Federal Court Appointment Process
1. U.S. Department of Justice keeps a file on likely candidates, getting names from
Senators and other important party leaders.
2. Informal investigation is conducted with outsiders by the Deputy Attorney
General.
3. The names of leading candidates are sent to the American Bar Association
(ABA) Standing Committee on the Federal Judiciary, and the Committee rated
them:
Exceptionally Well Qualified
Well Qualified
Qualified
Not Qualified
[Please note that this part of the appointment process was suspended by
President Donald J. Trump as it was earlier by President Richard M.
Nixon. Trump, moreover, replaced the American Bar Association with the
conservative Federalist Society.]
4. An appointment decision is made by the Attorney General after which the
Department of Justice consults with the U.S. Senate Judiciary Committee.
5. FBI investigation.
6. Recommendation from the Attorney General to the President.
7. Announcement of the nomination by the President, and it is sent to the Senate.
8. The Senate Judiciary Committee hold confirmation hearings, votes on the
nominee, and reports to the full Senate where a final vote is taken.
9. The nomination goes to the President for signature after a majority vote of the
Senate.
How the Trump Administration Is Remaking
the Courts
Thanks to ruthless discipline — and a plan long in the making — the G.O.P is
carrying out a sweeping transformation of the federal judiciary.
Jason Zengerle, The New York Times Magazine Online Edition, August 22, 2018.
Donald F. McGahn, the White House counsel, stood in the gilded ballroom of
Washington’s Mayflower Hotel last November to address the annual meeting
of the Federalist Society. He seemed humbled, even a bit awed to be delivering
the Barbara K. Olson Memorial lecture, named after the conservative lawyer
who died in the Sept. 11 attacks. Noting some of the legal giants who gave the
Olson lecture in years past, McGahn reflected, “You hear names like Scalia,
Roberts and Gorsuch and then me; one of those names really is different than
the rest.” Unlike previous speakers — to say nothing of many of those to whom
he was now speaking — McGahn, himself a member of the Federalist Society,
hadn’t attended an Ivy League law school; he went to Widener University, a
“second tier” law school in Pennsylvania. He had never held a tenured
professorship or boasted an appellate practice, much less a judgeship, that
required him to think deeply about weighty constitutional issues; he
specialized in the comparably mundane and technical field of campaign
finance and election law. “But here we are,” McGahn said to the audience,
almost apologetically. In 2015, Donald Trump hired McGahn to be the lawyer
for his long-shot presidential campaign. Then, after Trump shockingly won
the election, he tapped McGahn, who had proved his talent and loyalty during
the campaign, to be White House counsel. Trump, in other words, had made
McGahn’s wildest dreams come true. Now, McGahn told the Federalist
Society, Trump was going to make their wildest dreams come true, too.
The Federalist Society for Law and Public Policy Studies, as it is officially
known, has played a crucial role in putting conservative jurists on the bench.
As White House counsel, McGahn is responsible for helping Trump select his
judicial nominees. And, as he explained in his speech that November
afternoon, he had drawn up two lists of potential judicial appointments. The
first list consisted of “mainstream folks, not a big paper trail, the kind of folks
that will get through the Senate and will make us feel good that we put some
pragmatic folks on the bench.” The second list was made up of “some folks
that are kind of too hot for prime time, the kind that would be really hot in the
Senate, probably people who have written a lot, we really get a sense of their
views — the kind of people that make some people nervous.” The first list,
McGahn said, Trump decided to “throw in the trash.” The second list Trump
resolved “to put before the U.S. Senate” for a confirmation vote. The president,
McGahn assured his audience, was “very committed to what we are committed
to here, which is nominating and appointing judges that are committed
originalists and textualists.”
As White House counsel, McGahn has exercised an unprecedented degree of
control over judicial appointments. In previous White Houses, both
Republican and Democrat, judicial nominations were typically crowdsourced
among officials from different parts of the administration. Under George W.
Bush, for instance, there was a judicial-selection committee made up of people
from the offices of the White House counsel, political affairs and legislative
affairs, as well as officials from the Justice Department. This tended to
produce a leveling effect. “You killed nominees by committee,” says one
Republican involved in judicial confirmations. Under Trump, the job belongs
exclusively to the White House Counsel’s Office, with McGahn and his deputy,
Robert Luther, and about 10 associate counsels identifying and then
scrutinizing candidates. This process is unique in White House history.
Instead of engaging in the typical legislative horse-trading for nominating
judges — promising a senator, for instance, that the president will support the
nomination of the lawyer who served as the senator’s campaign-finance
chairman in exchange for a yes vote on the administration’s agriculture bill —
the Trump White House has given the counsel’s office near-absolute authority.
In a White House known for chaos and dysfunction, the counsel’s office, under
McGahn, is generally viewed as an island of competence. “The White House is
like a Dante’s ‘Inferno’-strange comedy,” says one leading conservative lawyer
who requested anonymity for fear of reprisal, “but the people in the counsel’s
office are like the A-Team.” That many of the lawyers in the counsel’s office
are also Federalist Society members — as elite Republican lawyers today often
are — has given McGahn a handy rebuttal to the complaint that Trump has
outsourced his judicial-selection process to the group. “Frankly,” McGahn has
said, “it seems like it’s been insourced.”
While Trump has lagged behind other presidents in political appointments,
the streamlining of the judicial-selection process has helped him deliver a
historic number of judges to the federal bench. In 2017, the Senate confirmed
12 of Trump’s appeals court picks — the most for any president in his first year
in office. This year, the Senate has already confirmed 12 appellate judges and,
according to a Republican Judiciary Committee aide, hopes to confirm at least
four more. The White House refers to every new batch of judicial appointees
Trump selects as “waves” — in early June, it announced the “Fifteenth Wave of
Judicial Nominees”— as if they’re soldiers landing on the beaches of
Normandy.
Trump’s appointees have tended to be unusually well credentialed and
conservative. Republicans like to emphasize their academic and professional
bona fides — the summa cum laudes, the Phi Beta Kappas, the Supreme Court
clerks — and jokingly celebrate their “deep bench” of candidates. Democrats,
for their part, prefer to focus on the appointees’ ideology. “If someone had said
or written something half as controversial as these Trump nominees, they
never would have been picked by President George W. Bush,” says Kristine
Lucius, a former Democratic Senate Judiciary Committee aide and now the
executive vice president for policy at the Leadership Conference on Civil and
Human Rights. “What once would have been disqualifying” — a nominee’s
stated views on contraception or gay rights or consumer protection — “is now
motivating this president.” Or perhaps, the nominees’ views are what’s
motivating many conservatives to go along with Trump’s presidency — which
is what’s motivating Trump.
When it comes to Trump’s judicial appointments, the public has been
understandably focused on the Supreme Court, with first Neil Gorsuch and
now Brett Kavanaugh receiving most of the attention. When one of Trump’s
lower-court nominees has managed to penetrate public consciousness, it has
usually been an outlier, like Brett Talley, whom Trump picked last year for an
Alabama Federal District Court judgeship. Talley, who had never tried a case
and whom the American Bar Association rated unanimously “not qualified,”
ultimately withdrew his nomination after it was discovered that he was a
member of a ghost-hunting group and had apparently defended the honor of
the early Ku Klux Klan on an Alabama Crimson Tide football fan message
board.
More representative of Trump’s judicial appointees are judges like James C.
Ho. Born in Taiwan, Ho moved to the United States as a toddler. He graduated
from Stanford and the University of Chicago law school before going on to
clerk for Clarence Thomas at the Supreme Court. After working in George W.
Bush’s Justice Department, he succeeded Ted Cruz as Texas solicitor general.
Ho is as pure a product as exists of the conservative legal movement created
by the Federalist Society. Last October, Trump nominated Ho to the United
States Court of Appeals for the Fifth Circuit. In December, he was confirmed
by the Senate. And in April, Ho issued his first opinion — a blistering dissent
in a campaign-finance case after a Fifth Circuit appellate panel ruled, 12 to 2,
that the City of Austin, Tex., could prohibit individuals from donating more
than $350 per election to municipal candidates. Ho used his dissent not only
to voice his disapproval of campaign-finance laws but also to criticize those
that regulated gun purchases and protected abortion; he even threw in a
swipe, in a citation, at the Supreme Court’s Obamacare ruling. Lamenting a
government that has grown so large that it “would be unrecognizable to our
founders,” Ho wrote: “If there is too much money in politics, it’s because
there’s too much government. The size and scope of government makes such
spending essential.”
