The Daily - A 30-Year Plan to Transform the Courts

Episode Date: September 4, 2018

Republicans have created a pipeline of conservative lawyers to help carry out a sweeping reconfiguration of the federal judiciary. Guest: Jason Zengerle, a contributing writer for The New York Times Magazine. For more information on today’s episode, visit nytimes.com/thedaily.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today, with ruthless discipline and a plan decades in the making, the Republican Party is carrying out a sweeping transformation of the federal judiciary. In many ways, it culminates with Brett Kavanaugh, whose Supreme Court confirmation hearings begin this week. It's Tuesday, September 4th. In a unanimous decision, the nine Supreme Court justices ruled racial segregation in publicly supported schools to be unconstitutional, declaring that it denied equal opportunity. The Supreme Court in the 1950s and 60s. The state cannot infringe upon the right of Richard and Mildred Loving to marry because of race.

And into the 70s. on the right of Richard and Mildred Loving to marry because of race. And into the 70s. First in number 70, 18, a row against Wade. Became a real vehicle of liberal social policy. That every man. You're getting versus Wainwright. Is entitled to the benefit of counsel.

The Miranda ruling. You're under arrest. You have the right to an attorney. You have the right to remain silent. And then all the way up to... Not the church, not the state. Women must decide their fate. Roe v. Wade, obviously. In a landmark ruling, the Supreme Court today legalized abortions. All these decisions were quite liberal and quite progressive and really advance a liberal view of American society. Jason Zengerle reported this story for The Times

Magazine. So while liberals are obviously cheered by this, you know, it starts to dawn on conservatives that the courts are behaving in ways that are hostile to their own interests. And in the minds of these conservatives who object to these landmark cases, what was behind these liberal rulings? There were two things. One, there was just the culture of the legal profession, which beginning in law schools, they felt tended to have a liberal bias. So just by its very nature, you were going to have these law schools produce more liberal lawyers. And the second thing they believed was that Republican politicians, Republican presidents weren't necessarily thinking about conservatism when they pick Supreme Court justices. They were looking for people who had experience and

integrity, but they weren't necessarily thinking about their judicial philosophies. So they were appointing judges and justices who weren't themselves necessarily that conservative. Hmm. So conservatives feel in this period that the entire pipeline, the kind of entire legal system that puts people into judgeships, including the Supreme Court, was doing a pretty bad job of representing their viewpoints and cultivating them. Yes, and pipeline's a great word. There was no mechanism for conservatives to climb that ladder necessarily. And then... The nation elected a new president tonight. Ronald Reagan's lead over President Carter is threatening to become a landslide victory. Reagan is elected in 1980, and Reagan

represents a real sea change for the Republican Party in a number of ways. I mean, he's the leader of a conservative movement, but that movement now extends to the courts and the judiciary. A lot of conservatives who were angry about the Supreme Court decisions in the 50s, 60s, and 70s, you know, in Reagan, they had a real vehicle and a champion for imposing an ideological view on these judicial appointments. The courts were no longer walled off from these other political considerations. But it's another thing to actually have enough of these, you know, conservatively-minded judges to actually pick and put on the bench. And I think conservatives recognized that they needed to start laying the groundwork to actually create these kind of judges. If elite law schools were hubs of liberalism,

they weren't going to produce the kind of lawyers that conservatives would need to stock the bench and actually serve as a counterweight to these liberal judges who had made all of these rulings. So what do they do to try to create that counterweight? In 1982, you have a group of somewhat disaffected conservative law students at Yale and at Chicago who are feeling beleaguered and out of place and, you know, surrounded by liberals everywhere. And they, on their own, establish an organization that they call the Federalist Society. Hello, I'm Janice Calabresi, the president of the University of Chicago Federalist Society. Which will be a home for them.

Before I begin, I've had a suggestion. All of you should put the city you're from on your name tag so everybody can get better acquainted. Originally, they just viewed it in some ways as a safe space, just somewhere where they could go to find like-minded people. Thank you all for coming. We really appreciate it. See a lot of new faces in here, a lot of new faces in the hallway coming to a Federalist Society event. But pretty soon, the group starts spreading to other campuses. Hello, everyone. My name is Ben Massey, and I'm the president of the University of Virginia chapter of the Federalist Society.

