Posts on Federalist Society

The Hartford Courant raises some interesting questions about just what the Law Enforcement Legal Defense Fund - a right-wing Virginia non-profit organization overseen by the likes of Ed Meese, William Bradford Reynolds, and Al Regnery - is doing with the funds it has been raising because it seems like most of it is going to toward fund-raising, salary for its leadership, and to prop up right-wing organizations to which they have ties, like The American Spectator, the Intercollegiate Studies Institute, and the Federalist Society :

Tens of thousands of Americans have contributed to the Law Enforcement Legal Defense Fund after reading letters like Stephanie Lawlor's. But while those donations total millions every year, the fund spends only pennies on the dollar directly assisting officers facing criminal charges, state and federal filings show.

Over the past five years, the charity collected more than $13 million, primarily through direct-mail pitches. But most of that money — more than $9 million — went right back to the professional fundraisers hired by the nonprofit legal defense fund.

Last year, for example, the group spent 81 cents on fundraising for every dollar collected, according to federal tax forms. After other expenses, the defense fund last year devoted only about 8 cents on the dollar to charitable grants, the tax forms show.

That grant money — about $275,000 — was less than the group's co-founders paid themselves in salary and benefits for the year. David H. Martin, a Washington lawyer who serves as chairman, collected $156,000, while Alfred Regnery, publisher of The American Spectator Magazine, received $81,000 for the part-time job of secretary-treasurer. In addition, the charity paid $54,000 into retirement accounts for Martin and Regnery.

In a telephone interview earlier this month, Martin said the charity is at the mercy of expensive mail solicitations. "It's hard to raise money through direct mail. Why? Because postage is so expensive," he said. "It's just a killer."

Martin said he believed the group's fundraising efficiency had consistently improved in recent years. But federal filings suggest just the opposite, showing the cost of raising money increasing each of the last five years, from about 60 cents in fundraising costs for every dollar raised in 2003, to 81 cents last year.

At the same time, administrative costs have soared, particularly for salaries and rent. For years, the legal defense fund was run out of Martin's law office. But the nonprofit now subleases space at Regnery's financially strapped American Spectator. The initial rent in 2003 was $9,000 a year, but the nonprofit agreed last year to increase its payments to $42,000 a year — about a third of the total rent for the American Spectator's space. Martin said the rent covers a large amount of storage space and offices for himself and a clerk, and he said he thought the rent was fair.

And even as the charity devoted only a small fraction of its budget to grants, not all of the money doled out went to help accused officers. Instead, the charity's executives have sent a sizable and growing amount of cash to a small number of universities and conservative policy groups not mentioned in their fundraising pitches.

The charity's biggest beneficiary last year, for example, was not a police officer, but the Intercollegiate Studies Institute, a national campus-based think tank that promotes "limited government, individual liberty, personal responsibility, the rule of law, market economy, and moral norms."

The Law Enforcement Legal Defense Fund sent $75,000 to the institute last year, part of at least $360,000 the defense fund has pledged. Regnery, secretary-treasurer of the defense fund, is chairman of the institute's board of trustees. The charity has also given tens of thousands of dollars to the Federalist Society, described by The American Conservative magazine as a "training ground for young conservative lawyers"; to the Law and Economics Center at George Mason University in Virginia, a leading center of conservative and libertarian legal studies; and to a project at McDaniel College — Martin's alma mater.

It seems like it was just a few days ago that I was pointing out that the Federalist Society's claims that it was just some non-political debating society was entirely bogus. 

Now comes an article in the Washington Post saying that, after eight years of driving the Bush Administration's "efforts to change the federal judiciary," the Federalist Society must now be prepared to find itself out in the wilderness, which Federalist Society head Leonard Leo laughed off, saying that nothing would really change because the organization was really just a debating society all along:

Federalist Society executive vice president Leonard A. Leo laughed when asked about the wilderness remark, saying, "I know the media likes to talk about us in terms of power and influence." But he said the group's primary goal has always been discussion of legal interpretation and limited constitutional government, and that that "remains as important as it was on November 3rd."

Leo can laugh all he wants, but his days of working hand-in-glove with the Bush Administration to get its nominees confirmed are over and while he can try and pretend that they never really had that much influence, anyone who has paid any attention to the judicial confirmation battles over the last several years knows the truth about just how deeply he and his organization were involved and fully expects them to be just as involved, albeit in trying to prevent confirmations, during the Obama administration.