To be sure, Ho’s was a dissenting opinion, but what so cheered members of the
conservative legal movement is that it was likely the first of many, because Ho
is only 45. And because there will be more and more judges like Ho on the
federal bench, it’s only a matter of time before such opinions will no longer be
dissents. Indeed, after just 18 months, Trump has “flipped” two circuits — the
Sixth and Seventh — from what Trump’s supporters in the conservative legal
movement consider “liberal” to more properly conservative. Two more — the
Eighth and the 11th — are on the verge of tipping. Even circuits that are
decidedly liberal are undergoing significant changes. “It’ll be really important
for the Second and the Ninth Circuits to have between two and four really
good, high-octane intellectual conservative jurists,” explains a person close to
the judicial-nominations process, “because dissents provide a signaling
function to the U.S. Supreme Court, and those are very important circuits.”
In short, a radically new federal judiciary could be with us long after Trump is
gone. Brian Fallon, a veteran Democratic operative who leads Demand
Justice, a group formed to help Democrats with research and communications
in the judicial wars, says, “We can win back the House this November, we can
defeat Trump in 2020 and we’ll still be dealing with the lingering effects of
Trumpism for the next 30 or 40 years because of the young Trump-appointed
judges.”
And if Trump is re-elected? Newt Gingrich, who during the 2016 campaign
began emphasizing the importance of judges to Trump, posits: “He could, by
the end of his time in office, be the most important president since Franklin
Delano Roosevelt in shaping the judiciary.”
Like most members of the Republican establishment, Leonard Leo, the
executive vice president of the Federalist Society, was initially skeptical — if
not contemptuous — of Trump’s political aspirations. A few months before
Trump announced his presidential bid in 2015, Sam Nunberg, then a political
adviser to Trump’s campaign, tried to arrange a sit-down between his boss
and Leo. “I told Leonard, ‘Mr. Trump is a conservative now on these issues,
and you’re not going to believe how good he is going to be for you,’ ” Nunberg
recalls. “He sat there like regular D.C. and listened, and who the hell knows
what he said after I left. He probably said, ‘Gee, I feel bad for that kid.’ ” The
meeting between Trump and Leo never happened.
But by the time the Republican presidential primaries began in early 2016,
Leo’s thinking about Trump had evolved. Trump, by then, had established
himself as a plausible candidate, maybe even a front-runner. That March, Leo
was part of a small group of Washington Republicans, including Gingrich and
the Heritage Foundation president at the time, Jim DeMint, who met with
Trump for a lunch at the Jones Day law firm, where McGahn was a partner.
When the meal was over, Leo, McGahn and Trump broke off from the larger
group for a private meeting. Reaching into his suit-jacket pocket, Leo
presented Trump with a list of potential Supreme Court nominees that
McGahn had asked him to bring — a combination of federal judges and State
Supreme Court justices who Leo believed would be suitable successors to
Justice Antonin Scalia, who died the previous month.
“I was really hoping for 12,” Trump told him.
“Well, you’ve got eight,” Leo replied.
“Can’t we find more?” Trump asked.
“We can try,” Leo pledged.
Trump, Leo recalls, had a question about the State Supreme Court justices on
Leo’s list: Do they make “the final decision”? Leo explained that sometimes
they do and sometimes they don’t, depending on whether the issue before
them involves the United States Constitution. He asked why Trump wanted to
know. “Because when you have to make a final decision, and it is the real final
decision, you own it,” Trump explained. “And like a businessman, when you
own something that you do, you take it very seriously, and it has
consequences.”
.
“It was an interesting insight that I hadn’t really thought of,” Leo told me. We
were sitting at Morton’s, the venerable Washington steakhouse, where Leo, an
owlish man in his 50s who wears a pocket watch, keeps a wine locker. “It was,
I think, the best conversation I have ever had in my professional life with a
Republican presidential candidate on the issue of judges,” he marveled.
It’s hard to take that claim at face value. In 2016 alone, Leo discussed judges
with Jeb Bush — who, as governor of Florida, appointed more than 100 of
them — and Ted Cruz, who clerked for Chief Justice William H. Rehnquist,
argued nine cases in front of the Supreme Court and himself is a member of
the Federalist Society. A mere two weeks after Trump shared his insights
about the judiciary with Leo, he told an interviewer that he planned to appoint
Supreme Court justices who “would look very seriously at her” — Hillary
Clinton’s — “email disaster.” A few months after that, Trump promised a
group of congressional Republicans that he would protect “Article XII” of the
Constitution — an article that doesn’t exist.
Trump might not have known much about the law, but he needed, as Gingrich
told me, to create the impression that he “would be reliable in terms of
Appellate Judgeships Confirmed During First
Congressional Term. Ronald Reagan, 19; George Bush,
18; Bill Clinton, 18; George W. Bush, 16; Barack
Obama, 15; Donald Trump, 24
conservative judges, because that would calm down and consolidate a very
large bloc of his coalition.” That is, what mattered to the Federalist Society —
and the Heritage Foundation — was that Trump take their advice on judicial
nominees. In an interview with Breitbart in June 2016, Trump pledged,
“We’re going to have great judges, conservative, all picked by Federalist
Society.”
Leo also figured out what mattered to Trump. “Leonard is smart,” says David
Lat, the founding editor of the influential legal website Above the Law and a
former Federalist Society member. “He knows the way to Trump’s heart is
through his ego.” And perhaps his pocketbook. In May, McClatchy reported
that a mysterious $1 million donation to Trump’s inaugural committee in
December 2016 — made by a company called BH Group L.L.C. that was
apparently formed to hide the source of the donation — was tied to Leo.
(When I asked him about the McClatchy report, Leo declined to comment.)
“Leonard had an instinct,” Gingrich says, “that this could be the great
opportunity to redevelop conservatism on the courts.”
The Federalist Society was founded in 1982 by a small cadre of conservative
law students at Yale and the University of Chicago. Its first faculty advisers
were Robert H. Bork at Yale and Antonin Scalia at Chicago. The group quickly
spread to other campuses, and within a few years it had received an infusion of
cash from conservative donors, including the Koch brothers. Ever since then,
if you were a law student with conservative leanings, it was more than likely
you became a Federalist Society member and were absorbed into a sprawling
network of law school chapters, practice groups, publications and seminars
that could nurture you for your entire career. Today, the Federalist Society
boasts more than 70,000 members.
For most of the organization’s first three decades, its dominant philosophical
emphasis was on judicial restraint: the idea that judges shouldn’t overrule
majority-passed, democratically enacted laws — that they shouldn’t, as
Amanda Hollis-Brusky, a Pomona College professor and the author of the
2015 book “Ideas With Consequences: The Federalist Society and the
Conservative Counterrevolution,” puts it, “move the law too far, too fast.” This
philosophy emerged largely as a reaction to liberal rulings by the Warren and
Burger courts — as well as those of lower-court judges — who, conservatives
complained, tried to “legislate from the bench” on civil rights and civil
liberties. But within the Federalist Society and the larger conservative legal
movement, there was an emerging faction that favored a more aggressive
approach. These libertarian legal theorists, led by the Georgetown law
professor Randy Barnett, subscribed to the judicial philosophies of originalism
and textualism, which hold that judges should interpret the Constitution
according to the meaning of its plain text, instead of its intent or purpose, and,
more important, should not hesitate to overturn any law that deviates from
that text.
Originalists and textualists gave intellectual and theoretical ballast to this
approach in the academy. But they didn’t achieve critical mass in the larger
conservative legal movement until 2012, when the Supreme Court upheld the
Affordable Care Act, with Chief Justice John G. Roberts Jr. writing the
majority opinion. “Conservatives were so disappointed they had to stop and
think, How did this happen?” says Barnett, who helped mount the challenge to
the constitutionality of Obamacare by invoking the commerce clause. “And
how did it happen at the hands of a chief justice who was a Bush appointee
and who had been signed off on by the Federalist Society?” The conservative
legal movement’s long-held devotion to judicial restraint began to founder.
“Now the situation has reversed itself,” Barnett told me. “The originalism side,
and invalidating laws if they’re unconstitutional, has the upper hand.”
Critics of the Federalist Society contend that the group actually favors judicial
activism: Judges who will take a stance on social issues, particularly on
abortion. Many of the group’s members question the legal basis for Roe v.
Wade and whether a right to privacy exists in the Constitution, as Roe held it
does. Leo was hailed by the conservative legal activist and writer Ed Whelan in
National Review in 2016 for being “more dedicated to the enterprise of
building a Supreme Court that will overturn Roe v. Wade” than anyone else in
the United States. Yet Leo accuses Democrats of “scare tactics” when they
charge that Trump seeks to appoint judges who will outlaw abortion.
