Getting the Judges You Want - Pacific Standard

Getting the Judges You Want

A conservative interest group is becoming increasingly effective at picking and grooming the sorts of judges it likes.
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The Federalist Society logo, depicting the silhouette of James Madison's bust. (Photo: The Federalist Society)

The Federalist Society logo, depicting the silhouette of James Madison's bust. (Photo: The Federalist Society)

Some recent literature on the study of political parties (here, for example) focuses on policy demanders as the prime movers in politics. These policy demanders are people who want things out of government—they want abortions to be easier or harder to obtain, taxes to be higher or lower, the nation's borders to be more or less porous, etc. So they band together in groups to make sure that people who will advance their agenda get nominated and elected to office, and that other candidates don't.

The logic of organization by policy demanders is that they don't limit themselves to just one part of government. If you want certain policies enacted, you try to control as much of government as possible, including the Congress, the presidency, the statehouse, the county board of supervisors, the city council, etc. This literature tends to focus on electoral politics, which can give policy demanders control over the executive and legislative branches of government. But how do policy demanders deal with the judicial branch? Do they? After all, the court system deals with some of the most important issues of the day, from health care reform to same-sex marriage to reproductive freedoms. If a group could control that branch, it could control a great deal of public policy outcomes.

Ambitious conservative judges know that if they want a federal judgeship one day, they'll need to be in the Society's good graces, which they can ensure by issuing more conservative rulings.

As Pomona College political scientist Amanda Hollis-Brusky shows in her recent work, policy demanders are highly active even in the judiciary. Her book, Ideas With Consequences: The Federalist Society and the Conservative Counterrevolution, focuses on a group called the Federalist Society that has been actively trying to shape the nation's courts and guide the decision of judges for three decades.

The Federalist Society is a group of conservative judges, attorneys, and legal scholars devoted to an "originalist" interpretation of the Constitution—that is, one that sees the Constitution as an unchanging document that means what its authors intended it to mean at the time they wrote it. The group argues for a decidedly limited role for the federal government in things like the regulation of the economy and ameliorating inequalities.

One way the Federalist Society translates these priorities into actual results is by serving as a gatekeeper for federal judicial positions. Over the past three decades, the Society has managed to assert itself as the preeminent evaluator of judicial nominees. Republican presidents use the Society's rating system for making nominations, and senators judge those nominations based on the same ratings. Indeed, the four most conservative members of the U.S. Supreme Court are Federalist Society members and obtained office with the Society's blessing. What's more, ambitious conservative judges know that if they want a federal judgeship one day, they'll need to be in the Society's good graces, which they can ensure by issuing more conservative rulings.

The Society has also been quite adept in generating opinions and scholarship that are echoed by conservative judges across the country. Through its training sessions and education initiatives, it has helped to produce two generations of lawyers committed to its originalist vision. It's basically changed the conversation about the Constitution. A few decades ago, originalism was seen as a fringe viewpoint; today it's one of the dominant frameworks for American jurisprudence.

Finally, as Hollis-Brusky notes, the Society has helped to create an audience for conservative judges' opinions by producing a new generation of conservative court journalists. While a conservative ruling might have once been pilloried in the press, today it has an automatic cheering section, which will repeat its lessons to others. Conservative judges need not fear the media today in the way they once did.

Interestingly, the left seems to have no group quite like the Federalist Society. There is a group called the American Constitution Society, which seeks the same sort of influence as the Federalists, but must compete with many other interest groups on the left that take on the tasks of rating judicial nominees, socializing attorneys and judges, and trying to formulate and promulgate liberal legal doctrine. And as Federalist Society members would no doubt argue, there's little need for a liberal analogue for them since liberals are seen as controlling the nation's law schools and media.

It's not clear how much overlap there is between the policy demanders who focus on the judiciary and those who focus on the elected branches. Nor is it clear just how involved groups like the Federalist Society are in judicial elections at the state level. (Nearly half of the states use elections to fill Supreme Court seats.) But what we are seeing is an increasingly active group of policy demanders controlling access to judicial office and getting the policies they want in return. Polarization isn't just for elected offices.

Seth Masket writes a weekly column on politics for Pacific Standard.

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