And conservative law professors. These young Federalists, and they are still most in their 20s, they think of themselves as a new generation of young Turks. 20s, they think of themselves as a new generation of young Turks. Begin to recognize it as a possible vehicle for young conservative lawyers to get the kind of career training, kind of professional connections that eventually will allow them to be ready to assume a place on the bench. And so this group that forms, the Federalist Society, what's that a reference to? It's a reference to the Federalist Papers, which were a series of essays written by some of the framers of the Constitution that laid forth the ground rules that governed the early days of, you know, the American Republic.

The Constitution is a written document whose words were debated at length and carefully chosen, and therefore the founder's handiwork may be presumed to convey an identifiable meaning. The Federalist Society people were kind of establishing themselves as the guardians of what this country was supposed to be about. The Constitution itself, by its own terms, is the supreme law of the land, not the body of constitutional decisions which have grown up around it. They were going to hearken back to its original days. The courts are bound by the written commands of the Constitution, no less than the executive, no less than the Congress.

And make sure that what was happening today was following what the founders intended. These assertions about American law have found hospitality at the hearth of the Federalist Society at a time when legal academic establishment had barred its doors. The conservative critique of the courts was that they were out of step with what they were intended to be, that you had judges kind of imposing their own political and personal opinions on things and not sticking to the letter of the law. And I think that's what the Federalist Society believed they were going to counteract. Liberals would say the way the country was in the 1950s, 60s, and 70s, you know,

it was very different from the country in the 1770s and 1780s. And therefore, it was perfectly acceptable and right for judges to try to take these broad principles and guidelines that were established back then and apply them to today. But if you stick to the letter of what they're saying, it's a fool's errand. So this is really a debate about whether the law should be allowed to be interpreted given the context and the timing of the country at any given moment versus thinking that the law is immutable, immovable, and should remain a constant no matter what's happening. Yes. So it sounds like the Federalist Society is focusing on establishing that pipeline of lawyers who will adhere to this judicial philosophy that you just laid out.

Meanwhile, what is President Reagan doing to support that same kind of vision? I'm pleased to announce that upon completion of all the necessary checks by the Federal Bureau of Investigation... Well, he gets the opportunity to appoint three conservative justices. I will send to the Senate the nomination of Judge Sandra Day O'Connor of Arizona. He appoints O'Connor. I am today announcing my intention to nominate United States Circuit Judge Anthony Kennedy. And Kennedy and Scalia, and he also elevates Rehnquist to chief justice. I've had the honor of nominating Justice Rehnquist to be the next chief justice of the United States

and Judge Scalia to be the associate justice of the United States Supreme Court. So this seems to be going very well, this plan to kind of transform the judiciary, and pretty fast, if you're a conservative thinker or a member of the Federalist Society. Yeah. I mean, at the same time that Reagan is doing this and conservatives are winning the day, the Bork nomination to the Supreme Court is an inflection point. Court is an inflection point. Ladies and gentlemen, it's my privilege tonight to welcome a most able proponent of the rule of law and the great constitutionalist of our time, Robert Bork. And, you know, I think the Bork nomination to the Supreme Court is a real moment. My opinion is that there are too many laws in this country and that we are redressing too many petty grievances. Democrats on the Hill recognize the threat that Bork posed. Bork sides with the president in opposing legalized abortion and many affirmative action decisions.

Robert Bork's America is a land in which women would be forced into back alley abortions. In Robert Bork's America, there is no room at the end for blacks and no place in the Constitution for women. And in our America, there should be no seat on the Supreme Court for Robert Bork. And defeated him. Bork refused to withdraw and the Senate rejected his nomination 58 to 42. That created a sense among some Republicans that they couldn't get too aggressive. They need to be a little bit cagier about what they were trying to do. Because if you nominate someone like Bork, who was so outspoken and just frontal in terms of his judicial views, they weren't going to be able to get

confirmed. And how much of a setback was this for Reagan, conservatives, and the Federalist Society? In some ways, it was the defining event for this Federalist Society in its young life. I mean, I think for a lot of conservative lawyers today, they look back on Bork's defeat as a real moment for them when they realized what they were going to be up against. But then just on a practical level, because they overshot with Bork, they needed to rein things back in. And so ultimately,

Reagan nominates Anthony Kennedy to the seat that Bork would have occupied. And then George H.W. Bush appoints David Souter to the Supreme Court. You know, Reagan and Bush thought that Souter and Kennedy were going to be quite conservative, but there wasn't a lot of evidence for it. And as it turned out, they weren't that conservative. They weren't nearly as conservative as, you know, I think that people hoped they would be. The biggest consequence is Planned Parenthood versus Casey. It's really disturbing that we have to come out here and march for something which is so fundamental as a woman's right to choose. And so in 1992, you get this case that is the vehicle to overturn Roe.

