As attention on Congress is focused on the impeachment inquiry, Senate Majority Leader Mitch McConnell (R-Ky.) is quietly ramping up his efforts to install far-right federal judges, many with lifetime appointments.
“The Senate will continue its work in the personnel business and confirm more of the president’s outstanding nominees to the federal judiciary,” McConnell said last week, after the Senate failed to move forward on a defense spending bill.
McConnell is planning to confirm at least 30 more federal judges before the end of the year, Vice reports. The Senate, under McConnell’s leadership, has already confirmed 45 circuit court judges during the Trump administration, quickly closing in on the number of appeals judges confirmed during the eight years of the Obama administration: 55.
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McConnell’s renewed focus on confirming conservative judges comes after his joint fundraising committee received a $256,600 contribution in mid-September from C. Boyden Gray, a George Mason University law professor, founder of Committee of Justice — the “leading conservative voice on judicial appointments,” according to its website, and a board member at the Federalist Society, an influential conservative legal organization that has groomed many of Trump’s judicial nominees.
The Federalist Society and its president, Leonard Leo, provide Trump with shortlists of judges for his appointments to the Supreme Court and the lower federal courts. The Federalist Society does not disclose complete details of its donors, but in 2017 it received $5.5 million from Donors Trust, a donor-advised fund sponsor financed primarily by the Koch network, and it lists Google, Facebook, Chevron, Walmart, Microsoft, Pfizer, and other major American corporations as donors in annual reports.
Gray, an heir to the R.J. Reynolds Tobacco fortune and former ambassador to the European Union, has donated millions to Republicans over the years, but his September contribution to McConnell Victory Committee is the largest political donation he has ever given, according to Federal Election Commission records reviewed by Sludge. McConnell Victory Committee is a partnership between McConnell’s leadership PAC, re-election campaign committee, and the National Republican Senatorial Committee.
McConnell’s office did not respond to a request for comment for this article.
The Committee for Justice, which Gray co-founded in 2002, has been defending the Trump nominees that McConnell is looking to get confirmed. Through letters to senators, articles posted on its website, and statements to the press, Committee for Justice has been pushing back against criticisms from the American Bar Association (ABA) and groups on the left that argue that many of the nominees are unqualified and ideologically extreme.
On Nov. 4, Committee for Justice defended Lawrence VanDyke, a Trump nominee to the 9th District Court of Appeals, after the ABA said in a letter that he was “not qualified.” The ABA noted that several individuals it interviewed said that VanDyke was “arrogant, lazy, an ideologue, and lacking in knowledge of the day-to-day practice including procedural rules.” The ABA also said that several interviewees raised concerns about whether VanDyke would be fair to LGBTQ individuals.
Committee for Justice’s Ashley Baker called the ABA assessment “reprehensible” and characterized VanDyke as “a brilliant and accomplished jurist [who] deserves swift confirmation.” VanDyke’s nomination is awaiting a vote from the Senate Judiciary Committee before the full Senate can consider it.
On Thursday, the Senate voted to confirm Steven Menashi to the Second Circuit Court by a vote of 51 to 41. Menashi has been a member of the Federalist Society since 2008 and is a member of its Founders Club. In 2010, Menashi wrote a paper defending ethnonationalism, and he is a member of an immigration policy working group led by white supremacist Trump adviser Stephen Miller. Menashi also helped the Education Department roll back Title IX civil rights protections for students who report instances of sexual harassment or violence.
From 2009-10, Menashi was a Olin-Searle fellow at Georgetown University, according to his Judiciary Committee questionnaire. The Olin-Searle Fellowship is funded by the Federalist Society and gives “top young legal thinkers” time to develop their scholarship towards a goal of entering the legal academy.
From 2016-17, Menashi was a professor at the George Mason University (GMU) law school, which was renamed after the late Supreme Court Justice Antonin Scalia in 2016 along with a $20 million donation from a “dark money” nonprofit, BH Fund, that was administered by the Federalist Society, and $10 million from the Charles Koch Foundation. The Scalia Law School contains the C. Boyden Gray Center for the Study of the Administrative State, which was named after Gray after he made a $3 million donation to the center. Menashi has appeared, alongside Gray, on panels hosted by the center.
In an email obtained by GMU alumna Allison Pienta, GMU law school Dean Henry Butler told Gray that his donation would fund a new professorship that would help him lure Trump appointee Neomi Rao to return to Scalia Law “after she dismantles the administrative state.” Rao was the founder and director of Gray’s center. She left George Mason to become Trump’s “regulatory czar,” after which the president nominated her to take Supreme Court Justice Brett Kavanaugh’s seat on the powerful D.C. Circuit Court of Appeals. The Senate confirmed her nomination.
Committee for Justice wrote in defense of another Trump nominee pending Senate confirmation. Sarah Pitlyk, a Federalist Society member who clerked for Brett Kavanaugh, now a Supreme Court justice, from 2010-11, has defended extreme abortion restrictions. She defended Iowa’s six-week abortion ban and co-wrote in an amicus brief in a case involving an Indiana law that “the origins of abortion are racist and eugenic.”
The ABA has deemed Pitlyk “not qualified,” noting that she “has never tried a case as lead or co-counsel, whether civil or criminal.” Committee for Justice pushed back, writing on its website that “Ms. Pitlyk’s legal experience is wide-ranging and significant, touching every stage of the litigation process.”
In 2005, Gray and Committee for Justice defended Kavanaugh and other judges nominated by President Bush against criticisms from Democrats that they were unqualified and extreme in their views.
“What Is the So-Called High Crime?”
In addition to his work advancing conservative judges, Gray may also have McConnell’s ear on the impeachment of President Trump, something he doesn’t appear to believe is appropriate.
On Wednesday, Gray argued on on PBS NewsHour that there was no quid pro quo in Trump’s interactions with Ukrainian President Volodymyr Zelensky. “The aid went through and no request was made for an investigation,” Gray said. “So what is the transaction that is under investigation? What is the so-called high crime?”
Walter Dellinger, acting solicitor general under President Clinton, who was also on the NewsHour panel, responded to Gray: “The aid went because they were caught, the whistle was blown, Congress was going to investigate, and they hastened to release the aid.”
If the House of Representatives passes articles of impeachment against President Trump, the Senate will be obligated to hold a trial on the House’s charges. If that happens, McConnell, who has already said he doesn’t “think there’s any question” that the Senate will acquit the president, will be the main figure in structuring the proceedings and whipping his caucus against the impeachment charges.