William Barr in the Rose Garden at the White House. Photo courtesy of Brendan Smialowski / AFP via Getty Images.
Last week, the Federalist Society held its annual lawyers’ convention in D.C. For three days, conservative and libertarian attorneys flitted between panels, hearing debates about hot-button legal topics. But the main events were two black-tie dinners: one on Thursday night featuring Senate Majority Leader Mitch McConnell and Justice Brett Kavanaugh, and another on Friday night featuring Attorney General William Barr. Both evenings transformed from intellectual salons into campaign rallies for the Republican Party and Donald Trump. And both further demonstrated a fact that any reasonable observer should already know: The Federalist Society is a fundamentally partisan organization that uses academic debate to conceal its crucial role in the GOP’s judicial nomination machine — and, by extension, Trump’s presidency.
To understand the Federalist Society’s power, it is important to recognize that the organization has two faces. The public-facing Federalist Society presents itself as a debate club that takes no position on law or policy and welcomes a broad range of opinions. Law school chapters of the organization host discussions of hot-button legal disputes, often inviting liberals, libertarians, and conservatives to duke it out. Similarly, the group holds workshops where law students and faculty can help each other improve their scholarship.
There is nothing sinister about these academic exercises, which is why Federalist Society members hold them up as examples of the organization’s activities whenever it is condemned as partisan. How, after all, can a debate club that routinely invites progressives to speak at its events be politicized? Isn’t that the height of transparency? Sure, anyone who attends a Federalist Society debate will likely get a blast of conservative legal theory. But they’ll also hear from the other side, which is usually amply represented by a genuine expert.
Then there is the other face of the Federalist Society. This side of the organization has a direct line to the Trump administration, including the president himself. It is awash in dark money. It has a clear agenda, opposing abortion access, gun control, LGBTQ equality, environmental regulations, labor rights — the whole panoply of progressive goals. And lately, it has gone all out for Trump, providing an immeasurable boon to his presidency by vetting judicial nominees who will toe the GOP party line.
This is the Federalist Society that was on display during McConnell and Barr’s speeches last week. We saw a rare public glimpse of it during McConnell’s address, when he bragged that “we have flipped the 2nd Circuit, the 3rd Circuit, and we will flip the 11th Circuit.” The crowd applauded as McConnell described the courts in raw partisan terms: He “flipped” these courts by confirming more Republican appointees, creating a majority of judges nominated by GOP presidents. And why wouldn’t this throng of Federalist Society foot soldiers respond with gratitude? Chief Justice John Roberts may say there are no “Obama judges or Trump judges.” But this crowd knew the truth: The more “Trump judges” McConnell pushes onto the bench, the more likely it is that the courts will rule for the GOP.
McConnell’s speech, however, was downright discreet when compared with Barr’s barnburner the next night. The attorney general’s utterly deranged speech presented a theory of executive authority tailor-made for Trump, describing the president as a monarch who has been unlawfully restrained by courts and Congress. Barr bashed Democrats in overtly partisan terms, accusing them of launching “a war to cripple” Trump’s presidency “by any means necessary.” He charged Democrats with an “unprecedented abuse” of the Senate’s ability to block judges, having apparently slept through the Merrick Garland blockade. And he dismissed Congress’ oversight of the executive as “constant harassment,” concluding that “it is the left that is engaged in the systematic shredding of norms and the undermining of the rule of law.”
Barr’s speech received continual applause and standing ovations throughout his address. The leaders of the Federalist Society had gathered in that room to celebrate their success under the current administration. And Barr delivered the rallying cry they craved: He defended Trump’s lawlessness by reframing the president as a victim of Democratic excess, using constitutional tools to make the executive branch great again.
This kind of grievance-mongering is deeply rooted in the Federalist Society’s ethos. The group launched in 1982 to combat the perceived liberal bias in law schools at the time, and many members still view themselves as a disadvantaged minority. Federalist Society leaders have demanded greater “intellectual diversity” on law school faculties — that is, affirmative action for conservative scholars. But the group is far from an underdog today; it is, rather, a dominating force in the federal judiciary. And that is largely because of Leonard Leo, co-chairman and executive vice president of the Federalist Society.
Leo has been working at the head of the organization for more than a quarter-century, and has gained some fame as a judge whisperer: He helped select four members of the Supreme Court, and provides Trump with Federalist Society members to nominate to federal district and appeals courts. Today, one-fourth of judges on the federal courts of appeals were nominated by Trump, and the vast majority of them are members of the Federalist Society. They paid their dues and rose through the ranks, frequently proving their ideological purity within the organization’s sprawling network.
Take this characteristic example: One Trump appointee, Judge Neomi Rao, previously taught at the Antonin Scalia Law School at George Mason University. The school received tens of millions of dollars from the Koch brothers, and from Leo, who funneled the money from an anonymous donor. Internal documents later revealed that Leo had a direct line to the law school’s dean and influenced both the student admissions and faculty hiring processes. This closed circuit allowed Leo to build the next generation of Federalist Society loyalists — and eventual judicial nominees.
Leo certainly has a genius for networking, but more importantly, he is a master of dark money. An extraordinary Washington Post investigation revealed that Leo sits at the center of a donor labyrinth that pumps cash into the fight for conservative judges. He is the president of three nonprofits, with no employees or websites, that exist solely to legally launder money. One of these groups, the BH Fund, took in $24,250,000 from one anonymous donor. The BH Fund passed along millions to other groups that Leo heads. These groups gave that money to advocacy organizations, which used it to campaign for Federalist Society judges. The organizations spent millions on rallies, Facebook ads, TV commercials, or Fox News pundits praising Trump’s judicial nominees and bashing Democrats who opposed them. Because the groups are tax-exempt nonprofits, we know very little about the source of their funds — except that they passed through channels controlled by Leo.
Whenever Leo advises Trump or sets up a dark money front group, he takes a leave of absence from the Federalist Society. Thus, anyone who suggests that the Federalist Society itself participates in the judicial nomination process will receive a snitty letter insisting that Leo is acting as a free agent. This fiction is beyond comical. Through his work with the Federalist Society, Leo screens potential nominees and woos likely donors. Then, as a putative freelancer, he suggests nominees to Trump and uses donor cash to push them through the Senate. Leo could not be a Washington power broker if he were not simultaneously the liege of the Federalist Society.
Some members of the Federalist Society certainly dislike Trump, and the organization makes room for their critiques during conferences and debates. But by maintaining their support for the Federalist Society, these dissenters have made a devil’s bargain. Trump maintains support among congressional Republicans and a large chunk of the base by relentlessly appointing judges. Many GOP voters turned out for Trump in 2016 because of the Supreme Court; they trusted him to nominate hard-line conservatives after he released a shortlist of potential justices — filled, of course, with Federalist Society stalwarts.
Trump and McConnell have a rocky relationship, but the Senate majority leader has worked hand in hand with the president on judges, and Republican senators have voted for judicial nominees in near-lockstep. If the Federalist Society refused to play ball — if its rank and file revolted against Leo’s embrace of the president and urged GOP senators to pause the confirmation machine — Trump’s support would collapse. He is already building his reelection campaign around judges. Each confirmation only cements his support among Trump-skeptical Republicans who nevertheless yearn for a conservative judiciary.
Leo will never stop working with Trump. Federalist Society members who claim to despise the president will never stop supporting their friends when Trump nominates them to the bench. And no amount of panels and workshops and debates can paper over the fact that the Federalist Society’s leading lights — the ones who could afford to gather at black-tie dinners last Thursday and Friday — have cast their lot with Trumpism.