The Federalist Society—A Shadow Government

Nearly ninety percent of Trump’s judicial appointees are Federalist Society members. Current and former members include the Six Subversive Supremes.

Who is the Federalist Society? Are they legit? Yes, but so was Trump’s 2016 election win.

Launched in the 1980s, it was a pretty harmless collection of conservative law students who wanted a forum to safely discuss their views, tired of being outnumbered by progressives in the law schools. It morphed into a legal juggernaut that has shaped the judiciary over the last three decades.

When it comes to all matters judicial, the Federalist Society is a shadow government.

Democrat presidents still consult with the American Bar Association (ABA) for judicial nominee advice. Republican presidents have not listened to the ABA for decades, considering them a leftist arm of the Democrat Party.

Senator Sheldon Whitehouse of Rhode Island, speaking on the Senate floor, proffers that there are three Federalist Societies. The first is the harmless one formed in the early 80s. The second is a parent, “sort of a highbrow think tank seeking to further conservative and libertarian judicial principles,” and convening forums to pontificate. They issue newsletters, produce podcasts and policy recommendations — in short, a fairly typical think tank.

The third Federalist Society is the dangerous one, caring little for “judicial restraint, or originalism, or textualism.” They seek “to acquire control of the judiciary to benefit their interests.”

Whose interests might those be? Count them — Republicans, conservatives, libertarians, the wealthy and corporations.

The executive vice president of the Federalist Society, Leonard Leo, is the master puppeteer. CNN’s court watcher, Jeffrey Toobin, calls Leo, “Trump’s subcontractor.” Leo’s latest hat trick was providing the vetted names of Gorsuch, Kavanaugh and Barrett.

Sen. Whitehouse again: “The evidence is that the Federalist Society is funded by massive, secret contributions from corporate right-wing groups that have big agendas before the court. The method is an entity called Donors’ Trust (see footnote), whose sole purpose is to launder the identities of donors to other groups.”

Research has uncovered that the Koch Brothers are among the largest donors — what a surprise — joined by the Bradley family and Mercers* to pursue an anti-regulation, anti-union and anti-environment agenda. The Federalist Society facilitates that.

The Federalist Society is a 501 © (3) organization that as such has to stay out of politics. Its stepchild, the Judicial Crisis Network (JCN) is a 501 © (4), that can get involved in politics. Katy, bar the door. The Judicial Crisis Network spent $7 million to block Merrick Garland from getting a hearing following Obama’s nomination. It spent $10 million to support Gorsuch. One donor gave JCN $17.9 million. Take that feckless Federal Election Commission — $17.9 million! Please recall in my previous blog that Justice Roberts burst the campaign donation dam in Citizens United vs. FEC.

JCN then got $23 million from something called the Wellspring Committee, a Virginia-based entity with ties to — wait for it — Leonard Leo.

Who are these legal lions the Federalist Society are planting in our courts? One is Neomi Rao, now on the DC Circuit Court of Appeals. What has she done? First, she has never been a judge. She’s never tried a case. But she served as the Trump administration’s point person for tearing down federal regulations. Mr. Leo says, “We have a lifetime appointment waiting for you.”

Rao founded the Center for the Study of the Administrative State at George Mason University’s Antonin Scalia Law School — another secret group — which research revealed a Charles Koch Foundation donation of $30 million.

As with so many dark money organizations it is difficult to decipher the contributors and influencers, but safe to say that libertarian corporate America is at the table.

Also from Whitehouse’s Senate presentation, Jay Michaelson: writing for the Daily Beast: “Sometimes thought of as a legal association, the Federalist Society is actually a large right-wing network that grooms conservative law students still in law school, links them together, mentors them, finds them jobs, and eventually places them in courts or in government.”

The Federalist Society is a petri dish for training conservative law students and younger lawyers.

Once the Federalist Society elevates you to serve their agenda, they groom you, including teaching you how to lie under oath, knowing that you will be untouchable once on the court.

Republicans like to harp about liberals “grooming” children. Justices Gorsuch, Kavanaugh, and Barrett were “groomed” as adults.

The nominees, once groomed and vetted, are then coached on how to handle the confirmation hearings. (In fairness, coaches also advise Democrat nominees.) This coaching created these responses regarding Roe vs. Wade:

· Gorsuch: “That’s the law of the land. I accept the law of the land.”

· Kavanaugh: “It’s settled precedent of the Supreme Court.”

· Barrett: “Roe vs. Wade clearly held that the Constitution protected a women’s right to terminate a pregnancy.”

In these three confirmations, only Gorsuch and Kavanaugh lied under oath about Roe, based on their voting to overturn Roe. Barrett stated what the ruling stated but did not say she accepted it or that it was settled.

Let’s do the math on what the Federalist Society has shackled us with. Here are the six subversive’s ages and expected time left on the court:

Justice Thomas — 74–12–15 years

Justice Alito — 72–12–15 years

Justice Roberts — 67–20 years

Justice Gorsuch — 54–30 years

Justice Kavanaugh — 57–30 years

Justice Barrett — 50–35 years

Justice Kavanaugh, burdening us for another thirty years, deserves a special looksee under a microscope. Earlier financial questions remain unanswered. Who paid off Kavanaugh’s $200,000 credit card debt and ritzy country club fees of $92,000? There was also a loan against his retirement fund. In 2006, he bought a Chevy Chase, Maryland home for $1.225 million with a down payment of $245,000. At the time his financial disclosure form showed only $10,000 in the bank and his federal retirement account.

