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DAVID SIROTA: According to their own founding myth, the Federalist Society was launched in the 1980s by three law students who set up chapters of the conservative-leaning legal group at law schools all over the country. But this group grew into much more than a campus organization. Within 20 years, the Federalist Society would have influence over nominations to the highest court in the land.
To understand the roots of the Federalist Society, we spoke with Lisa Graves. She worked in the Department of Justice and on the Senate Judiciary committee and is now the founder of True North Research, a dark money watchdog organization. We heard from Graves briefly in Episode 7, but wanted to share the extended interview she did with producer Laura Krantz. Their conversation began with an overview of the four men who have been integral to the success of the Federalist Society: Ed Meese, C. Boyden Gray, Jay Sekulow, and Leonard Leo.
LISA GRAVES: Ed Meese was there near the beginning of the Federalist Society when it was created in 1981 as I mentioned, and Meese had served as Attorney General under Ronald Reagan. And he is certainly considered one of the fathers, or, you know, godfathers, in essence, of The Federalist Society from that period, and has been active in it throughout this, you know, these past 40 years, in a variety of ways. C. Boyden Gray, the highest role that he had in government was as White House Counsel for George Herbert Walker Bush. He helped select Clarence Thomas for the Supreme Court to replace the great civil rights leader, Thurgood Marshall — he was someone who had an active opposition to civil rights or, you know, core civil rights laws. Thomas had served in the Reagan administration in the EEOC in a way that many people in civil rights community consider to be destructive, not supportive of that institution. And C. Boyden Gray had a had a key role in that as White House Counsel, but he also had a role in the selection of David Souter to go to the U.S. Supreme Court, and that is the nomination and confirmation of a judge who, you know, is considered to be a Republican or having Republican roots, but he was not sufficiently doctrinaire.
When George W. Bush became president, C. Boyden Gray was not White House Counsel during that period, but he was operating on the outside, and he was seemingly determined to help make sure that, you know, ideologues were put on the bench. And so from the outside of the administration, he launched a thing called the Committee for Justice, CFJ, which was an attack machine to attack the Democrats for opposing any of these Bush nominees who were at the circuit court level, largely drawn from the ranks of The Federalist Society.
Jay Sekulow has a sort of a reputation. He has a reputation as someone who's extremely doctrinaire and right wing. That's not to say that Mies and Boyden don't, they certainly are. We're also, in the case of Boyden, who's passed away, but we're also extreme, advanced, extreme agendas and and we're, you know, active in that effort. Sekulow was someone who has has, in particular, really targeted the separation of church and state in a variety of ways through his various operations and, you know, seeking to advance his religious agenda in a way that is not inconsistent with the types of nominees that Mies and Boyden supported, but is, you know, that's a more forward facing component.
And then obviously Leo is the inside man, the guy within the Federalist Society who rose to become vice president of federal society, to be the person leading the so-called umbrella group of all the outside special interest groups during the George W. Bush administration, to try to push through these extremely controversial nominees during George W. Bush's first and second terms in office. And then at the same time, was targeting state supreme courts for capture, targeting state attorneys general positions for capture, and really cultivating donors to help him advance that agenda, to basically operationalize that agenda from within the Federalist Society and beyond the Federalist Society.
LAURA KRANTZ: And it's fair to say that these four men have a lot of power and influence.
LISA GRAVES: They have had a lot of power, certainly some of them have had a lot of power within government and then outside of government. Through The Federalist Society and some of its efforts, they have tried to move forward a very regressive view of the law, one that is hostile to the precedents of the 20th century, precedents that really gave life to the language of the Constitution, that provisions that had been ignored, disregarded, discounted and discounted by federal judges.
And so, you know, in many ways, this so-called movement that The Federalist Society has been at the helm of was in part in reaction to Brown v. Board of Education, and whether they were going to try to justify it or not, along with opposition to the Roe v. Wade decision, which was built on a really important case called Griswold v. Connecticut, which recognized a right to autonomy in reproductive decisions that states could not limit, for example, women from accessing contraception. And so there's a whole host of decisions by the court in the 20th century, including decisions affirming major public policies like social security and programs to, you know, protect labor rights and more, and the Federalist Society and Leo and these men have you know worked for years to try to undo those precedents by, in part, by this appointment process of personnel being policy.
LAURA KRANTZ: You've talked about the Powell Memo in the past, and I'm curious if the Powell memo has any bearing on The Federalist Society? If there's any, if they're pulling from any of the information in that too, or if that's sort of a separate thing?
