Last week’s annual Federalist Society convention featured a program of speakers who confirmed that the Federalist Society is fully committed to Trump’s politicization of our system of justice. The annual dinner featuring Justice Brett Kavanaugh and Senate Majority Leader Mitch McConnell, followed the next day by Attorney General William Barr’s keynote speech, highlighted the evolution of the Federalist Society. Founded by a group of alienated conservative students seeking safe academic space to espouse their unpopular legal views, it has evolved into a political juggernaut that empowers Trump and threatens the legitimacy of our justice system.
The dinner marked the return to public speaking of Kavanaugh, who was met on his arrival by a giant screen broadcasting the testimony of Dr. Christine Blasey Ford accusing him of sexual assault. Regardless of how many standing ovations the Federalist Society gave Kavanaugh, the fact remains that a large segment of the public remains convinced that he lied to Congress to win confirmation and further demonstrated his unfitness for any judicial office by vowing angry revenge against his political opponents. Each day of his service on the Court challenges the Court’s legitimacy and is a stark reminder of Republican capture of the Court to implement its conservative agenda.
Kavanaugh was joined at the dinner by Senator McConnell, the reigning architect of that capture. McConnell’s shunning of Merrick Garland ensured a Republican majority on the Court. The occupant of the stolen seat — Justice Neil Gorsuch — also attended the dinner. McConnell’s subsequent conversion of the Senate into an assembly line to confirm an unprecedented number of unqualified ideologues has ensured a judiciary sympathetic to Republican political goals for years to come.
The third speaker was Attorney General Barr. In his year at the helm of the Department of Justice, Barr has proven himself more interested in protecting Trump under cover of his exaggerated view of executive power than upholding the rule of law. The Attorney General, more than any other member of the executive branch, must remain independent of the White House. Barr is charged with interpreting the law and making law enforcement decisions based on facts and law, free of political instruction. He owes primary fidelity to the Constitution. The public’s belief that the Attorney General and all who work under him are governed by these principles is the currency that legitimizes federal law enforcement.
Barr’s speech was a disturbing mash-up of historical fantasy in service of a theory of virtually unaccountable executive power. Bizarrely, he portrayed executive power in decline, ignoring persistent conservative complaints during Obama’s presidency that executive power had exceeded all constraints. Equally disturbing was Barr’s repeated display of religiously-driven hostility toward people who do not share his right-wing views.
This was a theme Barr developed in a recent speech at Notre Dame Law School, in which he argued that the forces of good (defined as religious followers of Judaism and Christianity) are at war with “the left,” defined as “secularists” and “progressives.” He stated that “secularists, and their allies among the ‘progressives,’ have marshaled all the force of mass communications, popular culture, the entertainment industry, and academia in an unremitting assault on religion and traditional values.” He then stated “that the secular project has itself become a religion, pursued with religious fervor. It is taking on all the trappings of a religion, including inquisitions and excommunication.”
Before the Federalist Society, he continued this religiously framed assault on liberals, stating: “The so-called progressives treat politics as their religion. Their holy mission is to use the coercive power of the State to remake man and society in their own image…” He warned: “They are willing to use any means necessary to gain momentary advantage in achieving their end…” Conservatives, on the other hand, are guardians of “the proper balance of freedom and order,” and “test the propriety and wisdom of action under a ‘rule of law’ standard.”
Barr sees conservatives and “the left” in a holy war in which — in a stunning display of projection — he has tarred the left as “engaged in the systematic shredding of norms and the undermining of the ‘rule of law.’” In reality, Barr’s belief in this holy war with the left has combined with his belief in an executive on steroids to make him Trump’s chief enabler in dismantling norms and defying the rule of law.
Outwardly, the Federalist Society continues to serve as a debating society, offering programs on law and policy through its national organization and many chapters. While the subjects of its programming often reflect conservative interests, the group frequently invites progressive academics and practitioners to present an opposing view, something I used to do on occasion.
The Federalist Society has consistently insisted that it does not take positions on judicial nominations. That insistence has become meaningless in a world in which it has become the primary incubator for candidates and the White House has outsourced identification and vetting of nominees to it. The Society’s longtime Executive Vice President, Leonard Leo, while purporting to act in a private capacity, sits at the center of a shadow operation that directs the flow of dark dollars to confirm judges. The Federalist Society’s reach does not stop with judges. This Administration’s top legal jobs are filled with its members.
The Federalist Society’s convention highlighted its capture of the federal justice system. It showcased the Society’s influence in the Senate, the judiciary, and law enforcement. For its members, that was cause for celebration. For those committed to fair and independent judges, robust exercise of the Senate’s advice and consent power, and enforcement of the law free of political favor, it was an urgent call for change.