Private: The Federalist Society and Judicial Selection

by Michael Avery and Danielle McLaughlin. Mr. Avery is Professor of Law and Director of Litigation at Suffolk University Law School. Ms. McLaughlin is an associate at Nixon Peabody.

In mid-November the Democrats finally exercised the so-called “nuclear option,” barring filibusters for all votes on judicial appointments in the Senate, other than for Supreme Court Justices. The change in the Senate Rules followed the Republican filibuster of three of President Obama’s nominees for the very conservative D.C. Circuit Court of Appeals and the radical increase in opposition to presidential judicial choices by Republicans since 2009. According to Harry Reid, almost half of the filibusters of presidential judicial nominations in our Nation’s history have been used against President Obama’s selections. The rules change will allow a simple majority of senators present and voting to approve presidential nominees to the federal bench and eliminate the 60-vote supermajority required to overcome a filibuster.

Right-wing ideologues have been successful since the 1980 election of President Reagan in securing judicial appointments for conservatives during Republican presidencies. Ed Meese, the Reagan Attorney General and now elder statesman of the conservative legal movement, said that “no President exercises any power more far reaching, more likely to influence his legacy, than the selection of federal judges.” The Federalist Society, whose founders were mentored by Meese in the Reagan White House and Department of Justice, has always believed that the easiest way to change the law is to change the judges. We document their success in doing so at all levels of the federal judiciary in our book, The Federalist Society: How Conservatives Took the Law Back from Liberals. Federalist Society members are just as active with respect to judicial selection when a Democrat is president as they are when a Republican is in the White House. For example, in 2010, the Judicial Confirmation Network, formed to promote George W. Bush’s judicial nominations, simply changed its name to the Judicial Crisis Network (JCN), once President Obama began nominating judges. The leadership of the group remained in the hands of key Federalist Society members and it lobbied actively against the president’s appointments.

The media and the public tend to focus on the four radically conservative Supreme Court Justices. The Federalist Society, however, has long focused its attention on appointments to the lower federal courts, particularly the Courts of Appeals. Beginning in the 1980’s, the Federalist Society’s long-term strategy was to develop a network that extended from law schools to the White House and the Department of Justice, including judicial chambers. Promising young law graduates with Federalist Society credentials obtained important jobs in the government, including clerkships with key judges, which led ultimately to federal judgeships. The eventual Supreme Court justices were part of a much larger pool of Federalist Society members or friends who were named to the lower federal benches by Republican Presidents.  Like a successful baseball team, conservatives have long known that you need a strong farm system if you want to win the World Series.

There is no question about the loyalty of these judges to the Federalist Society. Justice Thomas came under fire in November for his appearance at the Federalist Society’s Annual National Lawyer’s Convention as the keynote speaker at a $200/plate black tie fundraiser. Rep. Louise Slaughter (Dem. N.Y.) used the Thomas speech to publicize a campaign to bring Supreme Court Justices under the strictures of the Code of Judicial Ethics, which apply to all other federal judges and which would have prohibited his appearance at this fundraising event.   Rep. Slaughter’s plea for Chief Justice Roberts to enforce the rules against Thomas is likely to fall on deaf ears, since Roberts was once a member of the steering committee of the D.C. Federalist Society lawyers’ chapter and himself gave a keynote address at the Society’s 25th anniversary event (still featured on the website).   In 2011, Scalia and Thomas were criticized after they were honored at the Society’s annual black-tie dinner (Alito was also present, but not honored). On that occasion the Court was about to hear the challenge to Obamacare, and critics pointed out that Society member Paul Clement, who would argue the case, would be in attendance at the dinner.  In addition to Clement, representatives from Jones Day (the firm that represented one of the trade associations that challenged the law) and Pfizer (who would be greatly affected by the ensuing decision) were also present.  Looking further back to 2009, Thomas was the keynote speaker at the Society’s Annual Student Symposium, and Alito was the keynote speaker at the Society’s annual black-tie dinner.

Of course, the judges’ loyalty is expressed in more important ways than attending fundraising dinners. In our book, we analyze how these judges and others have responded to the arguments of Federalist Society members to move the law to the right in a variety of substantive areas. This includes aggressive expansion of the Takings Clause to limit regulation of private property; using the preemption doctrine and tort reform to reduce government regulation and limit access to justice; invoking multiple arguments including the “colorblind” constitution to limit remedies for race discrimination; using the incrementalist strategy to chip away at the right of choice with respect to abortion; and promoting “American Exceptionalism” with respect to international law issues. There is much more, and for that we invite you to read the book.

We hope the recent Senate Rules change will become an important step in restoring balance to the federal bench.  We acknowledge that this rule change might eventually come back to haunt Senate Democrats.  Either way, it was past time for the president and the Democrats in the Senate to realize that they have to play hardball with respect to judicial appointments. 

Constitutional Interpretation