Still the wrong way to pick judges

Thirty-six years ago, I published an opinion piece in the New York Times called “The Wrong Way to Pick Judges.” Based on my own experience, I criticized the Reagan administration’s decision to begin a process of formal ideological screening of judicial candidates. That policy began to alter the system for selecting judges and promised to transform the nature of the federal judiciary.

The aggressively pro-Trump ruling on Labor Day by federal judge Aileen Cannon ordering appointment of a special master to review the documents seized at Mar-a-Lago and barring the Justice Department from using those documents to pursue its criminal investigation confirmed the dangers to our justice system that I had feared.

Since I wrote that piece, the arch-conservative legal movement has reconstructed the federal judiciary through an ingenious plan effectively modeled on the “Little Red Book” of the Chinese “Cultural Revolution” — begin indoctrination early, while minds are impressionable, and put disciples on the bench as early in their careers as a pliant Senate will allow. Other countries in the past century saw their justice systems erode when their people watched passively while card-carrying membership in activist ideological organizations — different from traditional political parties — became the essential criterion for appointment to the bench. Unfortunately, our country is well on its way down into this pit of quicksand.

It used to be said that a federal judge is a “lawyer who knows a Senator.” When a vacancy occurred on the federal bench, the senators from that state proposed a candidate to the president. Senators typically suggested experienced lawyers with varied backgrounds, often with the senators’ political party affiliation but without any clear or demonstrable ideological commitment or rigid jurisprudence.

This process generated a system in which judges were actually flexible enough to take a reasonably fresh and objective view of the law, because they were not locked into philosophical preconceptions that undergirded their nomination. Not infrequently, judges selected in that way turned out to be more conservative than might have been expected from a Democratic appointee or more liberal than expected from a Republican appointee.

But the Reagan administration began to change this process, deputizing the Justice Department and the White House Counsel’s office to refashion the federal judiciary into a reliably and predictably hard-right conservative magistracy. I saw this from the inside, because I had served for several years as President Reagan’s appointee on the commission that identifies candidates for the courts in the District of Columbia.

Initially, the most useful device to screen for the required orthodoxy was to focus on law professors, whose body of academic writings painted a clear portrait of their legal philosophy. Professors Antonin Scalia, Douglas Ginsburg, and Robert H. Bork were three conservative archetypes who made it through that screen onto the federal appeals court in Washington.

That screen, however, was being replaced by one with far broader potential scope, one that could embrace a much larger pool of acolytes, and it eventually groomed Aileen Cannon for the federal court in south Florida. The new mechanism was the Federalist Society, and the strategy was to recruit members while still in law school and groom them over the years.

During the 1980s my name occasionally surfaced as a potential appointee to the federal appeals court in Washington (or the Supreme Court). A friend in the White House Counsel’s Office advised me that, if I was serious about a judgeship, I should join the Federalist Society, then just a few years old but already gaining steam as the most dependable proxy for the kind of judicial philosophy the Reagan people wanted. Unlike the Protestant Henry of Navarre, who supposedly quipped that “Paris is worth a Mass” and became King Henry IV of France, I said “no,” resigned, and wrote my op-ed (and never became a judge).

Since that time, much has been written about the role of the Federalist Society. It serves as the unique funnel through which virtually any judicial aspirant must pass in order to be taken seriously in a Republican administration, including most slavishly the Trump years, culminating in Cannon’s appointment after Trump lost the 2020 election. About 90 percent of Trump’s appointments to federal appellate courts were members of the Federalist Society. A Trump appointee was far more likely to be a member of the Federalist Society than of the American Bar Association.

Former Trump White House Counsel Don McGahn smugly responded to complaints that the White House had outsourced to the Federalist Society the selection of federal judges, proclaiming: “I’ve been a member of the Federalist Society since law school — still am. So frankly, it seems like it’s been in-sourced.” Now all six Republican appointees to the Supreme Court, including Trump’s three picks, are members of the Federalist Society, typically from their days in law schools.

That has been the key to the success of the program: Recruit young law students to join the Federalist Society early in their studies and inculcate them with core doctrines of the conservative legal camp — an all-powerful presidency summed up in the “Unitary Executive” concept, “textualism” in constitutional interpretation, and hostility to the “regulatory state.” Then put them on the federal bench in their 30s or early 40s so that they will have decades to turn the conservative doctrine into judicial rulings.

Aileen Cannon, who was 39 when nominated, became a member of the Society in her first year of law school and has remained a member. When asked during her confirmation hearings to identify organizations of which she is a member, she listed a sorority (she is a Tri-Delt), an academic honor society, two alumni associations, a country club, and the Federalist Society.

Although she acknowledged that she met with other members of the Federalist Society in connection with pursuing her nomination, she denied that she had joined and remained part of the Federalist Society as part of a career plan. One may be skeptical. It has been well known for decades that the most reliable route to a conservative federal judgeship is through the Federalist Society, which anoints candidates and spends enough money to overcome any resistance to Senate confirmation.

In her extensive study of the Supreme Court promotion of Justice Brett Kavanagh, another Federalist Society member since law school, columnist Ruth Marcus pointedly explained: “The Federalist Society is a one-stop shopping network for identifying, helping promote, credentialing, and supporting conservative lawyers. And in the end, turning them into conservative judicial nominees, and then conservative judges.” Any contemporary law student with ambition to don black robes someday knows that the path to the bench lies through the Federalist Society.

In Les Misérables, Victor Hugo aptly described the musings of the kindly “Monsignor Bienvenu” reflecting on how seminaries became breeding grounds for some clerical careerists and sycophants, “where ambition was mistaken for vocation and upward mobility — from a modest biretta to a bishop’s mitre to a pope’s tiara.” For aspiring judges, career planning begins in law school. Young law students understand that the Federalist Society, in concert with successive Republican administrations, has marked out a clear and seductive path: Sign up and join us, and a federal judgeship may be within reach at an early stage. From there it may be only a step or two to the Supreme Court, if you stay loyal to the creed.

Aileen Cannon has shown that she is remaining loyal.

Philip Allen Lacovara was deputy solicitor general of the United States for criminal and national security matters, counsel to the Watergate special prosecutor and president of the District of Columbia Bar.