Every president wants a lasting legacy, and in the realm of government, nothing is more effective than installing lifetime appointees to the federal bench, says Michael Avery, professor emeritus at Suffolk Law School and co-author of The Federalist Society: How Conservatives Took the Law Back from Liberals.
Ronald Reagan’s attorney general, Edwin Meese, was the first to articulate the importance of this strategy, Avery told Truthout. And in the nearly four decades since Meese began pushing this tactic, conservative organizations like the Federalist Society, aided by deep-pocketed conservative and libertarian funders, have made filling the federal judiciary a top priority. There’s a lot at stake: 870 seats on tribunals including the Supreme Court, District Courts, Courts of Appeal and specialty bodies such as the Court of International Trade.
Not surprisingly, the right has found a willing and eager ally in Donald J. Trump. He’s not only seated two Supreme Court justices, but in the last two-and-a-half years, 43 Trump appointees — nearly 25 percent of the 179 total — have been confirmed to sit on Appeals Courts; at least four more are currently in the approval pipeline.
“The Supreme Court only hears about 80 cases a year,” Daniel Goldberg, legal director of the progressive Alliance for Justice, told Truthout. “The vast majority of litigants, about 50,000 a year, have their cases decided by Courts of Appeal. This is the court that has the biggest impact on what we live with.”
Take the “gag rule,” the prohibition on using federal Title X funds to discuss pregnancy termination or refer people to abortion care. On July 11, the 9th Circuit Court ruled that the rule could go into effect; and while a second hearing on the issue was held in late September, the impact of another affirmation will have serious consequences for those of reproductive age.
Another case, United States v. Flute, allowed the prosecution of a woman for manslaughter because she used drugs during her pregnancy, something prosecutors blamed for the death of her newborn.
Goldberg notes that according to Article Three of the Constitution, after judicial appointees have been confirmed by the Senate, federal judges are given lifetime appointments and can only be removed by impeachment. “Throughout history,” Goldberg reports, “there have only been a handful of impeachments for gross misconduct. Once confirmed, you can assume these people will be on the bench for a long, long time.”
Still, he adds, “what is happening now is unusual.” Since the Republicans refused to consider most of Barack Obama’s judicial nominees, Trump entered the Oval Office with many open seats for him to fill, including 112 on the Court of Appeals.
But it’s even more insidious.
Goldberg says that Trump’s candidates have benefited from both rules changes and from being fast-tracked for confirmation. “There used to be a rule that a judge would not be confirmed without the blessing of both senators from the state where they’ll sit on the bench. It was called the Blue Slip Rule,” he explains. “Mitch McConnell got rid of this requirement so that one or even both senators’ opposition to a particular person no longer matters. Furthermore, he’s reduced the amount of time for confirmation debate from 30 hours to two hours.”
What’s more, a judge can be confirmed with 50 votes, down from the 60 needed during previous administrations.
Baher Azmy, legal director at the 53-year-old Center for Constitutional Rights — a group that sees its mission as “fusing litigation, advocacy and narrative shifting to dismantle systems of oppression” — sees these shifts, and the successful seating of so many conservative jurists, as a bid to reverse the New Deal consensus.
“For the past 40 years, the conservative legal movement has had an ambition to use the courts to undo popular social movements, dismantle the civil rights movement, and end Constitutional protections for poor and minority individuals in the criminal justice system,” Azmy said. “It’s also a way for them to restore the social order associated with patriarchy.”
Conservatives Pack the Courts
By all accounts, the 37-year-old Federalist Society, fueled by money from wealthy conservatives such as Charles Koch and his late brother, David Koch, can take credit for much of this success. Five Supreme Court justices — Samuel Alito, Neil Gorsuch, Brett Kavanaugh, Clarence Thomas and John Roberts — are, or have been, Federalist Society members. Equally significant, as of July 2018, 17 of 18 people confirmed for judgeships on federal Appeals Courts have been Federalist Society members.
Although the group did not respond to repeated requests for an interview, its website lists 45 staff people; watchdogs such as People for the American Way and the Alliance for Justice further report that the group has an annual budget of $26 million.
The Federalist Society was formed in 1982 by three University of Chicago and Yale University law students and their mentors — Robert Bork, who served on the U.S. Court of Appeals for the D.C. Circuit, and Antonin Scalia, the late Supreme Court Justice. Since then, it has consistently positioned itself as a defiant underdog and foe of liberalism, a struggling David forced to do battle with what it portrays as an authoritarian left-wing Goliath that devalues individualism. “Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society,” the Federalist Society website claims.
Additionally, Federalist Society members champion “originalism,” a legal theory that argues that the Constitution should be interpreted as its framers intended, with no deviation or acknowledgement of modernity or societal shifts. This notion became popularized in the early 1980s by attorney Paul Brest, who argued that the intent of the Constitution’s authors should be the guidepost for all decision making. Core values include opposition to “government encroachment on individual liberty” and support for unbridled free trade. Religious freedom is also routinely invoked in opposition to abortion, marriage equality and equal protections for the trans community.
