Targeting the Judiciary: The Federalist Society
Founded to advance conservative ideas and legal theories among up-and-coming conservative and libertarian lawyers, the Federalist Society has grown to be the most dominant and historically significant influence in the nominating process of Supreme Court justices and judges named to the federal appeals and district courts.
The Federalist Society quickly grew from a student-run discussion group to spearheading the conservative takeover of the American judicial system. Organized to promote “originalist” interpretations of the law, six of its members now serve as justices on the Supreme Court.
The Federalists’ first recommendation for the Court, Antonin Scalia, was nominated in 1986 by President Reagan and confirmed that year. He served until his death in February 2016, when Senate Majority Leader Mitch McConnell infamously refused to hold hearings to approve President Obama’s nominee, Merrick Garland.
During his 2016 presidential campaign, Donald Trump reassured party conservatives that he would rely on the Federalist Society to fill judicial positions. By the time he left office, his three nominees to the Supreme Court, all recommended by the Federalist Society, sat on the bench. The first of the three to be named, Neil Gorsuch, was nominated 10 days into Trump’s presidency to replace Scalia. Most of Trump’s 226 appointments, including 54 to the federal appeals courts, were vetted by the Federalist Society.
Yet, such success is not apparent on the Federal Society website. The organization, in fact, claims that it does not “sponsor or endorse nominees and candidates for public service”. Instead, it merely claims its various divisions and chapters of lawyers, faculty, and students engage in thriving exchanges and promote events relating to discussions on originalism, administrative law and the administrative state, and other topics.
Senator Sheldon Whitehouse (D-RI) believes there are three Federalist Societies. The first, he says, is a law school debating society; the second is the parent organization that facilitates networking events to groom and support new generations of conservative legal minds. And the third, the one we are focused on here, “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.” He goes on to name some of these powerful interests – the Mercer family, the Koch brothers, and the Bradley family.
This third Federalist Society, the one run by Leonard Leo, is the one that Don McGahn, Trump’s White House counsel, spoke of when he joked in 2017 that the president hadn’t “outsourced” the nomination process, as his critics alleged, but rather, he had “insourced” it to McGahn, who said he had been a Federalist Society member since his law school days.
In a period of a deadlocked Congress, the judiciary is – as Powell recognized – the center of power regarding the laws that shape the nation. When Republicans control the nominating process for courts, the Federalist Society is undoubtedly the primary power broker.