And you have a Supreme Court that has now been stocked with justices who've been appointed by Republican presidents who are considering ideology, considering judicial philosophy. This is what everything has been leading up to. And then— By a vote of 7-2, the court agreed to uphold three of four restrictions on abortions in Pennsylvania. The court whiffs. Justices Sandra Day O'Connor, David Souter and Anthony Kennedy wrote, after considering the fundamental constitutional questions resolved by Roe, we are led to conclude this. The essential holding of Roe v. Wade should be retained and once again affirmed.

The blood of 30 million children is already crying out to Almighty God for vengeance. And today, three Reagan-Bush appointees stabbed the pro-life movement in the back and affirmed the bloodshed. It whiffs because of these three judges who were appointed by Reagan and Bush who can't pull the trigger. They can't actually follow through and overturn Roe. And I think that conservative legal activists viewed this as kind of a failure of nerve, that they had not put people on the bench who could actually carry out the mission. So what conclusion do conservatives draw from this experience about what they need to do next? There are two conclusions. One, they need to just start vetting judicial candidates better. And then at the more sort of ground level, they want to redouble their efforts to produce legal minds that ultimately can get on the bench and carry out the mission. And you see that at the law schools, you know, with the Federal Society, which is now maybe 10 years old and has really kind of established itself and has created a network, not just in these law schools, but,

you know, post-law school. There are now enough conservative judges on the bench that if you're a Federal Society, you know, law student, you can then get a clerkship with one of these judges. society, you know, law student, you can then get a clerkship with one of these judges. And that's going to lead to a clerkship on the Supreme Court. And, you know, after you clerk on the Supreme Court, you go to a law firm where there are other Federalist Society members, other conservatives, and they groom you. And you're just kind of carried along at each step of your career by this network that's been built for you. Thank you very much. It's a delight to be here. And I appreciate very much the invitation by the Federalist Society to come and visit with you.

You know, by the late 90s, it's gone way beyond just law school campuses. It's sort of permeated every level of Republican politics. Good afternoon. I'm Senator Orrin Hatch, and I'm very happy to be with you this afternoon. They're everywhere, and it has become kind of the legal arm

of the Republican Party in some ways, the judicial arm. I'm honored to be with you. Thanks. I appreciate being with an organization that understands the value of free speech, so much so that Gene asked if I'd give one. So if you're a Republican,

you are subscribing to the views of the Federalist Society when it comes to judicial philosophy and who should be in the courts. Yeah, the Federalist Society is now big enough that you have to. You have to abide by its views and wishes, and that's something that George W. Bush learns the hard way. A justice must be a person of accomplishment and sound legal judgment. He has an open Supreme Court seat. A justice must strictly apply the Constitution and laws of the United States and not legislate from the bench.

And he decides to nominate Harriet Myers to fill it. I've known Harriet for more than a decade. I know her heart. I know her character. But she's someone who the Federal Society knows nothing about. As White House counsel, I have enjoyed the opportunity to work with the members of the Congress. She didn't go to one of these elite law schools. She didn't attend Federal Society meetings. She didn't really subscribe to their judicial philosophy or their judicial project.

And now I look forward to the next step in the process that has begun this morning. She's not one of them at all. And they make their objections known. And by that point, they're powerful enough that their objections resonate on Capitol Hill. You must be kidding. This cannot be happening. And Republican senators start to signal that they're not going to vote to confirm her. We begin this evening with Harriet Myers. Earlier today, she withdrew her nomination for the U.S. Supreme Court. And Myers has to withdraw her nomination.