Similarly, Trump, who at one point during the 2016 campaign pledged that
Roe would be overturned because he would put “pro-life justices on the court,”
maintains that he did not bring up the topic of abortion in his interviews with
Brett Kavanaugh.
The Federalist Society — and the Trump administration — are more forthright
about the ways in which they hope originalism and textualism may apply to
other arenas, particularly government regulation. “The greatest threat to the
rule of law in our modern society is the ever-expanding regulatory state,”
McGahn declared in his November speech to the Federalist Society, “and the
most effective bulwark against that threat is a strong judiciary.” He added,
“Regulatory reform and judicial selection are so deeply connected.” This idea
is now at the heart of the Federalist Society, whose members believe that
federal agencies have become an unaccountable “fourth branch” of
government — and that their bureaucrats, oftentimes experts in their fields,
should no longer be shown any deference by the courts in how they apply laws
enacted by Congress, but should instead be restrained from doing anything
beyond what the law, as Congress wrote it, stipulates. The originalists and
textualists now favored by the Federalist Society and the Trump
administration are decidedly disinclined to defer to executive-branch agencies,
whether it’s the Environmental Protection Agency or the Food and Drug
Administration or the Occupational Safety and Health Administration, when it
comes to interpreting arguably (and often necessarily) ambiguous statutes
about the environment or public health or workplace safety. Unless Congress
explicitly mandates it, originalists and textualists believe, agencies can’t do it.
Gorsuch is said to have risen to the top of Trump’s Supreme Court list in large
part because of a 2016 concurring opinion he wrote as a judge on the United
States Court of Appeals for the 10th Circuit, in which he forcefully attacked
what’s known as “Chevron deference” — a term that stems from a 1984
Supreme Court case, Chevron U.S.A. Inc. v. Natural Resources Defense
Council Inc., that instructed courts to grant policymaking flexibility to
government agencies. Similarly, Don Willett, whom Trump appointed to the
United States Court of Appeals for the Fifth Circuit and who is on the
president’s Supreme Court list, became a Federalist Society favorite largely
because of a 2015 concurring opinion he wrote as a justice on the Texas
Supreme Court. In Patel v. Texas Department of Licensing and Regulation,
Willett struck down a state licensing requirement that mandated 750 hours of
training for eyebrow threaders, denouncing what he described as a
“nonsensical government encroachment” on “occupational freedom” and
economic liberty. And when the White House rolled out Kavanaugh’s
nomination to the Supreme Court in early July, it circulated a memo to
business groups that, according to Politico, praised the 75 times Kavanaugh,
as a Court of Appeals judge, overruled federal regulators on cases involving
issues like clean air, consumer protection and net neutrality in order to protect
“American businesses from illegal job-killing regulation.” “The Federalist
Society has embraced judicial activism,” Hollis-Brusky says. “They’re just
calling it a different name.”
The ascendant wing of the Federalist Society has, according to critics,
effectively managed to change how Washington operates, by shifting power
away from the executive and legislative branches and toward the courts. It also
represents something of a long-term strategy by the Republican Party. “By
appointing judges who’ll narrowly interpret congressional regulations and
statutes,” Hollis-Brusky says, “you’re gambling that you won’t be in power
politically but that your judges will be on the bench and take a more active role
in shaping laws over the next 30 years.”
The appellate courts are especially important in this effort. Although the
Supreme Court is the highest court in the land, its caseload, which was not
huge to begin with, has become even smaller in recent years — declining from
about 150 cases a term in 1980 to just 79 in the term that ended in June. The
appeals courts, by contrast, collectively hear and decide thousands of cases
each year. “The Courts of Appeals are the regional Supreme Courts of the
nation,” says Sheldon Goldman, a University of Massachusetts at Amherst
professor and a scholar of the American judiciary, “and are of greater
importance, in many respects, than the Supreme Court.” Nan Aron, the
president of the liberal judicial group Alliance for Justice, says liberals don’t
always recognize the centrality of the appeals courts. “They’re making the law
of the land in critically important areas,” she says. “It’s something that’s not
lost on the Republicans. That’s why they have their eyes on the prize.”
And never have they been as focused as they have been under Trump, who,
according to Randy Barnett, “has made as good a selection of judges as any
Republican president in my lifetime.” Even Leo, who has enjoyed unrivaled
influence for more than two decades, seems impressed by his — and the
conservative legal movement’s — good fortunes in the Trump era. “This
administration,” he said that afternoon at Morton’s, “is trying to hit as many
triples and home runs as possible.”
When Trump Took office, he inherited not just an open Supreme Court seat
but 107 additional judicial vacancies. Ronald Reagan, by contrast, had 35
unfilled judgeships; Obama had 54. “There’s a million qualified conservative
lawyers out there,” says J.Scott Jennings, a Republican strategist close to
Senator Mitch McConnell, the majority leader. “The hard part was securing
the vacancies and actually having a place to put them all. That was the spade
work done by Mitch McConnell in the Obama years.”
From the moment Obama entered the White House, McConnell led Senate
Republicans in a disciplined, sustained, at times underhanded campaign to
deny the Democratic president the opportunity to appoint federal judges.
McConnell’s first move came six weeks after Obama’s inauguration, in the
form of a letter, signed by all 41 Republican senators, which warned the new
president that if he did not consult with — and, more crucial, receive the
approval of — home-state senators for his judicial nominees, then the
Republicans would filibuster, insisting on 60 votes to end debate. “They were
very clear from the beginning that they were going to make this as difficult and
as partisan as possible,” says Christopher Kang, who worked on judicial
nominations in the Obama White House Counsel’s Office.
Republican approval would be conveyed by one of the Senate’s many
cherished procedural instruments known as a “blue slip.” The blue slip is
literally a slip of paper that a senator returns to the Judiciary Committee
signaling that a given nominee in his or her state should receive a hearing.
First introduced in 1917, the blue slip has been accorded varying weights by
different Judiciary Committee chairmen, but when Obama took office, the
committee’s chairman was Senator Patrick Leahy, a Vermont Democrat.
Leahy, a strong institutionalist and protector of the Senate’s prerogatives,
viewed the blue slip as something akin to a Holy Writ. If a home-state senator,
a Republican or a Democrat, did not want a judicial nominee to have a
hearing, Leahy would not schedule one — essentially putting a hold on the
nomination. In doing so, Leahy told me, he was giving “real meaning to ‘advise
and consent’ ” and ensuring that the Senate kept “its institutional
independence and didn’t become a rubber stamp.”
Even without Leahy’s strict blue-slip policy, Obama would probably still have
sought Republican approval for his judges. He was less interested in making
the judiciary more liberal than in making it more diverse. It was important,
Obama once told The New Yorker, for minorities “to see folks in robes that
look like them.” Surely, there were African-American, Latino, Asian, gay and
female judges with moderate records and temperaments whom Republican
senators could support. “We were in the business of picking judges,” says
Michael Zubrensky, a former Department of Justice official who worked on
judicial nominations in the Obama administration, “not picking fights.” The
fundamental battles Obama wanted to wage with Republicans involved
legislation, not a long game with the courts.
When Republican senators dragged out their consultations with the Obama
administration on judicial nominees, the Obama White House did not press
them; when a blue slip was finally returned and the Judiciary Committee held
a hearing and voted a nominee out of committee, Senate Democrats would
often take their time before scheduling a floor vote, which Republicans would
usually insist couldn’t be held until after the maximum 30 hours of debate.
“Judges at that time were sort of an afterthought,” recalls Brian Fallon, who
was then an aide to Senator Chuck Schumer of New York. “It was viewed as
something you got around to scheduling when you were in between big pieces
of legislation and you needed some filler on the floor.”
The combination of Republican intransigence — “You had all of these
nominees piling up on the calendar,” Kang says, “because Republicans felt any
day without an Obama judge in place was a better day for them” — and
Democratic dawdling meant that even though Democrats enjoyed a Senate
majority, Obama, several months into his second term, had more than 60
unfilled judicial vacancies that lacked even a nominee. “In retrospect, I think
we all didn’t react with enough alarm when it was happening,” Fallon says.
“We indulged it for far too long in the Obama years, and now our chickens are
coming home to roost.”
The issue came to a head in the fall of 2013 over three vacancies in particular
— all of them on the United States Court of Appeals for the District of
Columbia Circuit. Senate Republicans had been unable to prevent the
nominees from receiving a hearing, because there were no home-state
senators to withhold blue slips. But when the Senate’s majority leader at the
time, Harry Reid, brought each of the three nominees to the floor, Republican
senators, who by then numbered 45, refused to give them a vote. The
Republicans didn’t object to the nominees themselves; all three were
considered moderate and eminently qualified. Rather, the Republicans argued
that the District of Columbia Circuit’s caseload was so meager that the
judgeships should be eliminated. Reid decided to invoke what was known as
the “nuclear option,” doing away with filibusters for most nominations by
presidents, including those to the lower courts.