Several years ago, we wrote a report debunking the Federalist Society’s protestations that it is little more than a “debating society” and didn’t try to shape legislation, support or oppose nominees, or take political positions. As we noted at the time, and which has become increasingly clear in the interceding years, Federalist Society members have all but overrun various government agencies during George Bush’s tenure in office and the administration has worked hand-in-glove with its members both inside and outside of government to press their common agenda.  

But still the Federalist Society insists that it is just a quaint little group of like-minded people who are only interested in debating ideas:

Q. Does the Federalist Society take positions on legal or policy issues or engage in other forms of political advocacy?

A. No. The Society is about ideas. We do not lobby for legislation, take policy positions, or sponsor or endorse nominees and candidates for public service. While overall the Society believes in limited government, its members are diverse and often hold conflicting views on a broad range of issues such as tort reform, privacy rights, and criminal justice.

That claim makes this article from the AP all the more interesting because, as the AP reports, back in 2007 right-wing judicial activists were not happy with Missouri Gov. Matt Blunt’s pick for the state Supreme Court and were trying to derail it.  That that end, Blunt’s own chief of staff sought to enlist the help of the Federalist Society’s Leonard Leo, who was more than happy to oblige:   

In a July 2007 e-mail, Martin asked Leonard Leo, executive vice president of the conservative legal group Federalist Society, to send an "unsolicited" e-mail saying: "go get ’em governor - and we’ve got your back."

A day later, Leo sent Martin an e-mail addressed to Blunt. It pledged help and urged the rejection of the Missouri Supreme Court nominees if they are "anything less than outstanding." Leo, in later e-mails, said Breckenridge should be framed as "out of the mainstream."

…

Tipped off early that Breckenridge was picked, Leo told Martin that Blunt’s decision "leaves a big problem for many future generations of Missourians."

"Your boss is a coward, and conservatives have neither time nor patience for the likes of him," Leo wrote.

Apparently, just because the Federalist Society is “nonpartisan” and doesn’t weigh in on “nominees and candidates for public service” doesn’t mean that Leo can’t use his position as executive vice president of the organization to do just that – something, it should be noted, he also did as part of the “Four Horsemen” on behalf of the Bush administration’s judicial nominees.

It was not too long ago that I wrote a post about how complicated it is to try and make accurate statements about judicial confirmation rates and how Republicans and right-wing judicial activists exploit that fact to make it seem as if President Bush has somehow gotten a raw deal when it comes to seeing his judges confirmed. 

Today comes an op-ed by Federalist Society founder Steven Calabresi in the Wall Street Journal making the same point and issuing a dire warning that if Barack Obama is elected, we're going to see a complete take over of the federal judiciary by liberal activist judges:

One of the great unappreciated stories of the past eight years is how thoroughly Senate Democrats thwarted efforts by President Bush to appoint judges to the lower federal courts.

Consider the most important lower federal court in the country: the United States Court of Appeals for the District of Columbia Circuit. In his two terms as president, Ronald Reagan appointed eight judges, an average of one a year, to this court. They included Robert Bork, Antonin Scalia, Kenneth Starr, Larry Silberman, Stephen Williams, James Buckley, Douglas Ginsburg and David Sentelle. In his two terms, George W. Bush was able to name only four: John Roberts, Janice Rogers Brown, Thomas Griffith and Brett Kavanaugh.

Although two seats on this court are vacant, Bush nominee Peter Keisler has been denied even a committee vote for two years. If Barack Obama wins the presidency, he will almost certainly fill those two vacant seats, the seats of two older Clinton appointees who will retire, and most likely the seats of four older Reagan and George H.W. Bush appointees who may retire as well.

The net result is that the legal left will once again have a majority on the nation's most important regulatory court of appeals.

The balance will shift as well on almost all of the 12 other federal appeals courts. Nine of the 13 will probably swing to the left if Mr. Obama is elected (not counting the Ninth Circuit, which the left solidly controls today). Circuit majorities are likely at stake in this presidential election for the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuit Courts of Appeal. That includes the federal appeals courts for New York City, Los Angeles, Chicago, Boston, Philadelphia and virtually every other major center of finance in the country.

The interesting thing about Calabresi's handwringing that "majorities are ... at stake ... for the First, Second, Third, Fourth, Fifth, Sixth, Seventh and Eleventh Circuit Courts" is his willingness to overlook the basic fact that the Republican majorities on a lot of circuit courts are at stake mainly because Republicans have majorities on nearly every circuit court in the country.