LA Times Washington-Based columnist, Jackie Calmes, pulls no punches. Her recent op-ed leads with: “Brett Kavanaugh is a serial liar.” She goes on to document how, making the case that of the current court, Kavanaugh is the least qualified, not because of credentials, but because of his character. He told Senator Collins: “I am a don’t-rock-the-boat kind of judge.” And, of course, Collins believed him. She is not gullible. The people of Maine are gullible. Besides the attack on Christine Blasey Ford, there were two reported sexual attacks at Yale. He denied ever being blackout drunk, though numerous Yate classmates attested to that, under oath. Republicans bottled all of up, while the FBI snoozed through their investigation. Calmes really digs into the grime of Kavanaugh’s prior bouts with the truth. And then she wrote this: “After Kavanaugh’s confirmation to the Supreme Court, Chief Justice John G. Roberts Jr. sent scores of ethics complaints about him from lawyers, law professors and others to an appeal court council for review. Most were about his alleged lying under oath. The council soon dismissed them as moot: ‘While the allegations were ‘serious,’ the council said, justices aren’t subject to judicial ethics rules.’”

For those who still hold stare decisis as legally relevant, Justice Kavanaugh says, “Hold my beer.” And given the fact that he is a beer-swigging frat boy, that would be painful for him.

Game, set, and match to the Federalist Society.

What should be apparent is that the true enemy of our democracy is corporate America and many very wealthy, conservative, libertarian individuals, now free (based on the Roberts’ court) to run rampant over our government and laws. They are the true shadow government, and though loosely organized, they divide and conquer. They are not a conspiracy, but they do conspire. I call them a conspiracy of like minds.

(See my earlier blog from last fall, Corpo-Pluto-Fascism)

Remember ALEC — American Legislative Exchange Council? It is a group of corporate lobbyists and state legislators secretly meeting to draft bills that often benefit the corporation’s bottom line at public expense. They boast that they have over 1,000 of these bills introduced throughout the country each year, with one in five being enacted. More than 98% of their money comes from corporations, corporate trade groups, and corporate foundations. Its donors and participants are Who’s Who List of U.S. corporations.

Rest assured corporations also wield massive influence in city and country governments, and their dark money is now reaching down to school boards and county election boards.

Many corporations hold their nose when supporting rulings favoring guns, churches and issues like abortion, same-sex marriage and LGBTQ rights, much like McConnell’s dislike of Trump. But he made a pack with the devil and used him to stack the courts. He also used Trump to get the tax cuts for corporations and the wealthy (McConnell became wealthy by marrying Elaine Chao). Trump was a means to an end, and worth mooning us over Merrick Garland’s nomination. It seems the bad guys are winning a lot these days.

Oh, and the corporations are fine with keeping people from voting — more votes for their droids, and more money, more money, more money for them.

They do not even care if more of us die from fouler air, more guns on the street, and unsafe abortions. Just give them more tax cuts, fewer government regulations, low minimum wages, and help them crush the unions. The Subversive Supremes say: “Hold my beer.”

I wish I believed in hell. It would comfort me to know where these corporate leaders, the dark money manipulators, and Trump, McConnell and their ilk, are going.

But wait, there’s more — this court is just getting started. Coming soon to the session beginning this October are cases involving race or elections of both, in Alabama, and the use of race as a factor in college admissions, just six years (pre-Gorsuch, Kavanaugh and Barrett) after the court reaffirmed its permissibility. You can kiss that one goodbye. There are cases on the intersection of LGBTQ and religious rights, and another major environmental case involving development and water pollution. Then there is whatever the Federalist Society chooses to walk up to the Supremes.

Perhaps most consequential to our democracy, they will hear the case of Moore v. Harper, the North Carolina Republicans’ appeal in a redistricting case that one observer wrote, “could have catastrophic consequences for voting rights and fair elections across the country next year in advance of the pivotal 2024 elections. In essence, ruling in favor of North Carolina Republicans could legalize the memo that John Eastman wrote whereby state legislatures could throw out the popular vote and put in their own handpicked electors to the Electoral College.

Dahlia LIthwick of Slate, calls the fact that the Supremes will take up a North Carolina case that gives state legislatures authority over federal elections, “bone chilling.”

Khiara Bridges, a professor at the University of California, Berkeley, law school wrote, “Whatever the Republican Party wants, the Republican Party is going to get out of the currently constituted court.”

But hey, if the Democrats can control the White House and Senate for the next decade, they can regain the majority, can’t they?

The chilling reality is that even if progressives keep the White House, House and Senate and pass progressive legislation, Republicans will find friendly judges, march cases up to the Supreme Court to be overturned. Net, net, the country at best stagnates. And with stagnation comes unrest. With unrest comes continued threats to our democracy and submission to authoritative rule.

If you do not think we are re-living the history of Nazi Germany, you have not read any history. Shakespeare wrote: “What’s past is prologue.” But it need not be.

President Biden, expand this court.

* The Bradley Impact Fund is a boutique donor-advised fund supporting well-vetted grantees committed to preserving American freedom and values. The wealthy family led by Robert and Rebekah Mercer invested nearly $20 million last year into a dark money fund that allows donors to keep secret the ultimate destination of their contributions. Some recent contributions to the Donors Trust have gone toward groups that pushed claims of election fraud before and after President Joe Biden defeated Trump in last year’s election.

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Keith Frohreich

Keith Frohreich

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Writer of books, blogs and newspaper columns. Due to the current threats to our democracy, my blogs, for now, will focus on those threats. If not me, who?