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The right-wing legal network spawned by the Federalist Society has finally gone full Trumpian. It has morphed from a group of apparently principled conservatives debating high-minded theories of legal interpretation, into a secretly-funded cabal spouting conspiracy theories such as the myth of widespread voter fraud. We’ve certainly seen hints that this was the case and also signals that it was coming. But we have now approached peak-hackery, and that hackery is now being directed at manipulating elections. That part really is new, and it is a dangerous development that threatens the rule of law.
While the Federalist Society continues to claim officially that it plays no role whatsoever in politics, policy, or judicial nominations, and the group itself scrupulously avoids taking stances on issues like voter fraud, Leonard Leo – who until recently ran operations at the Federalist Society – has developed a network of political groups, none of which disclose their donors, funded at about a quarter of a billion dollars. So far, that effort has been mostly directed at seating deeply conservative judges on the federal bench for decades to come. But there is a new initiative afoot: an effort to engage in political dirty tricks to manipulate democracy itself.
There’s long been a disconnect between how the Federalist Society holds itself out as a benign debate club and the reality of how it and its informally allied organizations operate in the current political moment. Very little of this is even a secret anymore. The society itself was created in the 1980s to advance conservative theories of constitutional and statutory interpretation. These theories, known as originalism and textualism, were championed by the late Justice Antonin Scalia and others. As Amanda Hollis-Brusky has shown, it became a large, powerful network of conservative and libertarian lawyers, judges, law professors, and law students who meet at conferences, debate the issues of the day and make connections which lead to clerkships, judgeships, legal work, and more. Those conferences can tackle meaty issues from a conservative perspective, and often bring in the occasional liberal (including one of us) for erudite debate. Conservative Supreme Court Justices including Brett Kavanaugh and Neil Gorsuch have addressed the group, and many conservative judges are members.
All of that activity continues today. There’s nothing nefarious about like-minded people coming together to debate the issues of the day from a particular political perspective and to network with others of a similar mindset. (That’s the model of the American Constitution Society too, which engages in this activity from a progressive perspective and where we have both spoken.) Nor is there any question that groups of like-minded lawyers can and should gather together to mentor young attorneys and steer them into networks and eventually careers that will fulfill them. There’s been a recent controversy over whether it is inappropriate for federal judges to formally be a part of the Federalist Society, or the ACS, but even if these judges gave up their formal ties, the fact remains that the network and pipeline of clerkships and judgeships would remain intact. Again, none of this is new or particularly scandalous; Until recently, the biggest difference between the Federalist Society and ACS was less what they were doing and more that the former was simply better at it.
As the Federalist Society has retained its formal role as an elite debating and networking club, however, things have taken a darker turn on the network’s periphery. As an eye-opening new report released Wednesday by Senators Chuck Schumer, Debbie Stabenow, and Sheldon Whitehouse contends, Leo, who is still co-chairman of the Federalist Society, is now spearheading an all-out effort to capture the federal judiciary and to seat judges who are likely to rule in favor of those secret monied-interests. That is more of an investment plan than a means of preserving an independent judiciary.
The Senate Democrats’ report details how an interlocked group of anonymous donors have been directing the judicial nominations process through media and lobbying campaigns. Many of these campaigns, including the Judicial Crisis Network, have ties to Leo, who has twice taken a formal “leave” from the Federalist Society to advise President Trump on his Supreme Court nominations, then hopped back into his old post, while boasting that his organization was in firm control of the nominations process.
The senators’ report also notes that the Judicial Crisis Network “spent $7 million opposing President Obama’s Supreme Court nominee Merrick Garland. It then spent $10 million more to support the confirmation of President Trump’s Supreme Court nominee Neil Gorsuch (targeting ‘vulnerable Democrat Senators’), and pledged another $10 million in advertising campaigns to support Brett Kavanaugh’s nomination.” Nobody knows where the money came from. We know only that some people, or maybe even just someone, spent millions to buy some Supreme Court seats. And as Politico reported on Wednesday, the Treasury Department and IRS have just finalized regulations that will excuse some of these politically active tax-exempt groups from having to disclose their high-dollar donors to the IRS, let alone the public.