Take a look at this breakdown from the Alliance for Justice of current circuit court justices by appointing president and you'll see that, with the exception of the 9th Circiut and ties on the 2nd and 3rd Circuits,  Republican judges outnumber Democratic judges across the board:

DC Circuit: 7 Republican - 4 Democratic

1st Circuit: 3 Republican - 2 Democratic

2nd Circuit: 6 Republican - 6 Democratic

3rd Circuit: 6 Republican - 6 Democratic

4th Circuit: 7 Republican - 4 Democratic

5th Circuit: 13 Republican - 4 Democratic

6th Circuit: 10 Republican - 6 Democratic

7th Circuit: 8 Republican - 3 Democratic

8th Circuit: 9 Republican - 2 Democratic

9th Circuit: 11 Republican - 16 Democratic

10th Circuit: 8 Republican - 4 Democratic

11th Circuit: 7 Republican - 5 Democratic

Federal Circuit: 8 Republican - 4 Democratic

Overall, Republican circuit court judges outnumber Democratic judges 103-66.  And the reason for that is because for 20 of the last 28 years, Republicans have occupied the White House and have filled the federal bench with judges who share their ideology.  As the AFJ points out:

Judges appointed by Republican presidents dominate the Supreme Court, the courts of appeals, and the district courts. Over 58% of all federal judges were appointed by Republican presidents. George W. Bush has appointed nearly 37% of all sitting federal judges.

After two decades of Republican presidents stacking the federal bench with judges who share Calabresi's right-wing Federalist Society ideology, creating an situation in which that ideology dominates nearly every court in the land, Calabresi is suddenly worried about balance and fairness and breathlessly warning that the "federal courts hang in the balance" because "nothing less than the very idea of liberty and the rule of law are at stake in this election?" 

Give me a break.

At the Federalist Society's "The Presidency and the Courts" forum yesterday in Cincinnati, President Bush took time to rally the troops and bask in their loving glow as he recounted his battles over the issue of judicial nominees and reminded his audience that, just as he had promised, he put two new justices on the Supreme Court who shared their right-wing ideology:

When asked if I had any idea in mind of the kind of judges I would appoint, I clearly remember saying, I do. That would be Judges Scalia and Thomas ... And I made a promise to the American people during the campaign that if I was fortunate enough to be elected my administration would seek out judicial nominees who follow that philosophy ... I have appointed more than one-third of all the judges now sitting on the federal bench, and these men and women are jurists of the highest caliber, with an abiding belief in the sanctity of our Constitution ... America is well served by the 110th justice of the United States Supreme Court -- Samuel A. Alito ... I was very proud to nominate for the Supreme Court a really decent man, and a man of good judgment, and that would be Chief Justice of the Supreme Court, John Roberts.

Bush then went on to lament the politicization of the confirmation process, pointing to the treatment of Miguel Estrada as a prime example, and blasting those who engaged in "harmful tactics and maneuvers to thwart nominees": 

Unfortunately, Miguel Estrada's experience is not an isolated one. Many other well-qualified nominees have endured uncertainty and withering attacks on their character simply because they've accepted the call to public service. Those waiting in limbo include: Peter Keisler for the D.C. Circuit, Rod Rosenstein for the Fourth Circuit, and dozens of other nominees to district and circuit courts across this country.

...

The broken confirmation process has other consequences that Americans never see. Lawyers approached about being nominated will often politely decline because of the uncertainty and delay and ruthlessness that now characterizes the confirmation process. Some worry about the impact a nomination might have on their children, who would hear their dad or mom's name dragged through the political mud. This situation is unacceptable, and it's bad for our country. A judicial nomination should be a moment of pride for nominees and their families -- not the beginning of an ugly battle.

...

The American people expect the nomination process to be as free of partisanship as possible, and for senators to rise above tricks and gimmicks designed to thwart nominees ... In Washington, it can be easy to get caught up in the politics of the moment. Yet if we do not act to improve the confirmation process, those who are today deploying harmful tactics and maneuvers to thwart nominees will sooner or later find the tables turned.

Oddly, he didn't mention the most high profile vicitim of this problem - Harriet Miers:

According to “WithdrawMiers.org,” a coalition formed by the Eagle Forum’s Phyllis Schlafly, Fidelis, and others for the sole purpose of opposing the nomination: “Miers’ … few published writings offer no real insight or assurance of a judicial philosophy that reflects a commitment to the Constitution.” And on issues where Miers had something of a record, WithdrawMiers.org was not impressed: “Ms. Miers fought to remove the pro-abortion plank in the American Bar Association platform, yet fought this Bush Administration in ending the ABA’s role in vetting judges which is known to be biased against judges whose judicial philosophies reflect a clear commitment to the Constitution. She donated money to a Texas pro-life group, yet helped establish an endowed lecture series at Southern Methodist University that brought pro-abortion icons Gloria Steinem and Susan Faludi to campus.”

