How do we know that Brett Kavanaugh will be a stringent right-wing justice, wedded to social conservatives, business interests, and the electoral well-being of the Republican Party? The same way we knew that about John Roberts, Samuel Alito, Neil Gorsuch — and Clarence Thomas before them. They are creatures of the Federalist Society.
As the court itself will be.
The connection is so unsubtle as to be unseemly. Eleven years ago, when the Federalists celebrated their 25th anniversary in Washington, D.C., Thomas, Alito, and the late Antonin Scalia hailed the Society in person, as did Roberts by video. Then, as now, its central mission is to convert the theoretically independent judiciary into an organ of Republican politics peopled with hard-right acolytes.
To this end, the Society identifies conservative law students, stiffens their ideological conformity, and finds them clerkships and other plum jobs — all preparatory to placing hand-crafted zealots in judgeships or the Department of Justice. Conservative lawyers who crave judgeships must first run the Federalist gauntlet. As the spokesperson for a right-wing advocacy group says, “Anyone who is anyone who is a conservative lawyer is a member of the Federalist Society.”
Unsurprisingly, the Society is funded by Republican plutocrats like Richard Scaife and the Koch brothers. Their interest, it is fair to say, does not lie in promoting judges marked by intellectual distinction and independence of mind, but in ensuring that the courts are in lockstep with their militant political goals. To that end, their network funds those gauzy ads that repackage carefully vetted ideologues like Kavanaugh as broad-minded paragons of humanity devoid of preconceptions.
Of course, every ideology seeking power requires its Lenin, an operative obsessed with fusing doctrinal purity to hard-nosed politics. Enter Leonard Leo.
Perhaps you’ve never heard of him. But for an ambitious conservative like Kavanaugh, Leo’s approval is a prerequisite to judicial appointment by any Republican president. As a student of the conservative legal movement says, “The one thing all the lawyers [in the conservative pipeline] have in common is that they all know Leonard, and he knows all of them.”
So who is he?
In brief, Leo, the Federalist Society’s long-serving executive vice president, is an extremely right-wing fundamentalist Catholic bent on enshrining a judiciary that relentlessly promulgates his worldview. That’s his privilege as an American. But it makes him an exceedingly blinkered judicial gatekeeper for a diverse and pluralist society rooted in the separation of church and state — the very template he deplores.
It is, perhaps, no coincidence that, should Kavanaugh be confirmed, he will join four other Republican justices — Thomas, Roberts, Alito, and Gorsuch — who are also conservative Catholics. Here one treads with care — the generally liberal Sonia Sotomayor is also Catholic, and a religious test for judges is inherently repugnant. But it’s fair to note Leo’s obdurate insistence that his fixed religious ideology should define — or limit — the rights of every citizen.
Take abortion. Says Leo: “It’s an act of force. It’s a threat to human life. It’s just that simple.” It is for Leo and, one suspects, for a Federalist majority newly empowered, to reconsider Roe v. Wade.
This matters. To pacify skeptical conservatives in 2016, Trump publicly asked Leo to provide him with a list of prospective nominees to the court — a critical factor in Trump’s election. Ever alert to self-interest, Trump has now effectively subcontracted his judicial appointments to the Federalists.
Thanks to Leo’s network, these appointments will be ideologically predetermined. Kavanaugh serves as template — a reliable friend of business and ardent social conservative who has expressed doubts about the legal underpinnings of Roe. Whatever pretense of disinterest he deploys to secure confirmation, Kavanaugh — like Leo’s prior selection, Gorsuch — knows why he’s there.
The prospect of more such appointments looms — Justice Ginsburg is 84, Justice Breyer 78. Their replacement by conservative ideologues a generation younger could transform our society. One can expect the further erosion of reproductive rights, union rights, and antidiscrimination laws, accompanied by rulings that cement the GOP’s political power, upholding voter suppression laws and quashing challenges to gerrymandering.
But the Federalists will permeate every level of our judiciary. As of August, Trump had placed 26 judges on the federal appeals courts and another 26 on the lower courts. Eighty-nine more appointees await confirmation; 64 more vacancies await appointees. In all but the few cases that come before the Supreme Court, these judges render the last word. Thanks to the Federalist Society, their rulings will reshape American law for decades.
For Leonard Leo, this prospect is heaven on earth.
Richard North Patterson’s column appears regularly in the Globe. Follow him on Twitter @RicPatterson.