As the three Democratic senators were quick to note on a phone call Wednesday morning, the effort to seat 200 Trump judges has gone from a Leonard Leo juggernaut to a Mitch McConnell obsession. Even in the midst of the pandemic, McConnell has been pushing through nominees for federal appellate seats, including the nomination of a protégé, 37-year-old Justin Walker, for a seat that has not even become vacant yet, on the United States Court of Appeals for the D.C. Circuit.
The Senators’ report tells us much of what we knew or suspected. But the big news today is where that conservative network is heading: Their activities now go well beyond dark money political hardball into conspiracy mongering and election-meddling efforts around the November presidential elections that endanger our democracy.
One early sign of the turn away from normal politics and toward dirty tricks occurred when conservative legal activist Ed Whelan advanced an unhinged conspiracy theory that used Zillow pages, Facebook, and yearbook photos to claim that it was not Kavanaugh who committed the attack on Dr. Christine Blasey Ford, but rather his classmate, whom Whelan named outright. Whelan later apologized and after doing a short period of social media penance is now back at work pushing the Federalist Society agenda. The unsupported claim of a different attacker was taken up by commentators and Republican senators who claimed they believed Dr. Ford about being attacked but cast doubt on whether she was correct about the identity of the attacker. The baseless theory injected just enough confusion into the allegations, Kavanaugh was confirmed, and Whelan has paid no price for it.
Now things have taken a turn from court-packing to a side-grift in vote suppression. According to new reporting from The Guardian and Open Secrets, Leo, Carrie Severino of the Judicial Crisis Network, and their dark-money backers are promoting the Orwellian-named “Honest Elections Project” to pressure elections administrators to limit access to the ballot and to undermine trust in elections. The messaging echoes Trump’s baseless claims that various states’ efforts to let people vote by mail are fraudulent – and turns these lies into policy. “The project announced it was spending $250,000 in advertisements in April, warning against voting by mail and accusing Democrats of cheating,” the Guardian explained. “It facilitated letters to election officials in Colorado, Florida and Michigan, using misleading data to accuse jurisdictions of having bloated voter rolls and threatening legal action. Calling voter suppression a ‘myth’, it has also been extremely active in the courts, filing briefs in favor of voting restrictions in Nevada, Virginia, Texas, Wisconsin and Minnesota, among other places, at times represented by lawyers from the same firm that represents Trump.”
Senator Whitehouse told us, in an email, that “while Republican-appointed justices on the Supreme Court deliver decisions greenlighting GOP voter suppression, Leo and his network mobilize to tip elections by making it harder for people to vote. We’ve seen this mischief in the records of judges Leo and his dark money groups have packed onto the federal bench; now he’s mounting a direct dark-money assault on the American voter.”
It almost goes without saying at this juncture but we will say it again: The idea that voter fraud in the United States is widespread has been debunked many times. There’s so little evidence to support the claims that the true aim of such chatter must be to use lies to make it harder for people likely to vote for Democrats to register and vote. The reality is that some Republicans have turned to suppressing the vote – by voter roll purges, voter disenfranchisement, voter intimidation and the closing of polling places – when they fear they cannot win an election fairly. It is also not in dispute that vote by mail is not rife with fraud, many states already allow for no excuse vote by mail, and that attempts to stop the franchise by discouraging mail-in voting is simply the newest flavor of vote suppression for the pandemic era. That’s why the President is dementedly tweeting about it, even as he is being debunked in real time. And that’s why Leonard Leo and his confederates are directing untraceable dark money away from the judge-picking business and into the apparently booming vote-suppression business.
The attempt to stack the courts with business-friendly conservatives is an act of moneyed politics by another name. But until recently one might have believed that Leonard Leo and the Federalist Society could at least nominally support the idea of the franchise itself: the notion that votes should be counted and that voters should have the last word in a constitutional democracy. Apparently not.
That the conservative network is suddenly engaged in spouting unsubstantiated claims of voter fraud to support suppressive voting laws and cast doubt on the legitimacy of elections in which Democrats can win is an activity fundamentally at odds with the spirit of honest debate that is supposed to animate the Federalist Society. It is also the kind of fundamental dishonesty in the service of political aims that is the polar opposite of the rule of law values Justice Scalia and others had professed as being at the beating heart of the conservative legal movement’s mission. It takes an immense amount of cynicism to move from debating conservative jurisprudential theories to taking secret money to buy and sell judicial nominations. But the cynicism required to use that once-vaunted perch from which to shut down free elections is still breathtaking, even if it should no longer surprise us at all.
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