With the filibuster for lower-court judicial nominations eliminated, Obama
was able to score more than 100 judicial confirmations in just over a year.
Then and now, Republicans denounced Reid’s triggering of the nuclear option.
“You’ll regret this,” Mitch McConnell warned in 2013, “and you may regret
this a lot sooner than you think.” But with Leahy leading the Judiciary
Committee, Republican senators, even without the filibuster, still maintained
some leverage — and whenever possible, they used their blue slips to bottle up
Obama’s judicial nominations. Saxby Chambliss and Johnny Isakson, both
Georgia Republicans, held up Jill Pryor’s nomination to the United States
Court of Appeals for the 11th Circuit for two years, finally returning their blue
slips only after Obama agreed to nominate one of their picks to another 11th
Circuit vacancy and three of their picks to district court judgeships. Democrats
might have played hardball with the nuclear option, but they still shrank from
a fight, either because they agreed with Leahy that the blue slip was an
important procedural safeguard or because they didn’t have the stomach to
pressure him to change his stance.
Republicans weren’t as squeamish. After taking back the Senate in the 2014
midterm elections, McConnell, now the majority leader, began a near blockade
of Obama’s judicial appointments. In Reagan’s final two years in office, 66 of
his district court and 15 of his appeals court nominees were confirmed. Clinton
managed 57 and 13 in his last two years. George W. Bush had 58 and 10. In
Obama’s final two years, 18 of his district nominees and just one of his
appellate court nominees were confirmed — the lowest number since Harry
Truman was president.
One of the earliest, and ultimately most prolonged, battles in McConnell’s fight
for Republican control of the judiciary began when a routine vacancy opened
up on the United States Court of Appeals for the Seventh Circuit in Wisconsin
in 2010. Wisconsin had long been considered a model of bipartisanship in
filling vacancies in the federal judiciary. In 1979, the state’s senators, William
Proxmire and Gaylord Nelson, established a commission to depoliticize the
judicial-selection process. Known as Wisconsin’s Federal Nominating
Commission, it was composed of 11 legal experts — some appointed by the
senators, others by the state bar — and led by the dean of the law school at
either Marquette or the University of Wisconsin. It solicited applications,
vetted candidates and ultimately came up with a list of four to six individuals
that the senators would review and forward to the White House for
consideration.
Although Proxmire and Nelson were both Democrats and a Democrat was
president when the commission was created, the process also worked in times
of divided government. In 2003, when Senate Democrats and George W. Bush
were battling over his judicial nominees, Wisconsin’s two Democratic
senators, Herb Kohl and Russell Feingold, both supported Diane Sykes, Bush’s
choice for a Seventh Circuit seat. “There are a number of topics on which we
do not see eye to eye,” Feingold said in introducing Sykes at her Judiciary
Committee hearing, but her “nomination is the result of a collaborative
bipartisan process.” (Today, Sykes is on Trump’s list of Supreme Court
candidates.)
To fill the Seventh Circuit vacancy in 2010, the commission recommended six
candidates to replace Terence Evans, who was taking senior status. Kohl and
Feingold forwarded the names to Obama for consideration. In July, Obama
nominated Victoria Nourse, a University of Wisconsin law professor and
former Senate Judiciary Committee staff member for Joe Biden. She was a
fairly typical Obama nominee, in that she was a woman (42 percent of
Obama’s judges were women, the highest percentage of any president) and a
moderate (besides working for Biden, Nourse worked on the Judiciary
Committee with Orrin Hatch, a Utah Republican). She was also typical in that
the Obama administration and Senate Democrats didn’t seem to afford her
nomination much urgency. At the end of 2010, Nourse still had not been
scheduled for a confirmation hearing.
This would prove to be a problem when, in November of that year, Feingold
lost his re-election campaign to Ron Johnson, a Republican businessman and
Tea Party candidate. Although Feingold had returned his blue slip for Nourse,
as well as for a nominee to a district court, Johnson, upon joining the Senate,
essentially took them back. In Wisconsin, legal experts chalked up Johnson’s
move to inexperience. “Everybody just assumed that once he got up to speed,
he would see these were quality nominees and would support them,” says
Michelle Behnke, a former state bar president who served on the commission.
But Johnson was simply adhering to the Washington Republican playbook,
outlined by McConnell in his original letter about judges to Obama two years
earlier. Nourse says she repeatedly sought a meeting with Johnson so he could
review her credentials, but he rebuffed her entreaties and refused to return her
blue slip. In early 2012, after 18 months of waiting, Nourse withdrew her
nomination. Johnson, meanwhile, said he wanted Wisconsin to come up with
a new system for recommending judges, but he and Kohl couldn’t agree on
what it would look like. The Obama administration declined to nominate
anyone until they could.
In 2012, Representative Tammy Baldwin, a Democrat, was elected to succeed
Kohl in the Senate. One of her first acts was to meet with Johnson to start
filling Wisconsin’s judicial vacancies. Johnson insisted on a new nominating
commission with a different structure. No longer would the state bar or the
state’s law school deans participate, nor would a senator whose party was in
the White House be able to appoint more members. Instead, the commission
would consist of six members, three appointed by each senator. Under the
commission’s new rules, a judicial candidate needed five votes to be
recommended for a judgeship; the commission was required to recommend
four to six candidates. Baldwin agreed to Johnson’s stipulations, and in April
2013, the commission was formed.
The commission began soliciting applications for the Court of Appeals for the
Seventh Circuit seat in 2014, which by then had been vacant for more than
four years. By the end of 2014, the commission had reviewed numerous
applications for the position and interviewed eight candidates, but only two, a
Madison lawyer named Don Schott and a Milwaukee Circuit Court judge
named Rick Sankovitz, received the requisite five votes. Months later, when
the commission was still at an impasse, Baldwin sent the White House the
names of the eight candidates interviewed. Johnson and his commissioners
cried foul. “In our view, there’s no sense in which they were finalists,” says
Rick Esenberg, one of Johnson’s commissioners.
Rather than take advantage of the deadlock to nominate a “finalist” of whom
the commission’s Republican members disapproved, the Obama
administration sought to defuse tensions and quickly settled on Schott, one of
two candidates who had received five votes, as its likely nominee. In late July
2015, the White House initiated Schott’s F.B.I. background investigation and
American Bar Association evaluation, which were concluded by early
September. It stood to reason that Johnson would support Schott’s
nomination — after all, he had been recommended by the commission
Johnson established — but the White House wanted to make sure before it
went ahead with it. Johnson dragged his feet. First, according to a former
government official familiar with the process, Johnson asked to see Schott’s
F.B.I. file. “I don’t remember any other instance in which a Senate office made
that request” before a nomination was made, the official says. When the
Obama administration wouldn’t give Johnson Schott’s F.B.I. file, Johnson
insisted on interviewing Schott himself. But then he didn’t schedule an
interview. Finally, Schott flew to Washington in early November to meet with
Johnson. In January 2016, six years after the Seventh Circuit seat became
vacant, Johnson told the White House that Schott was acceptable, and Schott
was quickly nominated.
Then came another round of delays. First, Johnson didn’t return his blue slip
for Schott until March. Next, Charles E. Grassley, the Iowa Republican and
chairman of the Judiciary Committee, stalled on scheduling a confirmation
hearing. Finally, in May, Schott was given a hearing. Baldwin appeared to
introduce him and speak on his behalf to the committee. Johnson did not
attend. Although he had returned his blue slip, he refused to offer Schott any
support. “I have recommended the committee consider it,” Johnson explained.
“What I am not going to do is publicly go out and make any other statements
beyond that.” Nonetheless, in June, the Judiciary Committee voted 13 to 7 to
advance Schott’s nomination. By now, however, there were only five months
until the presidential election, and with McConnell already refusing to give
Merrick Garland a hearing for his Supreme Court nomination, it seemed
unlikely that he would schedule a floor vote for Schott. The White House and
Baldwin pressed him; Johnson did nothing. In November, when Trump was
elected and Johnson was re-elected, Schott still hadn’t been given a vote. His
nomination was dead.
Even before Trump was sworn in as president, Don McGahn, Leonard Leo and
other members of Trump’s transition team began vetting potential judicial
candidates to fill all the empty seats on the bench. Together with McConnell,
McGahn and transition officials devised a strategy to speed confirmations
through the Senate: Trump would prioritize appellate judges, rather than
district court ones, and initially fill vacancies from states with two Republican
senators or from states with Democratic senators that had been won by
Trump. Like George W. Bush, Trump wouldn’t allow the American Bar
Association to vet potential judges before they were nominated. But under the
new way of business, the Senate wouldn’t necessarily wait for the association
to complete its vetting before the nominees were given hearings. The Judiciary
Committee would also more regularly take the unusual step of holding
confirmation hearings for two appellate nominees at a time.
