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ARCHIVAL NEWS FOOTAGE: The conservative majority once again flexing its clout on the sharply divided High Court… the Supreme Court ruling that significantly expands the right to carry a gun… Justices released their decision effectively overturning the constitutional right to an abortion… That was a six-to-three ruling blocking President Biden’s student loan forgiveness program….
DAVID: I probably don’t have to tell you that the U.S. Supreme Court has been in the news a lot lately.
ARCHIVAL NEWS FOOTAGE: A defiant judgment from Supreme Court Justice Samuel Alito today…
DAVID: Like, A LOT a lot.
ARCHIVAL NEWS FOOTAGE: Conservative Supreme Court Justice Clarence Thomas finally discloses one of his controversial trips… at least 38 destination vacations, including a yacht trip around the Bahamas, 26 private jet flights, eight private helicopter rides paid for by Republican megadonor Harlan Crow.
DAVID: And the news has been about some pretty shady stuff.
ARCHIVAL NEWS FOOTAGE: Billionaires who are invested heavily in influencing the Supreme Court have been caught giving enormous secret gifts to individual justices.
DAVID: When you doom scroll through story after story… it can be overwhelming!
ARCHIVAL NEWS FOOTAGE: ...issuing subpoenas to conservative political activist Leonard Leo… Today, 18 Democrats from the House Judiciary Committee signed a letter to Chief Justice Roberts…
DAVID: Sometimes it’s helpful to step away from your phone and computer, dust off your old VCR and go back to a time before the Supreme Court wasn’t such an obvious horror show of scandal and corruption.
Check out this VHS tape… it’s a recording of Capitol Conversation... it was a public affairs TV program from the Clinton era. You probably don’t remember it — unless you were one of the cool kids who spent Sunday mornings watching dry political talk shows on Channel 8 in the Dallas/Fort Worth area.
This particular episode aired on July 2, 2000, and the guest being interviewed was a 40-something lawyer. Dark suit. Side-part haircut. Standard aesthetic of a seasoned litigator who represents corporate clients before the Supreme Court.
ARCHIVAL NEWS FOOTAGE: Looking back at the recently completed Supreme Court session, what do you think were the most important things that it did?
Taking this term as a whole, I think the most important thing it did was make a compelling case that we do not have a very conservative Supreme Court.
DAVID: Now this lawyer, he’s a smooth talker. He comes across as smart, calm… maybe some would even say, judicious? But it’s clear that Mr. “Judicious” is a conservative. And from that perspective, the Republican appointees on the Supreme Court of the late 1990s and early 2000s had been a huge disappointment.
ARCHIVAL NEWS FOOTAGE:
Take the three biggest headline cases, you know, Miranda, school prayer, abortion… the conservative view lost in each of them.
How can that be after we have nine justices of whom seven were appointed by Republican presidents only two by Democratic presidents?
Well, it’s an old story that the appointees once they’re on the court, they tend to go their own way.
DAVID: And it WAS an old story, at least among right-wing activists at that time… squishy “so-called-conservative” judges who just refused to get with the program.
But there was a glimmer of hope for the conservative legal movement at this particular moment. After seven years of Republicans being locked out of the White House, the 2000 presidential race was in full swing.
The TV host asks: What would it mean to have Texas Republican Governor George W. Bush win the election?
ARCHIVAL NEWS FOOTAGE: Well, you know, it’s hard to tell because you never know if the nominees that they select are going to carry out any particular point of view or if, as has been the case with many nominees in the past, they chart a different course.
DAVID: I’m not just playing this old tape from 2000 because I think VHS is a superior format and headed for a comeback… I’m playing it because it gives a nod to the master planners’ big problem at this particular moment: They knew it wasn’t enough to just win legislative elections or bring lawsuits. They knew they had to change the judges, or their agenda was doomed.
They needed judges who weren’t casually conservative - they had to install inculcated ideologues on the bench who would be guaranteed to deliver the rulings they want — rulings that help big business, disempower workers — and, of course, deregulate the campaign finance system.
And they needed to be ready to install their judicial picks when a seat opened up.
ARCHIVAL NEWS FOOTAGE:
Justice Stevens, who has been one of the more liberal members of the court, is the I think the oldest member of the court. And there’s some others also Justice O’Connor, maybe Justice Rehnquist.
Sure, and depending upon which ones of those stepped down and who is appointed in their place, it could well make a difference.
DAVID: That would prove to be quite an understatement, especially coming from this particular guest, who would soon after disappear from the media, and only pop up again a few years later — this time, in front of a much bigger audience.
ARCHIVAL SWEARING-IN CEREMONY: We have 23 photographers, well, five more waiting. We may revise our procedures to swear. Are you ready at the start of the proceeding?
DAVID: That lawyer on Dallas TV was none other than John Roberts — and five years after that television appearance, he was nominated Chief Justice of the Supreme Court by George W. Bush.
During his confirmation hearing, Roberts didn’t reveal a desire to install conservative judges who would be guaranteed to deliver ideological rulings. Instead, Mr. Judicious promised he would be completely impartial.
ARCHIVAL CONGRESSIONAL HEARING: Judges and justices are servants of the law, not the other way around.
DAVID: To make his point, Roberts made a now-famous baseball analogy
ARCHIVAL CONGRESSIONAL HEARING (JOHN ROBERTS): Judges are like umpires.
DAVID: Can we get some music here?
ARCHIVAL CONGRESSIONAL HEARING (JOHN ROBERTS): Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.
