August 22, 2018; New York Times
This has not been a good week for President Trump. He has seen his former campaign manager convicted of tax evasion and other tax-related charges, and his former lawyer agreeing to a plea bargain (“flipping,” according to the President). Others are falling in behind these two. Nevertheless, his presidential legacy will be secure—but not in this arena. For Trump, what will live on far after he leaves office will be the vast number of conservative judges he will have nominated, and the Senate subsequently confirmed, to lifetime appointments to federal district and circuit courts. They, along with the Supreme Court, will be the final say on laws in this country, which will have long-term consequences for everyone, including the nonprofit community.
Writing for the New York Times, Jason Zengerle did a deep dive into how, with the groundwork laid by the Federalist Society, this administration is remaking the courts. “In short,” Zengerle says, “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.”
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 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.”
This plan for the federal judiciary had been worked on and laid out long before Trump was a candidate for president. The slowing down of confirmation of Obama nominations to the federal courts began in his second term of office and culminated with the flat-out refusal by US Senator Mitch McConnell (R-Kentucky) to hold a hearing for Merrick Garland, his nominee for the Supreme Court. All of this has been orchestrated with the support and direction of the Federalist Society and the Heritage Foundation, two right-leaning think tanks that now wield large amounts of power. They plan for the long term and wait patiently for the right opportunity to move elements forward.
The judicial branch of government, little understood and, other than the Supreme Court, of little concern to the general public, became a logical means for quietly establishing conservative dominance. (One can see evidence of this premise in some recent Supreme Court decisions, as NPQ discussed in a July article on the implications for nonprofits of the nomination of Brett Kavanaugh to the Supreme Court.) The Federalist Society’s long-term plan is to exert control of government regulatory functions by filling the federal judiciary with jurists who share their philosophy and will then share their originalist, textualist interpretations and side with the executive branch when there is a dispute as to how to interpret a law. Federal agencies will be unable to develop guidelines for new Congressional statutes; if it is not in the statute, the agency cannot do it. Congress will be more restricted, as will all federal agencies, and many agencies will have little purpose.
For nonprofits, this is one of many ways this changing judiciary will limit their ability to function with flexibility. While it could mean working more closely with elected officials in the development of statutes to ensure that every “i” is dotted and “t” is crossed, it may also mean that there are more and more limitations on what is done. Imagine health care laws that must include every detail, or environmental statutes that have to have every regulation spelled out at the time they are passed.
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This grand Federalist Society plan has played out well. As we watch Congress bicker and fight over tax cuts and health care, McConnell and Senator Chuck Grassley (R-Iowa) have been quickly pushing young, mostly white, male, right-wing, Federalist Society-approved nominees through the Judiciary Committee (on mostly party-line votes), ignoring precedent and traditional procedures to bring them to floor votes in the Senate. There, they have almost always been approved along party lines to lifetime appointments. The count, at this writing, is 51 confirmed nominees: One on the Supreme Court, 24 on circuit courts, and 26 on district courts. That is a record number for the first two years of a presidency. And there are 92 nominees pending, awaiting hearings in the Judiciary Committee.
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.”
Again, from a nonprofit perspective, there is cause for concern. Many of these nominees and confirmed new justices could be considered judicial activists, with firm views on issues such as reproductive rights, the environment, workers’ rights, health care, and more. As lower federal court vacancies are filled with these jurists, the tenor of these courts, like the Supreme Court, will lean more toward a single direction. As Zengerle notes, “After just 18 months, Trump has ‘flipped’ two circuits—the Sixth and Seventh—from liberal to conservative. Two more—the Eighth and the 11th—are on the verge of tipping. Even circuits that are decidedly liberal are undergoing significant change.”
The nonprofit sector emphasizes the importance of planning, particularly long-range planning. Reflecting on the “lessons” of the Federalist Society’s success in remaking the courts, there is something to be said for the following:
- Look for strategies that may be powerful or important, but not obvious.
- Timing may need to take the long view.
- Take advantage of opportunities whenever they present themselves.
- Build alliances with those whose philosophy aligns and whose can offer long-term support.
- It helps not to be pulled in too many directions. Stay the course.
Most nonprofits will not have the deep-pocket funders of the Federalist Society or the cadres of right-wing law students who make up the young membership and then stay after becoming lawyers to be loyal supporters of the organization. But we can dream that those funders—perhaps with a different philosophy—are out there.—Carole Levine