LISA GRAVES: The Powell Memo expressly targets the courts as a lever of power. And so the Powell Memo was written by Lewis Powell. He was, at the time, a lawyer for the tobacco industry, he had been instrumental in trying to prevent the federal government from regulating tobacco, despite the fact that the tobacco industry knew full well that its products caused cancer, had a tendency to cause cancer. But that's not the only that's not all Lewis Powell was. He also had been a lawyer advising the city of Richmond, as it was contending with Brown v. Board of Education. And though he wasn't the most outspoken of the white segregationists at that time, he helped put forward policies to pave the way for white kids to attend, you know, private institutions in order to not be subject to racial integration.
And in Powell's memo, of the things he wrote was that businesses needed to play a more active role in influencing Congress, in influencing universities and influencing the courts. And he singled out the courts as a particularly important lever of power. And then just 10 years later,The Federalist Society was created. A number of institutions or entities were created in the aftermath of the Powell Memo — the Pacific Legal Foundation, the Heritage Foundation, ALEC, the American Legislative Exchange Council, The Federalist Society, you know. So basically, there was a concerted effort over the next 10 years to implement the Powell Memo through creating these entities or funding a few pre-existing entities, but predominantly through creating new institutions and infusing them with cash from sort of proto-billionaires — people who were multi, multi-millionaires back when we didn't actually have billionaires — to advance an alternate vision for our constitution.
LAURA KRANTZ: So the Federalist Society gets started in the 1980s… can you give us just sort of a brief timeline, or a brief history of what happens between when they get established and when they get around the squashing Harriet Miers’ nomination in 2005? Just sort of like, how were they growing? How were they gathering steam?
LISA GRAVES: Well, they officially launched with a student conference, I think it was in ‘81 or ‘82, with some of these right-wing law professors who were guiding them. And they started establishing these law school chapters, in essence. But by 1986, the leaders of the Federalist Society were bragging to the New York Times that within a decade or so, they would have their people in key positions of power really by the, you know, year 2000 in essence — that they would be embedded everywhere. Because what the Federalist Society really was, despite the sort of claim that it's a debating society or that it debates these other student groups, the reality is, is that it's a pipeline for power, a pipeline for identifying people to put into positions of power in order to advance this extreme, extreme and regressive doctrine, to roll back the gains of the 20th century in having the Constitution mean what it says.
In my opinion, they promote this so-called originalist approach to interpreting the Constitution, or textualist, but only when it suits them, only when it advances their political agenda, Are they consistent on that generally. So by the time that Leonard Leo got to law school, he was able to create a chapter of the Federalist Society at Cornell Law School, and then he went to work in D.C. with judges who were actively involved in the Federalist Society. And then, when Thomas was nominated, he went to work on that nomination, or volunteer for that nomination to help Clarence Thomas get confirmed before and despite the allegations of Anita Hill that Clarence Thomas had subjected her to really, really outrageous sexual overtures as her boss and her mentor.
At that time in the early 1990s the Federalist Society was having some success, in part because it had been around from basically the beginning of the Reagan administration through two terms the Reagan administration into the first term of George Herbert Walker Bush. So they had basically 12 years of opportunities to get their people into key positions of power, or to recruit people, you know, from within the administration to be part of the federal society, participate in it, and, you know, promote its agenda.
Then Clinton became president, and the Federalist Society at that time, you know, was obviously still in existence. But one of the things that happened was that Leonard Leo became actively involved in trying to destroy the role of the American Bar Association in evaluating potential judicial nominees for the federal bench. So the process was internally at the Justice Department, and I started working on judicial nominations for DOJ in 1996. The process was that senators or representatives would suggest names to the White House. The White House would then seek the advice of the Justice Department about these nominees or potential nominees. The Justice Department would would provide that advice– you know, thinking this person has the temperament to become a judge, or this person seems to have the record, the fairness, to become a judge — then the White House would send that person's name out to the FBI for its background investigations — full-field background investigation to the age of 18. That's a 30-day period.
And in that 30-day period, the Justice Department would reach out to the American Bar Association and advise them that we were confidentially considering nominating a particular person and and then the ABA’s Standing Committee on Judiciary would have whichever circuit that potential nominee was from, speak confidentially with other lawyers and judges about whether that person actually practiced law in that district or circuit. What was their reputation? Did they have the reputation for being a smart and talented lawyer and fair-minded? Were they someone who treated people terribly, you know, didn't have the temperament to have a position of power, you know, were they deceitful or deceptive? Did they have experience?