In our last episode, you heard about how the master planners had a World Series-level loss in the McCain-Feingold campaign finance case, underscoring their political problem within the nation’s highest court. But they knew the old saying:
So when the master planners lost the McCain-Feingold case, they weren’t really shedding any tears. That was just one court case. By then, they were already working on the bigger plan — changing the courts, and the law –– from the inside out.
This is part one of a double-header about the creation of a new Supreme Court — the Roberts Court. In the first of two episodes, we’re going to show how a nerdy college campus debate club became an all-powerful force in the American judicial system.Through a series of events — and hundreds of previously unreleased emails—we’ll show you how the master planners gained power, embedded their operatives in the White House, and began permanently altering the judiciary.
I’m David Sirota, and this is Master Plan.
When John Roberts appeared on TV in 2000 and aired his lament about squishy Supreme Court justices, he was echoing a long-time grievance of conservatives — that Republican-appointed Supreme Court justices tended to become less consistently conservative with age.
And in the early 2000s, this became a glaring problem for the master planners - especially on their pet cause of deregulating the campaign finance system and legalizing corruption.
In fact, less than a year before Roberts’ TV appearance — in a case that would preview the McCain-Feingold decision from last episode — Republican-appointed justices helped block an attempt to destroy campaign contribution limits. Here’s one of them — Justice Sandra Day O’Connor spotlighting the problem of soft corruption during the oral arguments of that case:
ARCHIVAL SUPREME COURT AUDIO (SANDRA DAY O’CONNOR): I suppose the most likely scenario for significant contribution would be the notion that I will give this money and expect in return that if and when I ever call this particular official, if the official is elected, they’ll pay attention to me. They’ll receive that call, respond, get in touch with me, and take seriously what I have to say.
DAVID: Republican appointees David Souter, John Paul Stevens, and Chief Justice William Rehnquist joined O’Connor to uphold the legality of campaign contribution limits at the state level. Justice Stevens went even further in a concurrence, declaring that “money is property — it is not speech.”
Those were fighting words to the master planners trying to legalize corruption — as were all of the other rulings where these Republican appointees deviated from conservative doctrine. And the master planners –– they were pissed.
JEFFREY TOOBIN: David Souter, John Paul Stevens, Sandra Day O ‘Connor, Anthony Kennedy, all of them had been appointed by Republican presidents and yet Roe v. Wade was still the law of the land. And that was a tremendous source of frustration on the right.
DAVID: That’s Jeffrey Toobin, a legal analyst and best-selling author of several books that cover the inner working of the Supreme Court. He says that conservatives were particularly traumatized by Souter, who betrayed the cause by eventually taking positions that supported civil liberties, reproductive rights, and campaign finance reforms.
By the early 2000s, conservatives even had a mantra.
JEFFREY TOOBIN: No More Souters. We don’t want to appoint anyone other than sure conservative votes to the Supreme Court. And that was a major, major priority.
DAVID: No More Souters!
Okay, well that sounds catchy and all, but… how exactly do you prevent future Souters? How do you start installing people like Roberts — a conservative lawyer who seemed to be really frustrated with the situation?
On the surface, Roberts’ warp-speed ascent from corporate lawyer in 2000, to Chief Justice of the United States Supreme Court in 2005, might seem like a random fluke or an overnight success — but as listeners probably know by now, in this story, nothing is random. There was a plan that started decades earlier.
Let’s remember the Powell Memo from 1971…
LEWIS BLACK AS LEWIS POWELL: The judiciary may be the most important instrument for social, economic and political change.
Following the memo’s guidance, conservative activists spent the 1980s and 1990s building a formidable network of well-funded think tanks and academic institutions. One of those institutions would become extremely significant in the legal sphere, a group that’s been in the news a lot lately — the Federalist Society.
ARCHIVAL SPEECH AUDIO (RONALD REAGAN): Thank you all very much…thank you very much…
DAVID: This is Ronald Reagan in 1988 speaking to the Federalist Society. The group first emerged as a college-campus-based legal organization nurturing conservative law students. The group championed philosophies like “constitutional originalism” that in the early 1980s was basically regarded as far-right nonsense within legal academia.
But as the Federalist Society built hundreds of chapters at law schools around the country their once-fringe legal theories were soon championed and mainstreamed by Republican politicians.
ARCHIVAL SPEECH AUDIO (RONALD REAGAN): How far we’ve come these last eight years. Not only in transforming the operations of government, not only in transforming the departments and agencies and even the federal judiciary. But also in changing the terms of national debate and nowhere is that change more evident than in the rise of the Federalist Society on the campuses of America’s law schools
DAVID: Reagan understood that the Federalist Society wasn’t just some kooky low-budget campus debate club. This was a group funded by master planners from the Powell Memo era that we’ve mentioned before — John Merril Olin, Richard Mellon Scaife, and the Koch brothers. They took seriously the Powell Memo’s call to build a counter-force of smart, young minds who could fight on behalf of free enterprise.
These oligarchs delivered millions of dollars to the Federalist Society to help provide a safe space to cultivate and promote conservative lawyers…people like…Ronald Reagan’s attorney General, Ed Meese.
ARCHIVAL SPEECH AUDIO (ED MEESE): I’m very proud that the founders and leaders of this organization many of them are in fact serving with me in the Department of Justice…
DAVID: Meese, a longtime Reagan confidante and an early advisor to the Federalist Society, was obsessed with getting conservative judges onto the courts.