And, you know, it's quite telling that the person Bush nominated in Myers' stead. I am now, and for more than 20 years years have been a member of the Federalist Society. With Samuel Alito, who was a Federalist Society darling. And I would add even a card-carrying member of the Federalist Society, except for the fact that I left my membership cards back in my desk in Newark. the fact that I left my membership cards back in my desk in Newark. I think that was a real moment where the Federalist Society kind of showed that they have to be listened to. So this feels pretty remarkable that in the span of just about 20 years, this organization that had started by opening up chapters on college campuses now has enough power to put its foot down and tell the president of the United

States no for something as big and important as a Supreme Court seat. Yeah. We thought we were just planting a wildflower among the weeds of academic liberalism, and it turned out to be an oak. And so, you know, by 2007, when they have their 25th anniversary gala in Washington, three sitting Supreme Court justices show up for that and pay homage and pay tribute. If the Federalist Society continues to grow, my concern is that there will not be any location in Washington, D.C. that will be big enough to hold the event, maybe FedEx field. But wherever it's held, I hope to be there, and I know that I will see Justice Thomas and Justice Scalia there, and I hope I will see all of you there.

So congratulations to the Federalist Society, and keep up the good work. We'll be right back. So with all of this in mind, how does Donald Trump fit into the Federalist Society's view of the world? Yeah. So, I mean, you know, while the Federalist Society is establishing itself and becoming this 800-pound gorilla in Republican politics, Donald Trump misses all that. You know, the Federalist Society is not involved in landlord-tenant disputes in New York City. Like, they don't have a view on that. And so it's a good bet he doesn't know what the Federalist Society is when he begins his campaign. And the Federalist Society certainly doesn't know Donald Trump. A Trump advisor actually tried to broker a meeting. If a justice of the Supreme Court cannot be counted on to show complete fidelity to the Constitution, then how can we expect that of anyone? Between Leonard Leo, who is the executive vice president

of the Federalist Society, he's kind of is the executive vice president of the Federalist Society, he's kind of the person at the center of the Federalist Society. It has never been and never will be too much to ask that justices of our highest court act in honorable adherence to the supreme law of the land. And a Trump advisor named Sam Nunberg, he told me the story about how he went up to Leo and said, you know, you're not going to believe, you know, Mr. Trump's changed all of his positions on the things you care about. He's now on your side and you're not going to believe how good he's going to be for you. And Nunberg said that, you know, Leo just kind of

nodded his head very politely and listened to him. He called it a Washington listen. And the meeting never happened. But he has been the GOP frontrunner for months now. Even Donald Trump's controversial comments don't seem to hurt his poll numbers too much. By early 2016, Donald Trump's number is bigger than the number two, three and four candidates combined. thoughts about Donald Trump's political aspirations have evolved. And he realizes that he's not in a position where he can really afford to ignore Trump anymore. But I think at another level, it's even more interesting than that. All the things that would lead the federal society to kind of turn their nose up at Trump all of a sudden become opportunities. You know, Trump is so unformed in terms of his judicial philosophy, in terms of his thoughts about judges, just how much he cares about this stuff. I think Leo recognizes that this is actually an incredible

opportunity that they can get in on the ground floor with Trump and they can take ownership of this issue. I mean, they've always had influence with Republican presidents, but Trump offers them something even more than influence. It's almost like Trump could be willing to subcontract to them this entire thing. Because he's kind of a blank slate when it comes to judicial philosophy. Yeah. So I can see why the Federalist Society wouldn't want to work with Trump. But why would Trump want to work with the Federalist Society? Why would this fiercely independent figure who is challenging everything about the Republican Party and its orthodoxies as a candidate want to work with this group that's like an emblem of Republican ideology.

Because Trump, despite all of his rebelliousness, despite all of his outsider status, there's just the matter of getting votes. And he knows that there's a large group of Republican voters that the thing they care about most is the courts. And he needs to convince those voters that he's going to be reliable. I'm going to submit a list of justices, potential justices of the United States Supreme Court that I will appoint from the list. And the best way he can signal to those voters that he will do what they want him to do. I'm going to let people know because some people say, oh, maybe I'll appoint a liberal judge. I'm not appointing a liberal judge. Is by getting the seal of approval from the Federalist Society.

So I went to the Federalist Society, which is sort of the gold standard. He needs the Federalist Society's endorsement as much as the Federalist Society needs him. So I went out and I said, you know what I'm going to do? I'm going to pick 10 judges or 11 judges and we'll see what happens. And I picked 11, gotten from the Federalist Society, run through by a lot of politicians. So he goes to Leonard Leo, who does nothing but think about who the right candidates would be for the Supreme Court. And he says, I want you to give me a list of names who I can put on the court. And, you know, Leonard Leo is very happy to oblige. So he essentially does subcontract this out to the Federalist Society,

not in any kind of metaphorical way, like literally. Yeah, all pretenses have fallen away. I mean, George W. Bush picked Samuel Alito because he knew the Federalist Society liked him. And after the Myers debacle, he needed to make sure he stayed on the good side of the Federalist Society.