One man, Leonard Leo, is the Federalist Society’s mastermind, an image he’s honed since arriving at the Society in 1991.
As Federalist Society Vice President, Leo is widely seen as a matchmaker, linking conservative jurists with the Trump administration. He has done everything from vetting people to serve under Trump to polishing the Federalist Society’s public profile. All told, he serves as liaison between the Federalist Society, funders like the Koch brothers and their philanthropy network, and think tanks including George Mason University’s Law and Economics Center.
Leo is known for his pragmatism. As the New Yorker Magazine reported in 2017, Leo knows that even if the Right wins elections, “unless you can change elites and the institutions that are by-and-large controlled by the elites, like the courts, there are limits to what you can do.”
That said, Leo and his cohort are leaving nothing to chance and are making sure that newly elected congresspeople, newly confirmed federal judges, newly elected attorneys general, and newly enrolled law students are wined, dined and “educated” in conservative economic principles and theories.
A report from the five-year-old UnKoch My Campus campaign, called UnKoch Our Courts, reveals that this is not a new strategy. In fact, since its founding in 1974, the Law and Economics Center at George Mason has provided more than 200 one-day and weekend “training sessions” for approximately 5,000 judges and 700 Attorneys General and their senior staffs. According to the Law and Economics Center website, these “educational” outings provide a chance for attendees to rub elbows with prominent right-wing legal theorists and business people as they discuss economics and public policy. This fall’s seminars, for example, will include panels on artificial intelligence, marijuana legalization and an overview of US labor markets and labor law. The Law and Economics Center will also offer a “Short Course on Economics for Judges.”
The urgency of this right-wing push is driven in part by the fact that both the Federalist Society and the Law and Economics Center recognize that Trump will not be in office forever. The Law and Economics Center’s most recent funding prospectus makes this explicit, calling this “a once-in-a-lifetime opportunity to shape the contours of federal law for decades to come.”
It’s an unprecedented opening that they are exploiting to the fullest.
According to a funding prospectus obtained by UnKoch My Campus, in fiscal 2018 the Law and Economics Center spent $1,730,000 on trainings, using the center as a hub. This sum was raised by grants from the Kochs, The Coors Foundation, Donors Trust, The Lilly Endowment, The Searle Foundation, The Sarah Scaife Foundation and 13 corporations including AT&T, Facebook, Google, Johnson & Johnson, Merck, State Farm and VISA; 67 named individuals also provided funding for the program. Although most events were held on the George Mason University campus, occasional forays to hotels and spas in other regions of the country have been organized.
The impact, according to UnKoch Our Courts, has been tangible: “A rise in corporate-favoring judicial decisions that subsequently strip the public of our reproductive freedoms, voting rights, LGBTQ rights, access to healthcare, and regulations that protect our environment.”
The threat to reproductive freedom provides a concrete example. Robin Marty, co-author of The End of Roe V. Wade, told Truthout that although three members of the anti-abortion Red Rose Rescuers have repeatedly stormed into the Washington Surgi-Clinic in Washington, D.C., in an attempt to dissuade patients from having abortions, a judge has, on four separate occasions, dismissed unlawful entry and trespassing charges.
Even more egregious, Marty adds, the Department of Justice has invoked the Freedom of Access to Clinic Entrances (FACE) Act, the main legal recourse to protect clinics from trespassers and patients and staff from harassment, just once since Trump took office. Meanwhile, invasive anti-abortion “rescues” have taken place in numerous states.
“The anti-abortion movement is emboldened,” Marty concludes. “They have power and allies in every avenue of politics.”
Promoting a Pro-Business Environment
But while eroding abortion access is certainly high on the right’s agenda, law professor and writer Michael Avery says that fighting abortion is not actually the main priority for current leaders of the right. “The value that is prominent for them is private property,” he told Truthout. “They want freedom from regulation, from the kinds of rules that come from D.C., things like labor laws and environmental protections. They believe it is their God-given right to do whatever they want. This idea is really the driving force behind the Federalist Society. They oppose all government regulation. This explains why the libertarians and conservatives get along so well.”
Azmy agrees. “The right is solidifying a project that they started a long time ago. They either argue that their ideas are what the framers of the Constitution wanted or argue that their opposition to change rests on claims to religious liberty.”
Is there any way to reverse this? Truthout asks. “I think the best response is to resist panic and, in the short-term win elections and help people understand how much the courts matter,” Azmy says. But while he believes that winning the presidency and Senate in 2020 is imperative, when it comes to the long term, “politicians and judges need to recognize that the courts are there to serve the people. This, of course, requires movement building and generating support for the organizations, networks and scholars who champion a progressive understanding of the Constitution.”