False Federalist Society Denials About Supporting Nominees for Public Office and Why It Matters

Last week, Professor Stephen Sachs, the Antonin Scalia Professor of Law at Harvard Law School, gave the annual Judge Bork lecture at the Federalist Society's national conference. Scalia, Sachs, and Bork--so much originalism all in one place, all at one time, and of course the Federalist Society was the epicenter of it all.

There was a lot of news last week coming out of the Federalist Society's annual event. Judge Edith Jones of the Fifth Circuit took the occasion to personally and inaccurately insult Professor Steve Vladeck, partly by reading a handful of tweets which did not support her criticisms. The moderator, Judge Ho, certainly enjoyed and supported that awful display. I wrote not too long ago about lower court judges acting badly, and here were two more unfortunate examples.

Then there was that hater of all things regulatory, Professor Phillip Hamburger of Columbia, toasting  the Court's efforts to dismantle the administrative state along with two Trump-nominated federal court judges. For Hambuger, that's fine. For the judges, they should not have lifted their glasses. 

I want to focus on one remark made by Professor Sachs during his lecture. I have debated him on four occasions, three of them at judicial conferences. He is kind, charming, and a person I consider a friend despite our strong disagreements over originalism. 

During this gathering of mostly like minds at the Federalist Society's annual event, Professor Sachs gave a speech intended to be, I think, mostly non-partisan, and originalism was only a small slice of the talk. I truly enjoyed and respected much of the speech. However, during his remarks Professor Sachs uttered this line: "The Federalist Society does not support nominees for public office." This statement is not accurate, Professor Sachs should know better, and it matters.

As I've written before, there is an enormous body of data showing that of course the Federalist Society Leadership is instrumental to the GOP's identification of and support for nominees for federal judgeships. 

First, there is Leonard Leo who, as I write these words, is listed as a "Co-Chairman" of the Federalist Society. The New York Times reported in 2017 the following:

Leo sits at the nexus of an immensely influential but largely unseen network of conservative organizations, donors and lawyers who all share a common goal: Fill the federal courts with scores of judges who are committed to the narrow interpretation of the Constitution that they believe the founders intended.

It is fanciful to suggest that Leo, the most influential of all Federalist Society leaders, who was on its board before and after he took a "temporary leave" to actually pick judges for Trump during the president's first term, was not doing so for the Federalist Society in any way other than in name. It is not a coincidence that most of the federal judges nominated by Trump were affiliated with the Federalist Society. Professor Sachs is too smart to not understand what is happening there. 

There is nothing wrong or improper about all of that (elections have consequences) unless the people involved deny it.

Second, you do not have to take my word for the Federalist Society's involvement in picking and supporting judges. As I recounted previously:

At the 2018 Federalist Society gala, Orrin Hatch, the former Republican senator from Utah, declared, to the crowd’s delight, 'Some have accused President Trump of outsourcing his judicial selection process to the Federalist Society. I say, ‘Damn right.' 

The year before, at the 2017 gala, the White House counsel at the time, Don McGahn, who oversaw the administration’s effort to remake the judiciary, joked that it was 'completely false' that the White House had “outsourced” picking federal judges to the group.

There was no need, he said: 'I’ve been a member of the Federalist Society since law school — still am. So frankly, it seems like it’s been in-sourced.'

Mike Davis, of the conservative Article III Project, which forthrightly describes itself (circa 2019) as a group fighting to confirm President Trump’s nominees, said, 'I think there are some liberal judges that are going after the Federalist Society because of how helpful and good they’ve been in helping Trump with judges.'

When Neil Gorsuch was asked in a questionnaire by the Senate Judiciary Committee how he came to President Trump’s attention as a potential Supreme Court nominee, he answered, “I was contacted by Leonard Leo.” 

And finally, the Co-Founder of the Federalist Society, Professor Steven Calabresi, who is also still a "Co-Chairman," said this to the journal The Hill in 2017:

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. 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.

These well-connected and powerful people understand the Federalist Society's role in staffing the judiciary, and there are many more Republicans and conservatives who have said similar things over the years. 

In addition, two (or more) things can be true. Yes, the Federalist Society is a debating society that holds excellent conferences across the land attended by students, lawyers, legal scholars, and judges. It is also true that its leadership works with GOP leaders to find and support nominees for judgeships, and that leadership only picks judges who they think will decide cases in ways that are, well delightful, to that leadership.

Again, there is nothing wrong with all that unless the people involved deny it.

Professor Sachs' denial of the obvious support of the Federalist Society for federal judicial nominees is sadly not uncommon among Federalist Society-affiliated professors. David Bernstein and Ilya Somin in debates with me on social media have consistently denied that the Federalist Society supports nominees for federal judgeships by drawing a lawyer's line between Leo and the Federalist Society, which is obviously absurd and rejected by the GOP politicians quoted above. Leo is the leader of this part of the Federalist Society's unspoken mission. This role is obvious to everyone exccept Federalist Society law professors, and here is why those denials matter.

The Federalist Society website says the following about its mission:

The Federalist Society...is a group of conservatives and libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.  The Society seeks both to promote an awareness of these principles and to further their application through its activities.

The purpose of the judiciary is to "say what the law is, not what it should be." Yet, most Federalist Society affiliated judges view major issues of constitutional law the same way even if there are minor disagreements on the details. Here are just some of the grounds of almost universal agreement among Federalist Society judges:

1) Abortion should be left to the states or Congress.

2) Affirmative action is unconstitutional.

3) The Second Amendment creates a private non-militia right to gun ownership.

4) Campaign finance laws are mostly unconstitutional.

5) The Establishment Clause should be narrowly construed.

I could go and on. The point is that we all know that judges do not "find" constitutional law; they make it. They are players, not umpires. That is why the rules of constitutional law change so dramatically on  a regular basis.

When law professors deny the obvious relationship between the federal judiciary and the Federalist Society, they continue the myth that liberal judges make things up while conservative judges just find the law. But that idea is demonstrably false, as the Roberts Court has aggressively re-made constitutional law in the GOP's and the Federalist Society's joint image in obvious and important ways (see the list above). 

The Federalist Society was instrumental to those changes happening (for better or worse), and one would think its leaders and supporters would take credit for that success. In fact, GOP politicians are proud of the connection and mention them loudly and regularly. It is only the professors who try to hide the ball from the American people, and that ball in the past bounced from the Federalist Society directly to Republican presidents.