The most crucial procedural maneuver, however, involved the blue slip. When
Grassley became chairman of the Judiciary Committee in 2015 after
Republicans took back the Senate, he publicly indicated (in a column in The
Des Moines Register) and privately said (in a conversation with Leahy,
according to Leahy) that he would afford blue slips the same weight as his
Democratic predecessor. If both home-state senators didn’t return their blue
slips, the nominee wouldn’t receive a hearing. Sure enough, in Obama’s final
two years in the White House, Grassley denied hearings to four appellate court
and five district court nominees who didn’t receive blue slips. (A Grassley
spokesman maintains that the nominees didn’t receive hearings “solely”
because of unreturned blue slips.) Although this benefited Republicans, it was
viewed not as partisan but as principled; Grassley, in his sixth term and having
just turned 80, was, like Leahy, an avowed institutionalist.
Then, last November, 10 months into Trump’s presidency, Grassley took to the
Senate floor to announce that he had a new, more nuanced view of the blue
slip. While he would be “less likely” to grant a hearing to a district court
nominee who didn’t have support of their home-state senators, he would no
longer allow a home-state senator to “wield veto power” over appellate
nominees. “Circuit courts cover multiple states,” Grassley said. “There’s less
reason to defer to the views of a single state’s senator for such nominees.”
Grassley’s decision to disregard blue slips worries Leahy, who contends that it
eviscerates the Senate’s “advise and consent” role. If a home-state senator can
no longer put a hold on a nominee for an appellate judgeship, what’s to stop a
president from nominating a judge who isn’t even from that state? “Depending
on who’s in the majority and who’s president,” Leahy told me, “they might
decide, ‘We’ve got to make this Texas court a little bit different, so we have this
New Yorker who’d make a good judge down there,’ and nominate them and
get them confirmed.” As to whether he regrets adhering to that principle,
Leahy said: “The only regret I have is that the Republicans haven’t stuck to the
position they claimed was the right position when there was a Democratic
president. I’m old-school. I believe in senators sticking to their commitments.”
Grassley maintains that he still takes the Senate’s advise-and-consent role
seriously. “My blue-slip policy is consistent with its traditional application as a
way of promoting consultation with home-state senators,” he told me in a
statement. “I find it a bit ironic that the same senators who opted to change
the Senate’s filibuster rule in 2013 to silence the voices of 41 senators are now
calling for the ability of a single senator to obstruct the Senate’s mere
consideration of judicial nominees.” According to a Republican Judiciary
Committee aide, Grassley has required that McGahn show him consultation
logs — a ticktock of every communication the White House Counsel’s Office
has with home-state senators about judicial nominations — to be assured that
there’s meaningful home-state consultation. But as Senate Democrats note,
“meaningful consultation” is in the eye of the beholder. “We’ve never relied on
a chairman’s view of whether a senator was consulted before,” one Democratic
aide says. “It was up to the senator about whether they were consulted.”
Democrats charge that Grassley is not really concerned about the opinions of
home-state senators. “If it’s what Donald Trump wants, they’re going to go
along with it,” Leahy says. “That seems to be the standard.”
While Grassley and the White House have sought the input of some
Democratic senators on judicial nominations from their states — notably those
in the Democratic leadership, like Chuck Schumer, Richard Durbin and
Dianne Feinstein, the ranking Democrat on the Judiciary Committee — they
have, more often than not, steamrolled the rest of them.
When Senator Al Franken of Minnesota announced in September that he
wouldn’t return his blue slip for David Stras, Trump’s first choice for a seat on
the Court of Appeals for the Eighth Circuit, McGahn informed him that Stras
would be nominated anyway. Then Grassley held a hearing for Stras, clearing
the way for his confirmation. (Stras was confirmed in January, after Franken
resigned; Franken’s successor, Tina Smith, voted against him.)
Similarly, Oregon’s Democratic senators, Jeff Merkley and Ron Wyden, both
refused to return their blue slips for Ryan Bounds, Trump’s nominee for a
judgeship on the Court of Appeals for the Ninth Circuit. Bounds had concealed
newspaper columns he wrote as a Stanford undergraduate in the 1990s, in
which he railed against “race-focused groups” on campus and likened the
university’s multicultural efforts to Nazi Germany. Nonetheless, Bounds
received a Judiciary Committee hearing in June and was voted out of
committee on an 11-to-10 party-line vote. His nomination was withdrawn
minutes before a floor vote, when Senator Tim Scott of South Carolina, the
only African-American Republican in the Senate, announced that he wouldn’t
vote for Bounds on account of those columns.
During the transition, Trump’s advisers turned their attention to Wisconsin’s
Court of Appeals for the Seventh Circuit vacancy. Leonard Leo and several
others recommended Mike Brennan for the spot. A Milwaukee lawyer and a
founding member of that city’s Federalist Society chapter, Brennan had been
the chairman of an advisory committee that helped Gov. Scott Walker select
his own state-level judges, many of whom had won plaudits from
conservatives. In March 2017, seven weeks into Trump’s presidency, the White
House Counsel’s Office interviewed Brennan for the appellate judgeship. This
was somewhat awkward, because Johnson and Baldwin had intended to use
their beleaguered commission to help fill the vacancy. Johnson prevailed upon
the White House to hold off on making a nomination until the commission
could review candidates, and in April it began accepting applications.
Brennan applied. So, surprisingly, did Schott. According to those familiar with
the commission’s deliberations, which are confidential, Schott initially
received the same five votes he did two years earlier, but when the Republican
commissioners realized that Brennan had fallen short of the required five
votes — receiving just four — two commissioners changed their votes, and
Schott finished with just three. If in 2014 the commission was able to give
Johnson and Baldwin only two names, this time it came up with zero. In June,
Schott was invited to Washington to interview with the White House Counsel’s
Office. Five weeks later, Trump nominated Brennan for the vacancy.
Johnson hailed the move, but Baldwin cried foul, noting that the commission
hadn’t recommended any candidates for the Seventh Circuit, nor did she
believe that she had been sufficiently consulted by the White House Counsel’s
Office about Brennan. She said she wouldn’t return her blue slip. But under
Grassley’s new blue-slip policy, that didn’t matter. In January, the Judiciary
Committee held a confirmation hearing for Brennan. Two weeks later, the
committee approved Brennan’s nomination 11 to 10 on a party-line vote. And
in May, Brennan’s nomination came before the full Senate, which approved it
49 to 46. After 3,044 days of sitting vacant, Terence Evans’s Seventh Circuit
seat was finally filled.
It remains difficult to parse Trump’s own legal views. In the wake of Antonin
Scalia’s death during the Republican presidential primaries, he apparently
became close with Scalia’s widow, and he now views the Supreme Court justice
as a judicial role model. Perhaps in Scalia, Trump saw something of himself: a
Queens kid who likes to mix it up. “Whether or not he gets every nuance of
textualism and originalism,” says one Republican lawyer who has been
involved in the Trump administration’s judicial-selection process, “he gets
that Scalia was courageous. He probably liked that Scalia was pugilistic in
public.”
Leo, McGahn and others have done a remarkable job of persuading the
president that their intellectual judicial philosophy of originalism and
textualism is in perfect sync with his visceral preferences that judges be
“courageous” and “not weak.” It’s easy to see how, in Trump’s mind, declaring
war on “the administrative state” might dovetail neatly with his desire to go
after the “deep state.” “A lot of the things that make Trump so loathsome as a
person and a politician,” David Lat notes, “are why he’s been nominating
judges who are such great conservatives.”
So far, Trump appears to be pleased with the decisions of the judges he has
appointed. In June, after the Supreme Court decided 5 to 4, with Gorsuch in
the majority, that the president does have the authority to ban travelers from
certain majority-Muslim countries, reversing two lower-court rulings, Trump
tweeted: “SUPREME COURT UPHOLDS TRUMP TRAVEL BAN. Wow!”
Yet despite Trump’s record on judicial appointments, some in the conservative
legal movement remain uneasy. “He’s been great, and everything’s good,” one
prominent conservative legal activist says, “but what happens if the Senate
goes 50-50? What happens if Don McGahn gets replaced by Judge
Napolitano?” Or what happens when an originalist judge does something that
goes against Trump? When Neil Gorsuch was awaiting confirmation to the
Supreme Court, he told a Democratic senator that Trump’s attacks on the
federal judge who temporarily blocked his travel ban were “demoralizing.”