He’d succeeded with Reagan’s 1986 appointment of Antonin Scalia to the Supreme Court.
And when another Supreme Court seat opened up a year later, Reagan offered it to another ideological warrior: the guy who fired the Watergate prosecutor, the guy whose subterfuge helped weaken post-Watergate campaign finance legislation… a name we’ve mentioned many times in this podcast… yes, conservative legal icon Robert Bork…
But Bork’s confirmation hearing wasn’t exactly smooth sailing. It quickly became a fiasco when Democrats did something unexpected, they actually fought back and held Bork accountable.
ARCHIVAL CONGRESSIONAL HEARING (ROBERT BORK): I said yesterday that I did not break the law in Watergate. There is no existing court opinion that says I did. I did not even know the principal characters in that. I’ve never met them.
There’s no existing opinion, and there certainly is. You know, I never make opinions either, but the opinion is there when it’s in print. It has been declared to have no legal force whatsoever. Mr. Chairman.
DAVID: Citing Bork’s own writings on various issues, Democrats made him look like a real-life Dr. Evil.
ARCHIVAL CONGRESSIONAL HEARING (SENATOR TED KENNEDY): In Robert Bork’s America, there is no room at the inn for blacks and no place in the Constitution for women; and, in our America, there should be no seat on the Supreme Court for Robert Bork.
Bork became the first Supreme Court nominee to be voted down by the Senate in almost two decades. And that rejection became a catalyzing moment for the conservative legal movement, as recounted here by Meese.
ED MEESE: The Democrats had just taken over the Senate. You had all of these very left wing groups, special interest groups, that were spoiling for a scalp. And so you had all of this come together to attack Bob Bork.
At his Federalist Society speech in the wake of Bork’s defeat, Reagan told the organization to redouble its efforts to pull the judiciary to the right.
ARCHIVAL SPEECH AUDIO (RONALD REAGAN): So this is my message to you today: To hold the torch high, to stay in the battle. Too much is left to do. The battle is far from over and all is yet to win or lose.
DAVID: Bork’s rejection would quickly become the Federalist Society’s villain origin story, with its own iconic verb that entered the vernacular.
To be “Borked” meant “one who is unfairly attacked for their conservative beliefs.”
Federalist Society leaders and other master planners were incensed — but they had a chance to avenge Bork when only a few years later, another Federalist Society darling got his own nomination to the Supreme Court. Ladies and gentlemen, the one you’ve been waiting for, Mr. Clarence Thomas.
ARCHIVAL SPEECH AUDIO (CLARENCE THOMAS): Conservatives need to realize that their audience isn’t simply lawyers. Our struggle is not simply another litigation piece or technique. This is a political struggle…
DAVID: This was Thomas speaking at a Federalist Society Student Symposium in 1988. The “political struggle” he’s talking about is part of his encouragement to his Federalist Society brethren to use the courts as a vehicle for their conservative activism.
This time around, with Clarence Thomas’s nomination in 1991, the master planners didn’t just wait around to be Borked. They instead launched a preemptive attack. Conservative groups funded ads against Democratic Senators who had been questioning Thomas’s ethics.
ARCHIVAL POLITICAL AD: Judge Clarence Thomas, endorsed by the U.S. Senate as a fighter for civil rights. Nominated to the Supreme Court.
DAVID: This ad was sponsored by a political action committee called Citizens United — yes, the same conservative group that would prompt the infamous Citizens United Supreme Court case 20 years later. Don’t worry, we’ll get to that case in a future episode.
ARCHIVAL POLITICAL AD: But who opposes Clarence Thomas? The liberal special interests and the soft-on-crime crowd. They call Clarence Thomas not qualified to sit on the supreme court just because he won’t bow to their liberal litmus test. Call your senator and urge support for Clarence Thomas. His values are our values
DAVID: Another set of groups launched ads touting Thomas as a model American.
ARCHIVAL POLITICAL AD: Clarence Thomas’ life has been exemplified by hard work, discipline, and self-reliance. He’s the role model to whom we can all look with pride.
DAVID: By the time Thomas’s confirmation hearings began scrutinizing Anita Hill’s allegations of sexual harassment, an emboldened Thomas wasn’t interested in answering questions — he focused on portraying himself as another Bork being wrongly persecuted.
ARCHIVAL CONGRESSIONAL HEARING (CLARENCE THOMAS): This is a circus. It is a national disgrace. It is a high-tech lynching for uppity-blacks, and it is a message that, unless you kowtow to an old order, this is what will happen to you.
DAVID: The conservatives’ pressure campaign and strategy paid off. The Senate, which was controlled by Democrats at the time, narrowly confirmed Clarence Thomas on October 23, 1991.
One of the conservative activists working on Thomas’s confirmation team was an ambitious 25-year-old from New Jersey named Leonard Leo, who had formed his own Federalist Society chapter at Cornell University around the time of the Bork fiasco, and who had become friends with Thomas while clerking for a judge.
Thomas’s brutal confirmation process left an indelible mark on Leo. He immediately took a job with the Federalist Society to expand its assault on the judiciary.
He focused on recruiting and nurturing lawyers for the conservative judicial machine. I like to imagine a factory assembly line like in the movie Terminator. This factory was cranking out these conservative robots who could pass as regular humans during confirmation hearings, but who would never deviate from their ideological programming once they’re on the court. Here’s Leo describing that assembly line in a Federalist Society video.
