"I hope you are proud of what we've done."

Conquerors of the Courts
Forget Trump’s Supreme Court picks. The Federalist Society’s impact on the law goes much deeper.
https://www.washingtonpost.com/news/magazine/wp/2019/01/02/feature/conquerors-of-the-courts/?utm_term=.7d93e02c056a&wpisrc=nl_rainbow&wpmm=1

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There is much for this crowd to celebrate. The conservative and libertarian society for law and public policy studies has reached an unprecedented peak of power and influence. Brett Kavanaugh, whose membership in the society dates to his Yale Law School days, has just been elevated to the Supreme Court; he is the second of President Trump’s appointees, following Neil Gorsuch, another justice closely associated with the society. They join Justice Clarence Thomas (who said last spring he’s “been a part of the Federalist Society now since meeting with them … in the 1980s”), Chief Justice John Roberts (listed as a member in 1997-98) and Justice Samuel Alito (a periodic speaker at society events). The newly solidified conservative majority on the court will inevitably decide more cases in line with the society’s ideals — which include checking federal power, protecting individual liberty and interpreting the Constitution according to its original meaning. In practice, this could mean fewer regulations of the environment and health care, more businesses allowed to refuse service to customers on religious grounds, and denial of protections claimed by newly vocal classes of minorities, such as transgender people.

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 — 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.

To close the gala, McGahn and Senate Majority Leader Mitch McConnell settle in armchairs below the giant Madison heads for an onstage tete-a-tete, during which they all but spike the football over the current pace of appointing conservatives to all levels of the federal judiciary — the “judges project,” as McConnell calls it. At the appeals court level, in particular, Trump has made more appointments than all other presidents at the same point in their presidencies, according to research by Russell Wheeler, a visiting fellow in governance studies at the Brookings Institution. (At the district court level, however, Trump’s pace lags behind that of George W. Bush and Bill Clinton.) “My goal … is to do everything we can for as long as we can to transform the federal judiciary, because everything else we do is transitory,” McConnell says. “The closest thing we will ever have an opportunity to do to have the longest impact on the country is confirming these great men and women and transforming the judiciary for as long into the future as we can.” McConnell notes that the judges list played a big part in getting Trump elected. The majority leader looks out over the gathering almost mistily as he concludes: “I hope you are proud of what we’ve done.”

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