Like WithdrawMiers.org, Americans for Better Justice sprang up simply to oppose the Miers nomination. Founded by ultra-conservatives like David Frum, Linda Chavez, and Roger Clegg, ABJ was unconvinced that Miers shared its founders’ right-wing views and began gathering signatures on a petition demanding Miers’ withdrawal: “The next justice of the Supreme Court should be a person of clear, consistent, and unashamed conservative judicial philosophy … The next justice should be someone who has demonstrated a deep engagement in the constitutional issues that regularly come before the Supreme Court — and an appreciation of the originalist perspective on those issues … For all Harriet Miers’ many fine qualities and genuine achievements, we the undersigned believe that she is not that person.”

The right-wing magazine National Review had, in many ways, led the charge against the Miers nomination from the very beginning. Its writers called Miers “a very, very bad pick,” declared her nomination “the most catastrophic political miscalculation of the Bush presidency” and complained that the Right had been forced to endure “an embarrassingly lame campaign from the White House, the Republican National Committee, and their surrogates.”

What caused this gnashing of teeth was the fact that, according to the National Review’s editorial board, “There is very little evidence that Harriet Miers is a judicial conservative, and there are some warnings that she is not … neither being pro-life or an evangelical is a reliable guide to what kind of jurisprudence she would produce, even on Roe, let alone on other issues.”

Others on the Right were just as dismayed by the nomination. American Values’ Gary Bauer explained: “[Harriet Miers] has not written one word, said one word, given a speech, written a letter to the editor on any of the key constitutional issues that conservatives care about and are worried about and want to make sure the court does not go down the road on."

The Wall Street Journal called the nomination a “political blunder of the first order,” lamenting that “After three weeks of spin and reporting, we still don't know much more about what Ms. Miers thinks of the Constitution.”

Stephen Crampton of the American Family Association said Miers is a “stealth candidate for a seat on the Supreme Court [and] is an unknown with no paper trail,” while the Christian Defense Coalition blasted the president, saying his supporters “did not stand out in the rain for 20 hours passing out literature or putting up signs for the President to have him turn around and nominate Harriet Miers to the Supreme Court. A nominee in which there is no record of their judicial philosophy or view of the Constitution.”

Back when John Roberts was preparing for his confirmation hearing, Concerned Women for America was praising him as a “highly qualified nominee with extraordinary personal integrity who has proven himself worthy to sit on our nation's highest court.” CWA said “Senators should ignore the ridiculously inappropriate litmus tests and document demands of the radical left” and that Roberts “should receive overwhelming bi-partisan support and confirmation.”

This is in stark contrast to the stand CWA took on Miers: “We believe that far better qualified candidates were overlooked and that Miss Miers’ record fails to answer our questions about her qualifications and constitutional philosophy … We do not believe that our concerns will be satisfied during her hearing." In calling for her withdrawal, CWA revealed their real objection: “Miers is not even close to being in the mold of Scalia or Thomas, as the President promised the American people.” They demanded that the president give them a “nomination that we can whole-heartedly endorse.”

If one thing is for sure, it is that the paramount issue for the Right over the last several years has been gaining control over the federal judiciary and especially the Supreme Court. This has been the one unifying theme of their efforts to rally behind John McCain and one McCain himself has been citing at every opportunity.

So it was to be expected that this sort of article from CNSNews would emerge sooner or later, in which just about every right-wing judicial activist is given an opportunity to attack Joe Biden as the man single-handedly responsible for everything that is wrong, from their perspective, with the judicial nomination process:

[C]onservatives say that for 27 years, Biden has served as a liberal front man for attacking conservative judicial nominees and principles – notably during the confirmation hearings of Judges Robert Bork and Clarence Thomas.

…

"Liberal special interest groups worked hand-in-hand with the liberal members of the Judiciary committee to sink Bork, and Biden was in charge of it all," [Focus on the Family's Bruce] Hausknecht said.

[Federalist Society Founder Stephen] Calabresi said that even though it was Biden’s liberal compatriot on the committee, Sen. Edward Kennedy (D-Mass.) who was the most visible in leading the attack on Bork, Biden was hardly a mere bystander.