LEONARD LEO: We start with young, talented law students, move them through our campus chapters, integrate them into our lawyers chapters throughout the country upon graduation. And provide a community that’s the backbone for finding opportunities to foster the application of our principles.
DAVID: After successfully installing Thomas on the high court, conservatives eyed new opportunities to install more Republican judicial nominees on the lower courts.
But Senate Democrats, who controlled the Senate at the time, seemed to realize how ridiculous they looked in letting Thomas get on the high court — so they put their foot down. They halted almost all of Bush Sr.’s other nominees in 1992 — including a young John Roberts, whose first nomination for a judgeship didn’t even get a hearing.
And then, later that year, Bill Clinton unseated Bush in the 1992 election… so the conservative legal movement played defense and began working with Senate Republicans to block the new Democratic president’s judicial nominees while also moving young conservative lawyers into prominent clerkships, jobs at big DC law firms and conservative think tanks –– all of them poised to fill top government positions as soon as Republicans won another presidential election and retook the White House.
Now, they didn’t pull off a win in 1996, and they lost the popular vote in 2000 — but then something happened in the U.S. state that keeps coming up in our podcast…
ARCHIVAL NEWS FOOTAGE: Welcome to our program here in Florida the presidential contest gets tighter by the hour…
DAVID: Up next, Florida and the cursed 2000 election.
In the 2000 presidential election, the master planners seemed set for a two-fer: their campaign finance nemesis John McCain was defeated in the Republican primary, and the party’s nominee George W. Bush offered a chance to change the courts forever. During his presidential campaign, Bush used dog whistle language to signal that he would do the conservative legal movement’s bidding when it came to judicial appointments.
ARCHIVAL CAMPAIGN AUDIO (GEORGE W. BUSH): I don’t believe in Liberal activist judges, I believe in — I believe in strict constructionists. And those are the kinds of judges I will appoint.
DAVID: All Bush had to do was just win the election… which, well…
ARCHIVAL NEWS FOOTAGE: A big call to make… CNN announces that we call Florida in the Al Gore column. This is a state both campaigns desperately wanted to win.
DAVID: But then…
ARCHIVAL NEWS FOOTAGE: Standby standby… CNN is moving our earlier declaration for Florida back to the ‘too close to call’ column.
DAVID: And by too close to call we’re talking photo finish,100-meter-dash, everything on the line, too close to call.
An action squad of lawyers from Republican-aligned legal firms descended on Tallahassee, to scrutinize how the paper ballots were being processed by election officials. The American public was begrudgingly introduced to technical terms like a “hanging chad.”
ARCHIVAL NEWS FOOTAGE: The final category is the “pregnant Chad” that is the Chad was pierced with a hole but not detached at all…
DAVID: Kids, if you’re curious what a “pregnant chad” is, ask a parent or trusted adult.
ARCHIVAL NEWS FOOTAGE: Now, the Republicans here, Cokie, seized on all of this confusion. They said ‘see we told you this is a deeply flawed process it must stop.
DAVID: One of those lawyers who got the call was that clean-cut ‘“judicious” lawyer from the start of this episode: John Roberts. He assisted the Bush Campaign with their lawsuit to stop the vote recount — a case that went all the way to the top
ARCHIVAL NEWS FOOTAGE: Behind the scenes at the United States Supreme Court, one of the most secret places in American public life.
DAVID: In the end, Roberts and other Bush lawyers secured the infamous Bush v. Gore ruling. In this particular case, enough of the Republican appointees –– including the squishier ones like O’Connor and Rehnquist –– stuck together in a 5-4 opinion that halted the vote count and installed popular-vote-loser George W. Bush into the White House.
The implications of that ruling for the future of the court itself were obvious from the moment the decision was handed down.
ARCHIVAL NEWS FOOTAGE: Now that the court has jumped into the middle of presidential politics, experts fear more questions about the court’s independence. And with George Bush perhaps nominating future justices, Democrats tonight promised an even tougher road to confirmation.
DAVID: Once Bush was sworn in in January 2001, the master planners got to work. Federalist Society vice president Leonard Leo focused on making sure that he and his fellow conservatives would be the loudest voices in the room when it came to choosing judges.
ARCHIVAL NEWS FOOTAGE: After 50 years of special status the American Bar Association will no longer have a leading role in vetting candidates for federal judgeships. The White House notified the ABA today that it will no longer get advanced word on prospective nominees.
DAVID: Disempowering the American Bar Association had been a pet cause of the conservative legal movement ever since a handful of ABA officials had declined to endorse Robert Bork’s Supreme Court nomination.
ARCHIVAL CONGRESSIONAL AUDIO (ORRIN HATCH): There have been times in the past where I’ve wished that the ABA had no role in this process because they’ve done such a lousy job. They’ve done a partisan job.
DAVID: That’s Republican Senator Orrin Hatch summarizing conservatives’ grudge.
ARCHIVAL CONGRESSIONAL AUDIO (ORRIN HATCH): There are those who are complaining that one of the future presidents of the ABA is one of those who definitely did some real dirt to Robert Bork.
DAVID: But it wasn’t just petty revenge for doing Bork dirty — conservatives had an additional reason to convince the Bush administration to cut the ABA out of the loop: They wanted to make sure Bush’s nominees were ideologically pure.
LISA GRAVES: The Federalist Society had spent years attacking the ABA, trying to discredit the ABA in its role, which is really about merit selection…
DAVID: That’s Lisa Graves, a former Senate Democratic Judiciary staffer who is now a researcher focused on exposing the influence of dark money on institutions including the Supreme Court.