According to The Washington Post, Trump contemplated withdrawing his
nomination because Gorsuch was not “loyal.” But after reading Gorsuch’s note
thanking him for the nomination — “Your address to Congress was
magnificent,” Gorsuch wrote — he decided to stay the course.
For the moment, Trump may believe that originalism and textualism cut in his
favor, but there is no guarantee this will always be the case. While a president
with an intellectual commitment to originalism and textualism would most
likely be philosophical about a ruling from a like-minded judge that runs
counter to his political or personal interests, this doesn’t describe Trump. He
would almost certainly interpret such a ruling as evidence of a judge’s
“cowardice” and “weakness.” Yet Trump can’t simply fire the offending judge
the way he fires a secretary of state; these are lifetime appointments and thus,
unlike so many others whom Trump has ushered into power, judges are
protected from his capriciousness. Earlier this year, McConnell, looking back
on Trump’s achievements in 2017, noted that the tax bill was “hugely
important,” but added that once Democrats took back control of the White
House or Congress, they would revisit the tax code. By contrast, he said, “the
thing that will last the longest is the courts” — whether Trump ultimately
wants them to or not.
Correction: August 28, 2018
An earlier version of this article failed to attribute a characterization of the political
leanings of several United States Courts of Appeals. It is President Trump’s supporters
in the conservative legal movement who believe that the Sixth, Seventh and Eighth
Circuit Courts were “liberal” prior to recent appointments.
Jason Zengerle is a contributing writer for the magazine and the political correspondent
for GQ. He last wrote about Devin Nunes, the chairman of the House Intelligence
Committee.
A version of this article appears in print on Aug. 25, 2018, on Page 30 of the Sunday
Magazine with the headline: Bench Warfare.
How Conservatives Weaponized the
First Amendment
Image
Trump supporters signing a poster promoting free speech at a rally in 2017 in Berkeley,
Calif.CreditJim Wilson/The New York Times
Adam Liptak, The New York Times Online, June 30, 2018.
WASHINGTON — On the final day of the Supreme Court term last week,
Justice Elena Kagan sounded an alarm.
The court’s five conservative members, citing the First Amendment, had
just dealt public unions a devastating blow. The day before, the same majority
had used the First Amendment to reject a California lawrequiring religiously
oriented “crisis pregnancy centers” to provide women with information about
abortion.
Conservatives, said Justice Kagan, who is part of the court’s four-member
liberal wing, were “weaponizing the First Amendment.”
The two decisions were the latest in a stunning run of victories for a
conservative agenda that has increasingly been built on the foundation of free
speech. Conservative groups, borrowing and building on arguments developed
by liberals, have used the First Amendment to justify unlimited campaign
spending, discrimination against gay couples and attacks on the regulation of
tobacco, pharmaceuticals and guns.
“The right, which had for years been hostile to and very nervous about a
strong First Amendment, has rediscovered it,” said Burt Neuborne, a law
professor at New York University.
The Citizens United campaign finance case, for instance, was decided on freespeech
grounds, with the five-justice conservative majority ruling that the
First Amendment protects unlimited campaign spending by corporations. The
government, the majority said, has no business regulating political speech.
The dissenters responded that the First Amendment did not require allowing
corporate money to flood the political marketplace and corrupt democracy.
“The libertarian position has become dominant on the right on First
Amendment issues,” said Ilya Shapiro, a lawyer with the Cato Institute. “It
simply means that we should be skeptical of government attempts to regulate
speech. That used to be an uncontroversial and nonideological point. What’s
now being called the libertarian position on speech was in the 1960s the liberal
position on speech.”
And an increasingly conservative judiciary has been more than a little
receptive to this argument. A new analysis prepared for The New York Times
found that the Supreme Court under Chief Justice John G. Roberts Jr. has
been far more likely to embrace free-speech arguments concerning
conservative speech than liberal speech. That is a sharp break from earlier
eras.
As a result, liberals who once championed expansive First Amendment rights
are now uneasy about them.
“The left was once not just on board but leading in supporting the broadest
First Amendment protections,” said Floyd Abrams, a prominent First
Amendment lawyer and a supporter of broad free-speech rights. “Now the
progressive community is at least skeptical and sometimes distraught at the
level of First Amendment protection which is being afforded in cases brought
by litigants on the right.”
Many on the left have traded an absolutist commitment to free speech for one
sensitive to the harms it can inflict.
Take pornography and street protests. Liberals were once largely united in
fighting to protect sexually explicit materials from government censorship.
Now many on the left see pornography as an assault on women’s rights.
In 1977, many liberals supported the right of the American Nazi Party to
march among Holocaust survivors in Skokie, Ill. Far fewer supported the freespeech
rights of the white nationalists who marched last year in
Charlottesville, Va.
There was a certain naïveté in how liberals used to approach free speech,
said Frederick Schauer, a law professor at the University of Virginia.
“Because so many free-speech claims of the 1950s and 1960s involved antiobscenity
claims, or civil rights and anti-Vietnam War protests, it was easy for
the left to sympathize with the speakers or believe that speech in general was
harmless,” he said. “But the claim that speech was harmless or causally inert
was never true, even if it has taken recent events to convince the left of that.
The question, then, is why the left ever believed otherwise.”
Some liberals now say that free speech disproportionately protects the
powerful and the status quo.
“When I was younger, I had more of the standard liberal view of civil
liberties,” said Louis Michael Seidman, a law professor at Georgetown. “And
I’ve gradually changed my mind about it. What I have come to see is that it’s a
mistake to think of free speech as an effective means to accomplish a more just
society.”
To the contrary, free speech reinforces and amplifies injustice, Catharine A.
MacKinnon, a law professor at the University of Michigan, wrote in “The Free
Speech Century,” a collection of essays to be published this year.
“Once a defense of the powerless, the First Amendment over the last hundred
years has mainly become a weapon of the powerful,” she wrote. “Legally, what
was, toward the beginning of the 20th century, a shield for radicals, artists and
activists, socialists and pacifists, the excluded and the dispossessed, has
become a sword for authoritarians, racists and misogynists, Nazis and
Klansmen, pornographers and corporations buying elections.”
Image
Judge Robert H. Bork in 1987. “Constitutional protection should be accorded only to
speech that is explicitly political,” he wrote in 1971 in a law-review article. “There is no
basis for judicial intervention to protect any other form of expression, be it scientific,
literary or that variety of expression we call obscene or pornographic.”CreditJose R.
Lopez/The New York Times
Changing Interpretations
In the great First Amendment cases in the middle of the 20th century, few
conservatives spoke up for the protection of political dissenters, including
communists and civil rights leaders, comedians using vulgar language on the
airwaves or artists exploring sexuality in novels and on film.
In 1971, Robert H. Bork, then a prominent conservative law professor and
later a federal judge and Supreme Court nominee, wrote that the First
Amendment should be interpreted narrowly in a law-review article that
remains one of the most-cited of all time.
“Constitutional protection should be accorded only to speech that is explicitly
political,” he wrote. “There is no basis for judicial intervention to protect any
other form of expression, be it scientific, literary or that variety of expression
we call obscene or pornographic.”
But a transformative ruling by the Supreme Court five years later began to
change that thinking. The case, a challenge to a state law that banned
advertising the prices of prescription drugs, was filed by Public Citizen, a
consumer rights group founded by Ralph Nader. The group argued that the
law hurt consumers, and helped persuade the court, in Virginia State Board of
Pharmacy v. Virginia Citizens Consumer Council, to protect advertising and
other commercial speech.
The only dissent in the decision came from Justice William H. Rehnquist, the
court’s most conservative member.
Kathleen M. Sullivan, a former dean of Stanford Law School, wrote that it did
not take long for corporations to see the opportunities presented by the
decision.
Conservatives in Charge, the Supreme Court
Moved Right
Justice Anthony M. Kennedy’s last Supreme Court term contained hints of his
retirement and foreshadowed a lasting rightward shift.
June 28, 2018
“While the case was litigated by consumer protection advocates,” she wrote in
the Harvard Law Review, “corporate speakers soon became the principal
beneficiaries of subsequent rulings that, for example, struck down restrictions
on including alcohol content on beer can labels, limitations on outdoor
tobacco advertising near schools and rules governing how compounded drugs
may be advertised.”
That trend has continued, with businesses mounting First Amendment
challenges to gun control laws, securities regulations, country-of-origin labels,
graphic cigarette warnings and limits on off-label drug marketing.