But he wouldn't necessarily admit to that. He wouldn't do it out in the open. Trump, he doesn't worry about those niceties. He needs to reassure these people that he's going to pick the right judges. And the best way to do that is to say, I'm going to have the federal society pick them for me. So he just goes ahead and says it. Appreciate all of the help in deciding who to pick for the United States Supreme Court.

And Leonard, you were fantastic, all of your work. So what does handing this process over to the Federalist Society actually look like once Trump is elected? So before Trump even takes office, Leo joins the transition team. And together with Don McGahn, who was the Trump campaign lawyer and has now been tapped to be Trump's White House counsel and, you know, who also happens to have been a longtime member of the Federalist Society, he and Leo begin picking people for these vacancies because there's so many of them. I mean, when Trump is elected, there are over 100 judicial vacancies. So they start, you know, nominating dozens at a time.

The White House announces its, quote, 16th wave of judicial nominees. You know, when the White House releases the names of these nominations, they refer to them as waves. Part of a tsunami of Trump judicial nominees throughout the United States federal court system. They're all the way up, I think, now to the 17th wave. Wow. And up on the Hill. And now here are the ones in the bullpen right now, waiting for their time for confirmation. They're just trying to push these things

through as fast as they can. Mitchell Hall's doing the right thing and getting these lifetime appointments on the bench. Right. So Trump has gotten 26 appeals court judges confirmed in his first two years, which is unprecedented. Trump is outpacing all of his predecessors. And those appellate court judges are inevitably in the pipeline to become Supreme Court justices eventually. Yeah, that's the proving ground. Neil Gorsuch, who was Trump's first Supreme Court nominee, who's now on the Supreme Court,

he came from the 10th Circuit Court of Appeals. Brett Kavanaugh, who Trump has nominated to the Supreme Court, is waiting to be confirmed. He came from the D.C. Circuit Court of Appeals. And they originated in that Federalist Society pipeline. Yes. Good afternoon. I'm Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit. So take Brett Kavanaugh, whose confirmation hearings start today. Thank you to the Federalist Society and particularly to Gene Meyer and Leonard Leo

for organizing this superb convention. He's as pure a product of the Federalist Society as exists. He joins the Federalist Society when he's at Yale Law School. He ultimately goes to work in George W. Bush's White House. George W. Bush appoints him to the D.C. Circuit Court of Appeals. Before that, he clerked for Anthony Kennedy on the Supreme Court. In some ways, he's the poster child for what the Federalist Society has tried to do. So now, with Gorsuch already on the court and Kavanaugh on the verge of being on the court, we have in the Federalist Society this group that's kind of scrappily formed out of opposition to what they see as this liberal judicial system now very much on the cusp of taking over

the most powerful court in the country and effectively reversing this thing that they were formed to try to challenge. Yeah. They've been playing a long game for, you know, three decades, and they're now on the cusp

of achieving what they set out to do. It's kind of amazing how efficiently this group has done something that's unfathomably ambitious to do in a generation. Yeah, it's a real testament to their vision and then their discipline. They haven't taken their eye off the ball. You know, other people weren't paying attention to this, and they were very focused in terms of accomplishing their goals. Jason, thank you very much. I really appreciate it. Thanks for having me on. I appreciate it.

Here's what else you need to know today. The point I'm going to make is that this is not normal. You have a nominee with excellent credentials, with his family behind him. You have the cameras there. You have the senators questioning. But this isn't normal. It's not normal because we are not able to see 100,000 documents because the administration has said we can't see them. documents because the administration has said we can't see them. The Trump administration is refusing to give the Senate more than 100,000 pages of records

from Judge Kavanaugh's time as a lawyer in the administration of George W. Bush, infuriating Democrats. In withholding the documents, the administration is citing executive privilege, arguing that the records contain internal deliberations and candid advice to President Bush and those around him that were never intended to be public. The White House has already turned over more than 415,000 pages of Kavanaugh's records to the Senate, which are likely to be the basis for senators' questions to Kavanaugh during his confirmation hearings. Those hearings begin this morning. That's it for The Daily. I'm Michael Barbaro.

See you tomorrow.