LISA GRAVES: Instead of that merit evaluation, what got substituted in was ‘Are you a true believer, are you one of us, are you gonna basically advance this extreme agenda on the court?’
DAVID: With that system changed, Bush officials developed their first list of new umpires to be installed on the lower courts.
ARCHIVAL NEWS FOOTAGE: President Bush introducing his first nominees for federal judgeships… and that is increasingly a battleground between the left right and middle in American politics.
DAVID: Now whose name do you think was on Bush’s list of judicial nominees for the lower courts? Wanna take a guess?
“JUDGE JUDY”: Listen to me. Let me explain to you. No, no, no. I want you to stop talking!
DAVID: Nope, not Judge Judy. It was, calm, cool Mr. Judicious — the guy from the Dallas TV interview complaining about judges going soft — the lawyer who had helped Bush stop the recount in Florida. That’s right: John Roberts.
Here’s Jeffrey Toobin again.
JEFFREY TOOBIN: John Roberts had sort of ‘judicial stardust’ around him practically from the moment he graduated from law school.
DAVID: Like Lewis Powell before him, Roberts came off as low-key and humble. But underneath his affable smile was a master planner at heart.
JEFFREY TOOBIN: He looked like and was the perfect Republican judicial nominee, at least of the early 2000s. He’d worked in the Reagan White House. He had worked in the Solicitor General’s Office in the George Herbert Walker Bush administration.
DAVID: If Clarence Thomas was one of the Federalist Society’s original Terminators — a conservative robot rolled off the assembly line back in 1991 in the wake of the Borking — Roberts was like the upgraded T-1000, the shapeshifting liquid robot who looks all friendly while carrying out the master plan.
“TERMINATOR”: So this other guy he’s a Terminator like you, right?
Not like me A T-1000. Advanced prototype.
DAVID: Roberts had showed flashes of his ideological commitment early in his career: In the 1980s, he joined the Reagan administration to help spearhead its efforts to limit the Voting Rights Act. Roberts penned a memo defending a push for judicial term limits on the grounds that federal judges were engaging in behavior that “usurps the roles of the political branches” What sort of crazy political behavior? Protecting abortion rights and mandates for airbags and seat belts in new cars.
Roberts’ memo was important: it showed that at an early age, he was a conservative soldier on a relentless mission to challenge judicial liberals.
“TERMINATOR”: That terminator is out there. It can’t be bargained with. It can’t be reasoned with. And it absolutely will not stop. Ever!
DAVID: By the turn of the millennium, Roberts had been sharpening his skills as a cutthroat lawyer for corporate interests. He had helped Toyota with its case aiming to weaken the Americans with Disabilities Act. And he had also helped the U.S. Chamber of Commerce try to dismantle a program that aimed to lower prescription drug prices for people without insurance.
And now here in 2001, Roberts was on the White House list for a lower court appointment because as a former steering member of a Federalist Society chapter, he seemed like a sure thing for the conservative legal movement — a jurist with a very bright future. Here’s Jeff Toobin again.
JEFFREY TOOBIN: He was also in his late 40s, you know, the perfect age to begin a long judicial career.
DAVID: And unlike when Roberts’ first judicial nomination was blocked in 1992, this time around in 2001 the political dynamics were different: A Republican was president AND Republicans controlled the Senate by one vote. The master planners knew if they could use this moment to place Roberts and other arch-conservatives onto the lower courts, they would be one step closer to their ultimate goal.
JEFFREY TOOBIN: Both Republicans and Democrats knew that he was likely to go up to the Supreme Court one day.
DAVID: Early on in 2001, Roberts seemed to be a shoo-in for the powerful D.C. Appeals Court… but two weeks after his nomination, a bombshell went off in Vermont.
ARCHIVAL SPEECH FOOTAGE (JIM JEFFORDS): In order to best represent my state of Vermont, my own conscience and principles I stood for my whole life, I will leave the republican party and become an independent.
DAVID: Just four months after Bush was sworn in as president, Republican Senator Jim Jeffords shocked the political world and decided to leave his party, declaring that the GOP had become too extreme, especially on its push to change the courts.
ARCHIVAL SPEECH FOOTAGE (JIM JEFFORDS): I can see more and more instances where I would disagree with the president on very fundamental issues — the issue of choice, the direction of the judiciary…
DAVID: The move gave control of the Senate to the Democrats. With his newfound power, Senate Democratic Leader Tom Daschle refused to process a bunch of Bush’s archconservative nominees –– including Roberts. Here’s Daschle.
TOM DASCHLE: But we have said from the very beginning that It is very critical that the judicial nominees, especially for the appeals in the Supreme Court, uh, positions, are people of moderate philosophical temperament and have an impeccable past.
So what did this all mean? With Roberts and others nominees stuck in limbo, the master planners in 2001 had a big problem, but they still had the White House and its bully pulpit heading into the midterm elections.
ARCHIVAL SPEECH AUDIO (GEORGE W. BUSH): Ours is a system that relies on an independent court system and when there’s vacancies, the American people suffer. And I call upon the senate to approve — at least give hearings to –– people we’ve sent up to the senate.
DAVID: Vice President Dick Cheney and Republican senators amplified that message.
ARCHIVAL SPEECH AUDIO (DICK CHENEY): …all of the others are still awaiting confirmation hearings including two superbly qualified nominees to the DC circuit –– John Roberts and Miguel Estrada.