“I was a bit queasy about it because I had the sense that we were unleashing
something, but nowhere near what happened,” Mr. Nader said. “It was one of
the biggest boomerangs in judicial cases ever.”
“I couldn’t be Merlin,” he added. “We never thought the judiciary would be as
conservative or corporate. This was an expansion that was not preordained by
doctrine. It was preordained by the political philosophies of judges.”
Not all of the liberal scholars and lawyers who helped create modern First
Amendment law are disappointed. Martin Redish, a law professor at
Northwestern University, who wrote a seminal 1971 article proposing First
Amendment protection for commercial speech, said he was pleased with the
Roberts court’s decisions.
“Its most important contributions are in the commercial speech and corporate
speech areas,” he said. “It’s a workmanlike, common sense approach.”
Liberals also played a key role in creating modern campaign finance law
in Buckley v. Valeo, the 1976 decision that struck down limits on political
spending by individuals and was the basis for Citizens United, the 2010
decision that did away with similar limits for corporations and unions.
One plaintiff was Senator Eugene J. McCarthy, Democrat of Minnesota, who
had challenged President Lyndon B. Johnson in the 1968 presidential
primaries — from the left. Another was the American Civil Liberties Union’s
New York affiliate.
Professor Neuborne, a former A.C.L.U. lawyer, said he now regrets the role he
played in winning the case. “I signed the brief in Buckley,” he said. “I’m going
to spend long amounts of time in purgatory.”
To Professor Seidman, cases like these were part of what he describes as a
right-wing takeover of the First Amendment since the liberal victories in the
years Chief Justice Earl Warren led the Supreme Court.
“With the receding of Warren court liberalism, free-speech law took a sharp
right turn,” Professor Seidman wrote in a new article to be published in the
Columbia Law Review. “Instead of providing a shield for the powerless, the
First Amendment became a sword used by people at the apex of the American
hierarchy of power. Among its victims: proponents of campaign finance
reform, opponents of cigarette addiction, the L.B.G.T.Q. community, labor
unions, animal rights advocates, environmentalists, targets of hate speech and
abortion providers.”
The title of the article asked, “Can Free Speech Be Progressive?”
“The answer,” the article said, “is no.”
Shifting Right
The right turn has been even more pronounced under Chief Justice Roberts.
The Supreme Court has agreed to hear a larger share of First Amendment
cases concerning conservative speech than earlier courts had, according to the
study prepared for The Times. And it has ruled in favor of conservative speech
at a higher rate than liberal speech as compared to earlier courts.
The court’s docket reflects something new and distinctive about the Roberts
court, according to the study, which was conducted by Lee Epstein, a law
professor and political scientist at Washington University in St. Louis; Andrew
D. Martin, a political scientist at the University of Michigan and the dean of its
College of Literature, Science and the Arts; and Kevin Quinn, a political
scientist at the University of Michigan.
“The Roberts court — more than any modern court — has trained its sights on
speech promoting conservative values,” the study found. “Only the current
court has resolved a higher fraction of disputes challenging the suppression of
conservative rather than liberal expression.”
The court led by Chief Justice Earl Warren from 1953 to 1969 was almost
exclusively concerned with cases concerning liberal speech. Of its 60 freeexpression
cases, only five, or about 8 percent, challenged the suppression of
conservative speech.
The proportion of challenges to restrictions on conservative speech has
steadily increased. It rose to 22 percent in the court led by Chief Justice
Warren E. Burger from 1969 to 1986; to 42 percent in the court led by Chief
Justice William H. Rehnquist from 1986 to 2005; and to 65 percent in the
Roberts court.
The Roberts court does more than hear a larger proportion of cases
concerning conservative expression. It is also far more likely than earlier
courts to rule for conservative speech than for liberal speech. The result, the
study found, has been “a fundamental transformation of the court’s freeexpression
agenda.”
In past decades, broad coalitions of justices have often been receptive to First
Amendment arguments. The court has protected videos of animal
cruelty, hateful protests at military funerals, violent video games and lies
about military awards, often by lopsided margins.
But last week’s two First Amendment blockbusters were decided by 5-to-4
votes, with the conservatives in the majority ruling in favor of conservative
plaintiffs.
On Tuesday, Justice Clarence Thomas wrote for the majority that requiring
health clinics opposed to abortion to tell women how to obtain the procedure
violated the clinics’ free-speech rights. In dissent, Justice Stephen G. Breyer
said that was a misuse of First Amendment principles.
“Using the First Amendment to strike down economic and social laws that
legislatures long would have thought themselves free to enact will, for the
American public, obscure, not clarify, the true value of protecting freedom of
speech,” Justice Breyer wrote.
On Wednesday, in announcing the decision on public unions, Justice Samuel
A. Alito Jr. said the court was applying settled and neutral First Amendment
principles to protect workers from being forced to say things at odds with their
beliefs. He suggested that the decision on public unions should have been
unanimous.
“Compelling individuals to mouth support for views they find objectionable
violates that cardinal constitutional command, and in most contexts, any such
effort would be universally condemned,” he wrote. “Suppose, for example, that
the State of Illinois required all residents to sign a document expressing
support for a particular set of positions on controversial public issues — say,
the platform of one of the major political parties. No one, we trust, would
seriously argue that the First Amendment permits this.”
In response, Justice Kagan said the court’s conservatives had found a
dangerous tool, “turning the First Amendment into a sword.” The United
States, she said, should brace itself.
“Speech is everywhere — a part of every human activity (employment, health
care, securities trading, you name it),” she wrote. “For that reason, almost all
economic and regulatory policy affects or touches speech. So the majority’s
road runs long. And at every stop are black-robed rulers overriding citizens’
choices.”
A version of this article appears in print on July 1, 2018, on Page A1 of the New York
edition with the headline: How Free Speech Was Weaponized By Conservatives.
Inside the Christian legal
powerhouse that keeps winning
at the Supreme Court
By The Washington Post | Posted Online July 05, 2018
The Supreme Court in Washington is seen at sunset. (AP Photo/J. Scott Applewhite, File)
WASHINGTON - Two days before the announcement of Justice Anthony
Kennedy's retirement, a woman who stood to gain from it was on the steps
of the Supreme Court once again. Kristen Waggoner's blond bob was
perfectly styled with humidity-fighting paste she'd slicked onto it that
morning at the Trump hotel. Her 5-foot frame was heightened by a pair of
nude pumps, despite a months-old ankle fracture in need of surgery. On her
wrist was a silver bracelet she'd worn nonstop since Dec. 5, 2017, the day
she marched up these iconic steps, stood before the justices and argued
that a Christian baker could legally refuse to create a cake for a gay
couple's wedding.
Her job was to be the legal mind and public face of the Alliance Defending
Freedom, an Arizona-based Christian conservative legal nonprofit better
known as ADF. Though it is far from a household name, the results of ADF's
work are well known. Masterpiece Cakeshop v. Colorado Civil Rights
Commission was just one of ADF's cases at the Supreme Court this term.
The organization has had nine successful cases before the court in the past
seven years, including Burwell v. Hobby Lobby, which allowed corporations
to opt out of covering contraceptives based on religious beliefs. And it was
ADF that created model legislation for "bathroom bills," which bar students
from using restrooms that don't correlate to their sex at birth.
Supreme Court Associate Justice Anthony Kennedy testifies on Capitol Hill in Washington on March 23,
2015. Kennedy last month announced he'll be retiring in July. (AP Photo/Manuel Balce Ceneta, File)
Opponents say ADF is seeking to enshrine discrimination into law. But to its
supporters, ADF is fighting for the right of Christians to openly express their
faith - and winning.
Or as ADF's CEO, Michael Farris, put it: "We would say the combination of
hard work and God's blessing appears to be paying off."
With Donald Trump in the White House, a savvy media strategy boosting
donations, and a new Supreme Court justice on the way, ADF is poised to
become more influential than ever.
But first, Waggoner was about to find out whether the organization had a
chance of returning to the court for another high-profile battle. ADF's win in
Masterpiece was considered to be a narrow ruling. The justices avoided the
case's central question - whether the business owner had the right to
decline to make a creation for a same-sex wedding - but acknowledged it
would have to be answered someday, in some future case.
President Donald Trump speaks to the media regarding the announcement that Supreme Court Associate
Justice Anthony M. Kennedy will retire at the end of July, in the Oval Office of the White House in
Washington, June 27, 2018. (AP Photo/Pablo Martinez Monsivais)
If Waggoner has her way, that day will come soon, and the case will be one
of hers. ADF has four cases pending in the lower courts regarding Christian
business owners who will serve gay people but won't make custom
creations for same-sex weddings. On this morning in late June, the court
was going to decide the fate of one of them: Barronelle Stutzman, a florist
from Washington state.
