division, and a Faculty Division. The Society currently has chapters at over 200
United States law schools and claims a membership of over 10,000 law students.
(The annual budget is around $15,000,000). The Lawyers Division comprises over
60,000 practicing attorneys (organized as "lawyers chapters" and "practice groups"
within the Society's Lawyers Division) in eighty cities.[2] Its headquarters are in
Washington, D.C. Through speaking events, lectures, and other activities, the
Federalist Society provides a forum for legal experts of opposing views to interact
with members of the legal profession, the judiciary, law students, and academics.[2][8]
The society was started by a group of some of the most prominent conservatives in
the country, including Attorney General Edwin Meese, Solicitor General and Reagan
Supreme Court nominee Robert Bork, Indiana congressman David M. McIntosh, Lee
Liberman Otis, Energy Secretary and Michigan senator Spencer Abraham, and
Steven Calabresi. Its membership has since included Supreme Court justices Antonin
Scalia, John G. Roberts, Clarence Thomas and Samuel Alito.[9]
The Society looks to Federalist Paper Number 78 for an articulation of the virtue of
judicial restraint, as written by Alexander Hamilton: "It can be of no weight to say
that the courts, on the pretense of a repugnancy, may substitute their own pleasure
to the constitutional intentions of the legislature... The courts must declare the sense
of the law; and if they should be disposed to exercise WILL instead of JUDGMENT,
the consequence would equally be the substitution of their pleasure to that of the
legislative body."
Its logo is a silhouette of former President and Constitution author James Madison,
who co-wrote The Federalist Papers. Commissioner Paul S. Atkins of the U.S.
Securities and Exchange Commission considered Federalist Society members "the
heirs of James Madison's legacy" in a speech he gave in January 2008 to the
Federalist Society Lawyers' Chapter of Dallas, Texas. Madison is generally credited as
the father of the Constitution and became the fourth President of the United
States.[10]
The Society's name is said to have been based on the 18th-century Federalist Party;[11]
however, James Madison associated with Thomas Jefferson and the DemocraticRepublican Party in opposition to Federalist Party policies borne from a loose
interpretation of the Commerce Clause. The Federalist Society's views are more
associated with the general meaning of Federalism (particularly the New Federalism)
and the content of the Federalist Papers than with the later Federalist Party.
The Federalist Society holds a national lawyers convention each year in Washington,
D.C. It is one of the highest profile conservative legal events of the year.[12][13]
Speakers have included former ACLU head Nadine Strossen, business executive
Carly Fiorina, former BB&T chairman John Allison, former Attorney General
Michael Mukasey, and U.S. Senator Mike Lee.[14]
Federalist Society members helped to encourage President George W. Bush’s
decision to terminate the American Bar Association’s nearly half-century-old
practice of rating judicial nominees' qualifications for office. Since the
administration of President Dwight D. Eisenhower, the American Bar Association
has provided the service to presidents of both parties and the nation by vetting the
qualifications of those under consideration for lifetime appointment to the federal
judiciary. The Federalist Society alleged that the ABA showed a liberal bias in its
recommendations.[15][16][17] For example, while former Supreme Court clerks
nominated to the Court of Appeals by Democrats had an average rating of slightly
below "well qualified", similar Republican nominees were rated on average as only
"qualified/well qualified." In addition the ABA gave Ronald Reagan's judicial
nominees Richard Posner and Frank H. Easterbrook its lowest possible ratings of
"qualified/not qualified".[18] Judges Posner and Easterbrook have gone on to become
the two most highly cited judges in the federal appellate judiciary.[19]
In The Federalist Society by Michael Avery and Danielle McLaughlin, the authors
write that every federal judge appointed by both President George H.W. Bush and
President George W. Bush was either a member or approved by members of the
Federalist Society.[8] Avery and McLaughlin write that the Federalist Society is
primarily a “group of intellectuals.”[20]
The Federalist Society helped to assemble the list of 21 people from which Donald
Trump has said he will choose a nominee to replace Antonin Scalia on the U.S.
Supreme Court. Nine of the 21 individuals spoke at the Federalist Society's annual
convention in late November 2016, while nearly all the others were in
attendance.[21][22]
(ADDED BY ALAN: NEIL GORSUCH IS A MEMBER OF THE FEDERALIST SOCIETY)
Notable members
Notable members of the Society have included:
United States Supreme Court Justice Antonin Scalia (who served as the original
faculty advisor to the organization)[23]
Supreme Court Justice Samuel Alito[8]
Supreme Court Justice Clarence Thomas[8]
United States Court of Appeals Judge (10th Cir.) Neil Gorsuch
United States Court of Appeals Judge (D.C. Cir.) Thomas Griffith[25]
United States Court of Appeals Judge (5th Cir.) Edith Clement[26]
Alex Kozinski, former Chief Judge of the United States Court of Appeals for the Ninth
Circuit[27]
Former United States Assistant Attorney General Peter Keisler, a co-founder of the
Federalist Society[7]
Former United States Court of Appeals Judge (D.C. Cir.) Robert Bork[28]
Former United States Attorney General Edwin Meese[27]
Former United States Solicitor General Theodore Olson[27]
Former United States Solicitor General Paul Clement[29]
President Pro Tempore of the U.S. Senate Orrin Hatch[23]
Former President of Baylor University and former independent counsel Kenneth
Starr[23]