DAVID: To the casual observer in 2002, this must have seemed strange. Why in the lead up to the midterms — not long after 9/11, in the middle of the so-called war on terror — why were the president and vice president so laser-focused on something as obscure as as lower court judicial nominations? Why the obsession and why now?
Because the call was coming from inside the house — the White House.
Although the public probably couldn’t see it, the Federalist Society and the conservative legal movement had embedded itself inside the Bush administration, and they had a guy on the inside working the gears. A master planner who went by the initials BK.
We’ve got that whopper of a story after the break.
JARED: Ok ready? Here it goes. Ahem.
From: don.willett@usdoj.gov. September 2002.
“Bottom-line: There was much bellyaching…Kay Daly, Leonard Leo particularly were giving me an earful…”
DAVID: This is Master Plan producer Jared Jacang Maher, reading …what the hell are you reading, Jared?
JARED: This is part of an email exchange between Don Willet, an official in Bush’s Justice Department, and a very special crew of insiders within the Administration who were in charge of putting conservative judges on the bench.
DAVID: And so this is around the time that Bush and Cheney are trying to elevate the issue of judges just before the 2002 midterms.
JARED: Right. At this point in 2002, Senate Democrats were continuing to stall Bush’s nominees. And Willet was emailing his colleagues about all the pressure they were facing from Leonard Leo and the conservative legal movement, which was demanding an even more aggressive push for judicial confirmations. Willet wrote that these activists — backed by huge money — were “pleading for a high-profile, jaw-dropping presidential act of some kind, not a ‘Gee, we’re really upset at how this turned out.’”
Willett also wrote that Leo and the activists “want bashed kneecaps” and blood.
Conservative groups were angry that Bush wasn’t being angry enough. One of the officials in this email chain replied that this coalition of conservative activists was ready for “DEFCON 1 retaliation.”
DAVID: So this is what’s going on behind the scenes — this is why Bush is so focused on judges before the midterms.
JARED: Yeah, these guys were taking it very seriously. The conservative legal movement had been building up for decades, ever since the Powell Memo, and now these true believers inside the Department of Justice were helping transmit the movement’s increasing demands.
DAVID: And this is just one of hundreds of internal emails that you dug up from this era, right?
JARED: I may have gone a little bit overboard with the research. Again. There were actually thousands of these emails released during Kavanaugh’s Supreme Court confirmation. But some of these emails we’re looking at in this episode have never been released publicly.
DAVID: Okay, so when we say the conservative legal movement is operating inside the White House, what exactly are we talking about?
JARED: Operate is the right word, because the internal White House records that we reviewed come from the email account of one key political operative — who often signed emails with his initials: B.K.
DAVID: B.K.… B.K.… wait a minute, oh god, you don’t mean —-
ARCHIVAL CONFIRMATION HEARING (BRETT KAVANAUGH): Yes we drank beer, my friends and I.
JARED: Brett Kavanaugh, the Supreme Court justice appointed by President Donald Trump.
ARCHIVAL CONFIRMATION HEARING (BRETT KAVANAUGH): Boys and girls, we drank beer. I like beer, I still like beer…
DAVID: Ah yes, who could forget Kavanaugh’s, ahem, memorable performance at his confirmation hearing.
JARED: But this is young Kavanaugh, way back at the turn of the millennium.
DAVID: He seems like a younger version of John Roberts, with a similar “built in a lab” pedigree.
JARED: You could say that. They had a lot in common. Kavanaugh worked on the Ken Starr investigation of President Bill Clinton — remember the Starr Report? — and, like Roberts, young Kavanaugh was among the hoard of GOP lawyers that helped litigate the 2000 election into a Bush victory.
After the Florida recount, Roberts got a court nomination, while Kavanaugh scored a sweet job in the White House counsel’s office. His main focus? Judicial appointments, working closely with lawyers in a special division of the Justice Department… called the Office of Legal Policy.
DAVID: That’s the office that Reagan’s attorney general Ed Meese set up in the 1980s and staffed with Federalist Society members, right?
JARED: Yeah. Ed Meese, one of the O.G. conservative legal activists. We heard his voice earlier talking about the Federalist Society. As Attorney General in the ‘80s, Meese built this behind-the-scenes team of lawyers to push and defend Reagan’s conservative policies. They also helped pick and vet potential federal judges for Reagan to nominate.
DAVID: So the Office of Legal Policy was like the plumbers for the judicial pipeline that Leonard Leo was talking about.
JARED: Sure. And you saw it when the Bush administration first hired its staff for the first term, journalists and officials in other departments of the government looked at people like Kavanaugh and offices like the OLP and raised complaints that there were too many Federalist Society members in key White House roles
DAVID: Now, officially, Leonard Leo and the Federalist Society were still insisting that there was nothing to see here — that they basically had no political power and they’re just a friendly debate
JARED: Yeah exactly — in early 2001, Leo actually wrote a letter to White House counsel Alberto Gonzales saying that.
He stated, “The Federalist Society leaves political agendas, and political advocacy to other groups and individuals,” and emphasized that the organization “does not recommend nominees or candidates for public office.” While acknowledging that Federalist Society members quote “often have tried to provide lists of people worth considering,” Leo made it clear they’re speaking for themselves, not the Society.
DAVID: But the emails we found reviewed a different story, right?