"It’s important to remember that Sen. Biden was the chairman of the committee during the Bork nomination and the Thomas confirmation fights," Calabresi reiterated.

Legal Times notes that the Federalist Society, currently at the apex of its influence in Washington, DC, is "primed to go to the states, becoming far more involved in building a conservative judiciary at the state level."

He said at Federalist Society meeting.

Mitt Romney continues to pick up endorsements and support from various right-wing leaders – the most recent being Paul Weyrich – and is working hard to establish himself as the candidate of choice for those who just cannot stomach the idea of supporting Rudy Giuliani.   In fact, that seems to be the primary reason Weyrich is even backing Romney: “I’m not for Giuliani. I want to try to stop him from getting the nomination.”  

But while he is slowly winning over the leaders of the right-wing establishment, the rank and file voters are still leery of, if not openly hostile to, his Mormon faith.  As Salon reported yesterday:

The Romney campaign, which has aggressively courted religious voters, is well aware of the problem. Romney has found himself, by dint of his personal faith, in the middle of a long-running competition between two rival evangelical faiths, each claiming the true word of God in the fight for converts. "It's Pepsi vs. Coke," said one Romney campaign aide, describing the differences between evangelical Protestants and Mormons. "But sometimes Pepsi and Coke have to team up to stop Starbucks from taking over the market." Starbucks, of course, represents secular America, which favors gay marriage, legal abortion and the minimization of religion in public life.

Romney, like Giuliani, appears to hope that he can win over these voters by pledging to nominate right-wing ideologues to the Supreme Court, which is just what he promised when speaking yesterday before the Nova Southeastern University Law School’s chapter of the Federalist Society: 

Republican presidential candidate Mitt Romney, speaking in Davie, said his commitment to appointing conservative judges in the mold of Antonin Scalia and Clarence Thomas would help him correct the nation's direction.

To reinforce this pledge, the Romney campaign even trotted out two members of his Advisory Committee on the Constitution and the Courts to make the case for him in the pages of The National Review:

As the addition of Chief Justice Roberts and Justice Alito to the Supreme Court has demonstrated, judicial appointments can be among a president’s most lasting legacies. The judges a president appoints will typically serve well beyond his term of office, interpreting our laws and Constitution for decades to follow. The next president may have the opportunity to appoint at least one justice to the Supreme Court and, like any new administration, will surely face a large number of courts-of-appeal and district-court vacancies.

For that reason, it is critically important to consider what type of individual a presidential candidate would nominate to the bench. We are confident that if elected as president, Governor Romney would appoint individuals to the federal courts who respect the appropriate role of the judiciary in our democratic system.

But as rival Fred Thompson is pointing out, like many of Romney’s pledges, his record on this point doesn’t match his current rhetoric:

Of the 36 lawyers Romney nominated, 23 were registered Democrats or independents who donated to Democratic candidates or voted in Democratic primaries, according to a Boston Globe analysis that was circulated by rival Fred Thompson. Two appointees supported expanding gay rights.

As we noted earlier, such inconsistencies do not appear to be of much concern to many on the Right, because such flip-flopping only makes Romney more beholden to them – or, as Weyrich put it:

I think [Romney] is somebody who is rushing toward the movement trying to present himself as a conservative and in some ways it's more useful to have somebody like that.

Giuliani announced his Georgia Lawyers for Rudy Leadership Team, many of whom are Federalist Society members.

Right-wing pseudo-historian David Barton will be addressing the Regent Law School chapter of the Federalist Society today.

Suppose you are the President of the United States and you are nearing the end of your time in office with dismal approval ratings and a history of seeing a bunch of your controversial judicial nominees run into opposition in the Senate for a variety of reasons, so much so that you had even been forced to withdraw more than one nominee to the Fourth Circuit because of such opposition.  

Would you, in an attempt to find nominees that could win widespread support, consider listening to home state Senators when they make bipartisan recommendations for filling vacancies to that circuit?  

Not if you are George W. Bush:

The Chicago Tribune notes that Rudy Giuliani is utilizing the Federalist Society in an attempt to assure the Right that he'll appoint their kind of judges and that he isn't the only one courting the groups: "Mitt Romney and Fred Thompson also have recruited members to high-level positions in their organizations."

American Freedom Agenda (ACU’s Keene, Richard Viguerie, Bob Barr, Bruce Fein) cites checks and balances, rule of law. Meanwhile: US Attorney hires based on Federalist Society membership and GOP work.

At think tanks and schools, The New Republic reports.