Meet the powerful group behind Trump’s judicial nominations

Meet the powerful group behind Trump’s judicial nominations
© Getty Images

The Trump administration has been filling judicial vacancies in rapid succession, with the majority of nominees having one thing in common: ties to the Federalist Society.

Groups on the left have accused the White House of outsourcing the nomination process to the Washington, D.C.-based group as it seeks to stack the courts with conservative judges.

ADVERTISEMENT
Of the 13 judicial nominees confirmed since President Trump took office, 10 are either current or former Federalist Society members or regular speakers at its events. Eight of the 10 appellate Trump nominees pending before the Senate have ties to the group.

Leonard Leo, executive vice president of the Federalist Society, is a White House adviser on judicial nominations. He reportedly played a key role in Trump’s nomination of Neil Gorsuch to replace the late Antonin Scalia on the Supreme Court.

Leo declined numerous requests to be interviewed for this story, as did other Federalist Society staff members.

Steven Calabresi, who co-founded the society in 1980 and serves as chairman of its 12-member board of directors, said Leo offers recommendations to the White House on his own time and in his private capacity as an individual citizen — not as the society’s executive vice president.

At the same time, he acknowledged the nonprofit organization, which has about 60,000 members nationwide, has become a clearinghouse of sorts for candidates.

“I would say I think the Federalist Society has come to play over the last 30 years for Republican presidents something of the role the American Bar Association has traditionally played for Democratic presidents,” Calabresi said in an interview with The Hill.

“The last two Republican presidents have disregarded ABA ratings, and I think they are relying on the Federalist Society to come up with qualified nominees.”

Calabresi formed the group to gather likeminded conservatives at a time when he said law schools catered to liberals. Members are known for holding originalist views of the Constitution.

Four of the nine justices on the Supreme Court have strong ties to the group. Gorsuch and Justice Clarence Thomas regularly speak at events, and Justice Samuel Alito said during his confirmation hearings that he was a proud member.

Though Chief Justice John Roberts said he did not recall being a member of the group during his confirmation process, The Washington Post reported in 2001 that he was listed in the group’s 1997–1998 directory as a member of its steering committee.

The Federalist Society, which does not lobby for legislation, take policy positions or sponsor or endorse nominees and candidates for public service, is funded through grants, membership and donations.

Top donors include the Charles G. Koch Charitable Foundation, David Koch and Koch Industries Inc., which each contributed $100,000 last year. The U.S. Chamber of Commerce contributed $500,000, according to the society’s 2016 annual report. Revenue and support totaled $26.75 million in 2016.

The society says its main mission is to create a forum for legal experts of opposing views to interact with members of the legal profession, the judiciary, law students and academics, including through events such as the National Lawyer’s Convention that begins Thursday in Washington.

The three-day convention will include keynote speeches from Gorsuch, Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsTrump administration creating family reunification task force: report Mexican airline pledges to reunite immigrant families separated by Trump policy for free Jennifer Lopez sounds off on Trump immigration policy MORE and White House Counsel Donald McGahn.

The Federalist Society’s rise has come as the American Bar Association has seen its standing fall.

McGahn notified the ABA in a letter in March that the White House was ending the long-standing practice of inviting the independent ABA Standing Committee on the Federal Judiciary to review the professional qualifications of prospective nominees to the lower federal courts before nominations are made.

Matt Cimento, an ABA spokesman, said the association doesn’t comment on the Federalist Society.

“You can look at their record and their positions and make your own determination,” he said when told of Calabresi’s remark that the society is now the ABA for Republican administrations.

The ABA is still giving ratings, but not until after the nominations are announced.

So far, it has given four Trump nominees the rare “not qualified” rating.

Those given the rating include Brett Talley, who has just three years of experience practicing law and has never tried a case before.

The Senate Judiciary Committee approved Talley’s nomination to a federal district judgeship in Alabama, and he is expected to be confirmed by a majority vote in the Senate, which is controlled by Republicans.

On Monday, The New York Times reported that Talley had failed to disclose his marriage to Ann Donaldson, who is McGahn’s chief of staff.

Lena Zwarensteyn, director of strategic engagement at the liberal American Constitution Society, said the ratings show the administration is cutting corners in nominating conservative judges with little experience.

“Membership [in the group] might not be determinative, but the Federalist Society has their eye on who they want on the bench and the administration is giving deference to them,” she said.

The Federalist Society has long been used by GOP presidents as a resource to nominate judges.

Federalist Society members have occupied key positions in the White House and the Department of Justice since the group’s founding. Former GOP Presidents Reagan, George H.W. Bush and George W. Bush all relied on Federalist Society members inside or outside their administrations in making judicial nominations.

Reagan Attorney General Edwin Meese, an early supporter of the group, now sits on the society’s board of directors. C. Boyden Gray, who served as George H.W. Bush’s White House counsel, is also on the board, as is Michael Mukasey, who served as U.S.  attorney general under George W. Bush.

“I expect someone from the Trump administration will be added to the board of directors as well,” Calabresi said. 

Liberal groups say Trump’s team is relying too much on the Federalist Society.

“The public and Americans want a judiciary of men, women, people of color, individuals of all political beliefs and professional experiences,” said Nan Aron, president of the liberal Alliance for Justice.

She said membership in any one group shouldn’t be a touchstone for nominees — and that when it is, you can get a roster of judges that doesn’t look like America.

The Associated Press reported this week that Trump is nominating white men to the federal courts at a rate not seen in decades. The report found that 91 percent of his nominees are white and 81 percent are men.

“It’s harmful for a judiciary to be comprised solely of individuals from one membership group, particularly one that supports the confirmation of individuals whose main criteria is a hostility to women’s rights and LGBTQ protections,” Aron said.

Michael Avery, a professor at the Suffolk University Law School who wrote “The Federalist Society: How Conservatives Took the Law Back from Liberals,” said he disagrees with the society’s politics, but admires how successful the organization has been in reshaping the federal judiciary.

“They have culture hegemony in legal quarters that matter when it comes to appointing judges and they achieve that by having worked to build influence, build membership,” he said.