JARED: Yeah, I’d say. They tell the opposite story. From the get-go, Leo seemed to be on White House speed dial, and all over White House officials’ correspondence about judicial nominations.
DAVID: And one person who seemed to be in regular contact with Leo and other conservative legal activists was B.K., right?
JARED: Yes, Kavanaugh was at the center of all of it. Let me read you a few other snippets from B.K.’s emails in Bush’s first term: “Leonard Leo is working on that”… “I talked to Leonard”… ”Leonard L. will follow up.”
DAVID: Seems like Leo is all over these emails from other Bush administration officials too.
JARED: He definitely made a lot of cameos.”’Leonard Leo is finding a helpful conduit”... “Leonard Leo might know some generous donor”... “Leonard Leo might have something helpful…”
The day before Bush announced the nomination of Roberts and other conservative judges in 2001, Kavanaugh even asked to have White House officials send Leo a binder of information. Eventually, an email to Kavanaugh from another White House official said Leo and his staff would be “helping coordinate outside coalition activity regarding judicial nominations.”
DAVID: And Leo seemed to be interested in how the judiciary affected Big Business.
JARED: Yeah, we found one email where Leo is pitching presentations to industry groups about “Business and Courts.” The reply includes attachments, focusing on “business interest,” “business case examples,” and “business certainty.”
DAVID: That email from Leo is right around the time that one of the O.G. master planners, former Reagan and Bush administration lawyer C. Boyden Gray, was courting business support for a new group called the Committee For Justice to push conservative judicial nominees — and air ads attacking Democrats who were opposing them.
Gray, a Federalist Society stalwart, reportedly launched the group in 2002 at the urging of Bush’s political adviser Karl Rove and Senate Republican Leader Trent Lott. With the Supreme Court arbitrating so many issues of interest to big business, the new committee was filled with corporate lobbyists whose clients included banks, tech and telecom giants, defense contractors, and drug companies.
We reached out to Leo and spoke to some of his associates to see if he’d be willing to do an interview for this podcast, but ultimately did not get a response.
JARED: But big picture… with Kavanaugh…it’s important to note that, while mapping out Roberts’ nomination in 2001 and 2002, he wasn’t just interfacing with Leo. Kavanaugh was plugged directly into the wider conservative legal movement and media apparatus that had been constructed out of the Powell Memo movement.
He wasn’t just interfacing with Leo. Emails show he was having meetings with people like Paul Weyrich of the Heritage Foundation and anti-tax guru Grover Norquist. The White House led a conference Call with talking heads and conservative leaders about judges…with conservative media bigwigs, including Sean Hannity and Rush Limbaugh.
And… Kavanaugh received invites to more intimate gatherings, like Ted Olsen’s annual Federalist Society barbeque at his house.
DAVID: I bet Federalist Society dudes followed Ron Swanson’s rules of barbeque.
“PARKS AND RECREATION”: Barbeque should be about one thing. Good shared meat. There will be no froofy desserts. And most of all, there will be no f*cking vegetables.
JARED: B.K. also had one-on-one calls with Ed Meese, naturally. And he corresponded with Ginni Thomas, Clarence Thomas’s wife, who was working as a kind of White House liaison for the Heritage Foundation.
DAVID: Man, the master plan really is like the Marvel cinematic universe of recurring characters.
Leo has likened running judicial confirmations campaigns to more like running a war, with troops, tanks, air, and ground support. But every war costs money. So with Roberts’ and other nominations stalled before the 2002 midterms, where did the money come from to try to amplify the campaign for his confirmation and the confirmation of all the other conservative judges Bush wanted?
JARED: This is where it ties back to campaign finance reform. Bush signed the McCain-Feingold Act in March 2002, right? Well even before this, political operatives were scrambling to find workarounds… namely using the tax code to create tax-exempt groups that could raise soft money as long as they didn’t officially coordinate with parties.
DAVID: These were predecessors to what would become super PACs and other shadowy advocacy groups, right?
JARED: It was definitely the same idea. And one of the first groups that popped up was led by the former director of the Bush/Cheney 2000 campaign, called Progress for America.
DAVID: I have a sneaking suspicion they didn’t want actual progress for most of America.
JARED: Well, their definition of “progress” was probably different. Progress for America was described by the Washington Post as a group that has “raised millions of dollars, which it uses to promote Bush’s agenda of tax cuts, energy legislation, conservative judicial appointments and free trade.”
The White House emails we reviewed show the group was tightly integrated into weekly meetings and conference calls using their funds for PR campaigns — op-eds, talk radio appearances, mail campaigns and interviews to push President Bush’s judicial nominations.
DAVID: Okay, so now it all makes sense why in the leadup to the midterms, Bush was so focused on judges — he was responding to the conservative legal apparatus inside his own White House. And this all bled into the fall campaign.
ARCHIVAL CAMPAIGN AUDIO (GEORGE W. BUSH): I’ve worked hard to name well-qualified jurists… And I can’t get the politics of the United States Senate to be set aside for the good of the judiciary. One reason we need to change the Senate is to make sure the well-qualified judges I have named and nominated get approved to the benches all across America.
DAVID: Bush devoted his final radio address before the election to the judicial issue. The New York Times headline summed it all up: “Bush Places Senate’s Delays on Judicial Appointees at Core of Campaigning.”
And when the votes were counted in the 2002 midterms...
ARCHIVAL NEWS FOOTAGE: This was a day of celebration for most Republicans. In Tuesday’s midterm elections, they recaptured the Senate with at least 51 seats, and added to their majority in the House.