And then at the end of that 30-day process, when the FBI investigation would come in, the American Bar Association would give us a piece of advice in which they would say, if you nominate this person, we will rate this person well-qualified, qualified or not qualified, or some variation. If we received a recommendation from the ABA that a person was likely to get a partial not qualified, we would re-examine that nomination in particular.
The third thing that was happening during that 30-day period is that we ourselves, at the just point were doing our own vet of the nominee, and that included calling 20 to 50 people who worked with or for that potential nominee, and asking them about the temperament of that person, whether they had the judgment and temperament to be a judge where they have did their reputation of fairness. And we called people who worked for them, including secretaries and law clerks, and not just partners who golfed with them.
And so at the end of that 30-day period, we had three three things. One was our internal evaluation based on calls about the temperament of the person and their skills. Two, we had the ABA recommendation of what they would do if someone were nominated. And three, we had the FBI background investigation, which I would read along with another colleague to assess whether there was an issue of blackmail ability, a problem with the person's background that would indicate that they could be like they had massive debt or something, and so they would be subject to potential blackmail or bribing, or they had other issues that could cause someone to possibly blackmail them, or they had what were known as “T” sources,” meaning redacted sources who expressed negative views on their character or their ability to be a judge.
And so with those three pieces of information, we would make an assessment and then recommend to the White House whether or not to nominate. The recommendation would come from the Attorney General, to the President, to the White House Counsel's Office, and then if, if the recommendation were positive, and it were positively received, that nomination would be made by the President. The nomination would be sent to the U.S. Senate as part of the nomination. What happened in 2001 was that one of the first things George W. Bush did was eject the ABA from the pre-nomination process. What happened simultaneously was that the Bush administration basically outsourced the pre-selection process to the Federalist Society to Leonard Leo, and they were involved. I know for a fact that they were involved in 2001 in contacting potential circuit court nominees and asking them how they voted. Did they vote for George W. Bush or not? As a precondition, for the Federalist Society recommending them for circuit judgeship.
LAURA KRANTZ: So by 2001 they've gone from being this campus group in 1981 and within 20 years, they've gone from that to being a real power in making judicial changes is it just because they had a lot of connections, they had people well-placed? In my mind, I feel like campus groups going from being kind of fringe on campus to being, like, massively involved in government, seems kind of crazy. But maybe they were more well connected and more powerful initially than was, than their myth, their founding myth makes it seem,
LISA GRAVES: Yeah, that's a really astute observation, because, in fact, the founding myth is, in my view, very much a myth. It was, the entity was created in order to identify people, law students, as well as law professors, to put into positions of power, to cultivate them into positions of power. And that's what they did for 12 years in the Reagan administration, Reagan, Reagan, Bush. And then by the time George W. Bush came into power, the Federalist Society had spent years attacking the ABA, trying to discredit the ABA and its role, which is really about merit selection. Even though the ABA was involved in the selection process, their evaluation was based on merit, not ideological true believer. How doctrinaire? Are you? That's not part of the evaluation.
And then instead, instead of that merit evaluation, what got substituted in was, Are you a true believer? Are you one of us? Are you, you know, are you going to basically advance this extreme agenda on the court? And they didn't necessarily have to ask that question. So it's, you know, worth noting that the Senate questionnaire that these nominees have to fill out once they're nominated asks if anyone has asked them how they would rule. Has anyone asked you how you would rule on a particular case?
When we were interviewing those potential nominees, you know, the White House Counsel's Office or DOJ, we never asked them how they would rule. We asked them about their experience, the cases that they had handled, how they handled, you know, litigants who were obstreperous, you know, you know, basically, did they maintain their temper? Or were they, you know, very active and harsh, or were they just maintaining order their court? But what was happening then, in 2001, was this group that, you know, like you said, its origin story is it's just a student debating society, you know, is playing this incredibly potent role in making recommendations to the White House about who to nominate for these positions of lifetime positions on the court.
And you know, one example of that, it's not the federal side, but it's sort of adjacent, is at one point we had a nominee named Miguel Estrada. He was nominated to the D.C. Circuit. He had been a lawyer at the Justice Department. His supervisor had expressed serious concerns about his willingness to follow legal precedent. He had reportedly or purportedly written memos attacking, you know, Gideon v. Wainwright, the idea that you were right to counsel, or numerous precedents, we sought out his memos at the Justice Department, in accordance with long standing precedent of the Justice Department sharing memos.
