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01/06/2019

Washington Post Magazine Article on the Federalist Society
Michael Ramsey

In the Washington Post Magazine, reporter David Montgomery has this long (and relatively balanced) article about the Federalist Society and its influence on the courts in the Trump administration: Conquerors of the Courts -- Forget Trump’s Supreme Court picks. The Federalist Society’s impact on the law goes much deeper.  From the discussion:

But having allies on the highest court of the land is just the top layer of the Federalist Society’s expanding sway. For one thing, there is the judicial nomination process itself. When Trump was campaigning in 2016, he made the shrewd and un­or­tho­dox move of publicizing a list of 11 conservative legal stars that he promised to draw from if he got a chance to pick a Supreme Court justice. Leonard Leo, executive vice president of the Federalist Society, played a key role in suggesting the names, along with Trump’s future White House counsel, Don McGahn (also a society member), and the conservative Heritage Foundation. The list was expanded twice to include Gorsuch, Kavanaugh and others. Leo took a leave from his job at the Federalist Society to advise the White House on the confirmation process for Gorsuch and Kavanaugh — reprising a role he played for the George W. Bush White House in putting Roberts and Alito on the court.

The next most important segment of the judiciary — the federal appeals courts — is also filling up with Federalist Society members: Twenty-five of the 30 appeals court judges Trump has appointed are or were members of the society. “Our opponents of judicial nominees frequently claim the president has outsourced his selection of judges,” McGahn quipped to a Federalist Society gathering in 2017. “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.”

Kavanaugh, Gorsuch, Alito and Thomas are all at the banquet [the Society's annual lawyers convention in November] — a record turnout of Supreme Court justices for the annual affair. There’s also a trio of Trump’s once and future Justice Department leaders: Deputy Attorney General Rod Rosenstein (alumnus of the Federalist Society’s Harvard Law School chapter), recently fired attorney general Jeff Sessions (frequent society speaker) and acting attorney general Matthew Whitaker (recommended by Leonard Leo to be Sessions’s chief of staff). It’s as if the players in the recent melodramas surrounding the Justice Department are minor actors compared with the Federalist Society itself — which provides the enduring climate within which storms on the right come and go.

And from later on:

But more recently another liberal position has emerged, and it shows what the Federalists have achieved. This position might be summed up as: If you can’t beat them, join them — methodologically, at least. A number of liberal scholars have applied themselves to the task of showing how, in fact, originalist approaches can yield progressive results. As this train of thought has flowed out of the academy, liberal originalist logic is, more and more, showing up in legal briefs and even in Supreme Court dissents. Advocates of all stripes know they must be ready with textualist arguments because, thanks in large part to the work of the Federalists, it’s more likely than ever that the judge deciding a case will want to hear that perspective.

“For too long progressives were ceding that constitutional ground to the right and organizations like the Federalist Society,” says Elizabeth Wydra, president of the Constitutional Accountability Center, a progressive think tank and law firm that fashions originalist arguments. “When you actually look at the text and history of the entire Constitution, particularly focusing on the transformative amendments that were enacted in the wake of the Civil War, you really see an arc of progress that pushes our country toward inclusion, equality and greater democracy that tells a very different story from a lot of what the folks on the right, including the Federalist Society, would have you believe about our Constitution.” The CAC has made originalist arguments in favor of same-sex marriage, affirmative action and abortion rights. Its position is that those rights are guaranteed by a textual and historical understanding of the original meaning of the 14th Amendment’s equal protection clause. The CAC also is using an originalist reading of the foreign emoluments clause as it represents members of Congress who claim Trump is unconstitutionally benefiting from foreign payments.

(Thanks to Bob Gaglione for the pointer).