GROVER NORQUIST: Those judges will come out of committee and they’ll be voted on the floor. There will be one or two that the Democrats can find some excess somewhere, real or imagined, and take one or two people down, but a hundred will be made judges in the next year.
DAVID: You know, it’s clear to me the Democrats were playing checkers, and the conservatives were playing 3D chess
JARED: Not chess. Laser tag.
DAVID: Laser tag?
JARED: Yes. Right after the midterm elections with Bush’s judicial nominees still stalled, Don Willet wanted to solidify the strategy of a team called the Judicial Confirmation Working Group. At a retreat.
DAVID: A retreat?
JARED: So imagine all these lawyers leaving the White House and driving about an hour north to this fancy place called the Turf Valley Resort. It’s got a golf course, a pro-shop, and a full-service European spa, all in the bucolic backwoods of Central Maryland.
Willett wanted the retreat to end with “a solid plan to flex their regained majority muscle” in the judicial nomination process. Kavanaugh is there.
And here’s the detail I love most. Check out this agenda. Look at what they did for a team-building exercise…
DAVID: Wait, you were being serious, they played laser tag?!
DAVID: Oh that’s too perfect. I see that the guest speaker was future Homeland Security Secretary Michael Chertoff. You totally know he killed it at laser tag.
JARED: But while they weren’t laser tagging, The retreat produced a strategic document called the Judicial Confirmation Action Plan. Though the document is still redacted, what we can see is that it laid out a comprehensive approach to push the Bush administration’s judicial agenda. This plan went beyond picking candidates; it outlined an entire public campaign designed to pressure Congress to confirm as many judges as possible.
DAVID: All of this organizing and conniving resulted in a massive PR campaign from the White House on down after Republicans’ big win in the 2002 midterms — and back at center stage was the terminator John Roberts.
Shortly after the midterm elections with Republicans having regained control of the Senate, Bush renominated Roberts and other archconservative judicial candidates.
And this time, Roberts got a confirmation hearing he had been denied during Bush’s first two years in office. At that hearing, Republican lawmakers depicted Roberts not as a Terminator, but instead in baseball terms — as an umpire.
ARCHIVAL CONGRESSIONAL HEARING (SENATOR CORBYN): Are you willing to commit to assuming a new role and a different role, and that is as an impartial umpire of the law?
ARCHIVAL CONGRESSIONAL HEARING (JOHN ROBERTS): Yes I am, senator. There’s no role for advocacy with respect to personal beliefs or views on the part of a judge. Personal views, personal ideology — those have no role to play.
DAVID: Roberts faced opposition from liberal groups who saw his nomination as more proof that the Bush administration was trying to pack the courts with Federalist Society extremists. But the White House judicial machine was at DEFCON 1 — Bush devoted a national radio address to hammering on the judge issue.
ARCHIVAL SPEECH AUDIO (GEORGE W. BUSH): We face a vacancy crisis in the courts. Yet a handful of democratic senators for partisan reasons are attempting to prevent any vote at all on highly qualified nominees.
DAVID: This relentless campaign finally began paying dividends on May 8, 2003.
ARCHIVAL CONGRESSIONAL AUDIO (ORRIN HATCH): I ask unanimous consent that the senate immediately proceed to executive session to consider the nomination of John Roberts to be a Circuit judge for the D.C. Circuit.
DAVID: After Democrats had stalled Roberts nomination for years, he ended up being confirmed by the full Senate with nobody registering any opposition on the final vote.
ARCHIVAL CONGRESSIONAL AUDIO: Is there objection? Without objection, so ordered.
DAVID: John Roberts — the judicial T1000 Terminator — was successfully deployed as “Judge Roberts” on the D.C. Circuit.
Alas, Roberts’ confirmation to the DC court of appeals was not the end of the “Judicial Confirmation Action Plan” hatched by Brett Kavanaugh and other Federalist Society acolytes at that luxury resort in Maryland.
It was actually just the beginning. Because while Democrats had given in and allowed Roberts and a slate of other judges through the Senate, they still were holding out on two other conservative Bush nominees.
And so the very next day after Roberts was confirmed, Bush and the master planners were in the Rose Garden, making their most public show yet to signal they were back on the attack.
ARCHIVAL WHITE HOUSE EVENT (GEORGE W. BUSH): The bitterness and partisanship that have taken over the judicial confirmations process, also threaten judicial independence. Some senators have tried to force nominees to take positions on controversial issues before they even take the bench. This is contrary to the constitutional design of a separate and independent judicial branch.
DAVID: Seated among the rose bushes were Leonard Leo, Ed Meese and a conservative lawyer named Jay Sekulow, who was a legal activist representing the Christian Right.
This new coalition, bringing in the muscle of the Christian Right, aimed to build off Roberts’ confirmation to the lower court, and continue transforming judicial nominations from a niche topic into an issue that the average voter would care about.
If this coalition could replace more Senate Democrats with loyal Republicans, they could ram through even more judicial picks.
And if they could punish one especially prominent Senate Democrat, it might scare the rest of the opposition party into submission — whether in fights over lower court nominees, or fights over nominees to the big kahuna, the Supreme Court.
So in 2003 and 2004, where exactly could this conservative legal machine find such a big Democratic target? One place — the home of credit card companies, the badlands, and Mt. Rushmore.
TELEVISION COMMERCIAL: There’s so much South Dakota, so little time.
That’s next time on Master Plan.