But what we discovered also in this process was that Leonard Leo was part of a screening committee with other people who were part of the Federalist Society, although it wasn't the Federalist Society per se, but he was part of a screening committee of former clerks for Justice Anthony Kennedy to screen out people who might be liberal, who might influence Kennedy to write a decision that might be liberal. So here you have someone who was literally trying to keep someone else from getting a one year job as a federal clerk based on their ideology, trying to get a job as a Supreme Court justice for life, and then claiming he had no ideology.
And so this was the game that the Federalist Society in essence, plays. They don't have to ask you what your views are. If you're part of the Federalist Society, you're assumed to be part of the club, you know, part of the doctrinaire, the group of people who are devoted this to this doctrine for the most part, even if there's maybe one issue you disagree with or something, they don't have to ask you how you're going to rule. They basically, by you being active in the Federalist Society, you've signaled that you are going to rule, you know, likely rule with them where you can if you were to get a judgeship.
And then an overlay of that is that these right-wingers were obsessed, in some ways, with trying to prevent people from getting clerkships who might be moderate or progressive and might persuade a justice to do something moderate. You know, that's how much they sought to control who was on the court, not just who was on the court, but who clerked for the court.
LAURA KRANTZ: So when we talked about Harriet Miers last time, you had said the Federalist Society destroyed her nomination, they forced Bush to take her down. How did they do that? Like for them to say to the President, “No, this might be your candidate of choice, but f*** you, you can't have her.” That's wow. Like, that's pretty amazing. So how did they make that happen?
LISA GRAVES: Well, that's certainly a flex, as they would say nowadays, and it was really Leonard Leo making that flex. And there are books that are written about that nomination, Miers’ nomination and Alito’s nomination that really detail the role that he played in basically rallying opposition to Harriet Miers, in essence, threatening the White House that if they did not withdraw her nomination, that senators would vote against her, that people would oppose her, that it would be egg on his face, that he would lose, and that, in essence, they would the if Democrats objected to her, there would be enough votes to defeat her nomination.
And so it was a pressure campaign, you know, a threat campaign. Leo was vociferously and vocally involved in that behind the scenes, according to contemporaneous, or near contemporaneous reports by insiders who wrote about that process. And he was, in essence, inflamed that, that that, you know, he wasn't consulted. Rr that George Bush chose to, you know, after getting Roberts nominated, who was someone that they wanted on the bench, someone that they were trying to had tried to put on the D.C. Circuit, successfully put on the DC Circuit as a way to pave the way for him to go to the Supreme Court. That George W. Bush would choose to use another vacancy for his own person, a person who he trusted, who had been his advisor for a long time. That was anathema to this agenda, because she apparently was not active enough in the Federalist Society or involved in ways that would give them confidence that she would be a sure vote.
And so it was. It was both an inside, outside campaign. In essence, there were, you know, communications that have been described, I certainly wasn't privy to them, but communications that have been described as, you know, from Leo to the Bush administration. And then there were public, you know, denunciations. There was a public campaign that was visible in newspaper articles and the like about Harriet Miers.
LAURA KRANTZ: And so basically, it would have been just tremendously embarrassing for Bush if he'd put forward this nomination, and then it wouldn't, it didn't get through because of his own party.
LISA GRAVES: That's right, it would be, it would be a huge loss for him, and embarrassing. And it got taken down pretty relatively quickly. But it's extraordinary. It was really extraordinary to see that happen. I'm not sure that there's a parallel, you know, in modern history for that. I mean, you had there were two failed nominations during the Nixon administration, but they failed because, you know, there were serious concerns raised about the lack of a record of equality would be one way to describe it, Nixon's choices. There's another way to describe it that's more evocative. But you know, they weren't withdrawn, in essence, because they weren't doctrinaire enough. You know they were withdrawn, they failed for other reasons, and they failed in part through action by the Senate or inaction, I think, in one case. But have to double check that.
But basically this, this, this idea that some outside special interest group, you know, personified by Leonard Leo, would be able to basically take down a choice of a sitting elected U.S. president of his, of someone he trusts, and he's worked with for years. It's an extraordinary exertion of power, and it sort of shows the tail wagging the dog. Who's, who's really nominating? You know, who's really nominating? It's Leo's operation and the money behind him.
DAVID SIROTA: That was former DOJ staffer Lisa Graves, speaking with producer Laura Krantz. There will be plenty more bonus content through the season for you premium subscribers. This bonus episode was produced by Jared Jacang Maher with help from Ronnie Riccobene. Thank you so much for supporting this ambitious project. Rock the boat.