Lower courts had ruled unanimously against her. Because the justices had
just ruled in Masterpiece, they were unlikely to take her case immediately.
Waggoner knew they could decline to touch it altogether. Or they could
order the Washington courts to give Stutzman a do-over - giving ADF a
clear path back to the Supreme Court.
Waggoner kept her eyes on her phone, where the SCOTUSblog website
was posting minute-by-minute updates about what was happening inside the
court. News cameras waited for her reaction. Her silver bracelet dangled on
her wrist. It was engraved with a line from the Bible's Book of Esther: "For
such a time as this." Nine Supreme Court cases in seven years and ADF
had won them all. She was hoping it was such a time that God would grant
them another.
Masterpiece Cakeshop owner Jack Phillips decorates a cake inside his store in Lakewood, Colo., March
10, 2014. (AP Photo/Brennan Linsley)
Legal work is a family endeavor
Seven months earlier, in a Washington D.C. hotel room, Waggoner's 15year-old
daughter, Grace, awoke in a panic. An alarm clock was going off,
and beside her, her mom was still asleep. With her father, brother and
grandparents, Grace had flown in from Arizona to be here for this morning,
the most important day in her mom's career. They all had to be at the
Supreme Court with the baker, Jack Phillips, in just a few hours. Grace
started shaking her mom awake.
"I had purposely set the alarm for 10 minutes early and I had a second
alarm set," Waggoner said, laughing as she told the story. "But it was very
sweet."
This work had long been a family affair for the 45-year-old attorney, who
grew up in Longview, Washington, as the daughter of a Christian school
superintendent. She credits her father with instilling the values and views
that populate the 121 active cases she oversees at ADF, where there are 63
lawyers operating on a budget of more than $50 million.
To describe these cases is to traffic in loaded language. ADF regularly sues
colleges for creating versions of "safe spaces" that it sees as First
Amendment violations. What some people call birth control, ADF calls
"abortion-inducing drugs" and argues that the government is forcing those
who oppose abortion to provide them. Allowing transgender students into
their chosen bathrooms is, to ADF, failing to protect the privacy of the
majority of students.
Activists rally at the Supreme Court as President Donald Trump prepares to choose a replacement for
Justice Anthony Kennedy, on Capitol Hill in Washington, June 28, 2018. (AP Photo/J. Scott Applewhite)
Asked whether she believes it is possible for a person to be transgender,
Waggoner said she believes "it is possible to be confused about your
gender." Waggoner answers all questions about her work, even on the most
contentious of issues, with a smile. Her colleagues say she is always,
always smiling. Her incessant pleasantness can come off as strategic, a
way of disarming those trying to paint her as cruel or intolerant. She says
joy is just the mark of a person of faith.
Critics point to LGBT-disparaging rhetoric from the man who helped found
ADF in the 1990s as proof of what the organization is really after. The
Southern Poverty Law Center classifies ADF as a "hate group," a claim ADF
has responded to by calling the SPLC a "radical leftist organization."
"Whether they are truly committed to religious freedom, or whether they are
using it as a way to package and sell their opposition to homosexuals and
abortion, I don't know," said the American Civil Liberties Union's David Cole,
who represented the gay couple in Masterpiece.
The justices of the U.S. Supreme Court gather for an official group portrait on June 1, 2017. (AP Photo/J.
Scott Applewhite, File)
Key question: what counts as expression?
Those at ADF believe their positions on same-sex marriage and abortion
should be irrelevant when it comes to the First Amendment. In court briefs,
press releases and interviews, they repeat mantras such as "Tolerance is a
two-way street" and "If we want freedom for ourselves, we must extend it to
others." In other words, it doesn't matter if you don't agree with the baker's
views. The government can't force him to express something that goes
against them.
But what counts as expression? When Waggoner stood before the justices
in December, they bombarded her with rapid-fire versions of this question. A
pre-made cake in the cooler? Not expression, Waggoner assured them. The
person who designs the invitations? That would be expression, she said.
How about the hairstylist? The menu designer? The jeweler? Her
answerscame just as fast: No. Yes. It depends.
"Who else then?" Justice Ruth Bader Ginsburg asked. "Say the person who
does floral arranging, who owns a floral shop?"
Thinking of Stutzman, Waggoner smiled. She was ready to answer the
question.
This undated photo provided by Alliance Defending Freedom shows Breanna Koski, left, and Joanna
Duka in Phoenix. An Arizona appeals court in June upheld a Phoenix anti-discrimination law that makes it
illegal for businesses like the women's wedding invitation business to refuse service to same-sex
couples because of religion. The ADF is representing them. (Alliance Defending Freedom via AP)
The florist herself was in the back of the courtroom. ADF had flown her in to
watch, a preview of what she might one day face. Stutzman and her
husband had spent hours waiting in line to get a seat inside, but ended up
sitting so far back, she couldn't make out what the justices were saying. She
tried to glean meaning from their body language instead.
Because of the baker's case, her own case had been put on hold. Again. It
had been five years since she had declined to make floral arrangements for
the wedding of her client Rob Ingersoll, since the attorney general of
Washington state had sued her and the shop she inherited from her mother,
Arlene's Flowers. Five years of hate mail, of vile phone calls, of going on TV
to say again and again: "I serve everybody who comes in my shop" and
"Because my faith teaches me that marriage is between a man and a
woman, that just wasn't something I could do for Rob."
Constantly putting Stutzman before the media is Waggoner's strategy, which
became ADF's strategy when she was put in charge of their legal division in
2014. Each big case - the printer who won't make shirts for a pride parade,
the teen girl who feels unsafe with "a man" in her school bathroom, the
pregnancy centers accused of misleading women - gets a mini-documentary
about their personal journeys and dedication to their faith.
Baker Jack Phillips, owner of Masterpiece Cakeshop, manages his shop Monday, June 4, 2018, in
Lakewood, Colo., after the U.S. Supreme Court ruled that he could refuse to make a wedding cake for a
same-sex couple because of his religious beliefs did not violate Colorado's anti-discrimination law. (AP
Photo/David Zalubowski)
"If we can't show their souls to people, their constitutional freedoms will
falter," Waggoner said. "We have to show what is at stake."
Supporters send cards, letters and Bibles
Come June, as Waggoner was on the steps of the Supreme Court,
Stutzman was waiting for the news of her case's future in her shop in
Washington state. She was sorting bills in her office. Her desk was filled
with cards, letters and Bibles sent from her supporters, her favorite of which
was from a youth group. She was always worrying whether the next
generation has what it takes to defend their faith.
Just after 6:30 a.m., her phone rang. She braced herself for the news.
"GVR," Waggoner shouted into her ear. "GVR!"
Stutzman knew what that meant: Grant, vacate, remand. The case was
coming back to Washington state. Her previous losses no longer mattered.
They still had a chance.
Supporters of baker Jack Phillips, owner of Masterpiece Cakeshop, hug inside Phillips' shop Monday,
June 4, 2018, in Lakewood, Colo., after the U.S. Supreme Court ruled that he could refuse to make a
wedding cake for a same-sex couple because his religious beliefs did not violate Colorado's antidiscrimination
law. (AP Photo/David Zalubowski)
"The videographer will be at the shop at 7:30," Waggoner said. They needed
to film a reaction video to send to reporters. Then would come a media call,
a few more interviews, a two-hour drive to Spokane so she could appear on
Fox News the next morning. An earnest plea for donations would appear on
the ADF website: "The threat to Barronelle's religious freedom is a threat to
your religious freedom."
The next morning, Waggoner was back on the Supreme Court steps to hold
a news conference celebrating ADF's second win of the term, NIFLA v.
Becerra, a case about California's mandate that religious pregnancy centers
notify women that the state provides free or low-cost access to abortions.
The next morning, Waggoner was back on the Supreme Court steps to hold
a news conference celebrating ADF's second win of the term, NIFLA v.
Becerra, a case about California's mandate that religious pregnancy centers
notify women that the state provides free or low-cost access to abortions.
She stepped up to the podium and read a line from the majority opinion,
written by Justice Kennedy.
"Government must not be allowed to force persons to express a message
contrary to their deepest convictions," she read. That line, she was sure,
was going to help Stutzman and so many of ADF's cases.
The next day, a great week got better. At the news of Kennedy's retirement,
Waggoner whooped, loudly, in the middle of the law office. ADF quickly put
out a press release: It looked forward to a justice who would uphold "the
original public meaning of the Constitution." That night, Waggoner and her
daughter went to dinner and a movie in celebration of a week - a year, really
- that had gone in their favor. Then, back in her room in the Trump hotel,
she returned to her work.
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