In Gorsuch, Conservative Activist Sees Test Case for Reshaping the Judiciary

    In Gorsuch, Conservative Activist Sees Test Case for Reshaping the Judiciary

    WASHINGTON — Deep into the Senate’s 68-page questionnaire of Judge Neil M. Gorsuch, the Supreme Court nominee was asked to describe how he had come to President Trump’s attention.

    The first thing he wrote was, “I was contacted by Leonard Leo.”

    Most Americans have probably never heard of Leonard A. Leo, who has long served as executive vice president of the Federalist Society, an organization of conservatives and libertarians who “place a premium on individual liberty, traditional values and the rule of law.” But as Mr. Trump begins the process of filling what could be the most federal court vacancies left to any president in nearly a half-century, Mr. Leo is playing a critical role in reshaping the judiciary.

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    He sits at the nexus of an immensely influential but largely unseen network of conservative organizations, donors and lawyers who all share a common goal: Fill the federal courts with scores of judges who are committed to the narrow interpretation of the Constitution that they believe the founders intended.

    “The Supreme Court needs to be an institution that helps to undergird limited constitutional government,” said Mr. Leo, 51, whose cerebral, unassuming demeanor belies the enormous clout he has developed in Washington.

    It is a worldview that has brought Mr. Leo and his allies together with a range of conservative players. In addition to major corporate backers such as Google and Chevron, the Federalist Society’s supporters include well-known industry-oriented and libertarian-minded business leaders like Charles G. and David H. Koch; the family foundation of Richard Mellon Scaife; and the Mercer family, which gave significantly to Mr. Trump’s presidential campaign and helped start Breitbart News.

    This judicial reformation is being coordinated from Washington by a relatively small team closely aligned around Mr. Leo, who is on leave from the Federalist Society while he helps the White House shepherd the Gorsuch nomination. The network includes John G. Malcolm of the Heritage Foundation and Ann Corkery, a Washington lawyer who along with her husband, Neil, oversees the Judicial Crisis Network and related dark-money groups that also support the cause.

    While a free-market agenda and the desire to place judges who will be more skeptical of federal and state regulations is a driving force, several central players in the group are also motivated by intense religious beliefs.

    “We can have an incredible impact,” said Carrie Severino, chief counsel of the Judicial Crisis Network. Ms. Severino counts among her clients the Little Sisters of the Poor, the Catholic nuns who won a federal court ruling that Obamacare limited their religious freedom.

    Judge Gorsuch, 49, is their first test case, with his confirmation hearing set to begin on Monday — but the conservative activists say more is at stake than just the Supreme Court.

    “Make no mistake,” Mr. Leo said in a speech last month at the Ronald Reagan Dinner at the Conservative Political Action Conference. “How we deal with this vacancy now, the strength that we as the pro-Constitution movement demonstrate in this fight, will determine the extent to which we are able to both nominate and confirm pro-Constitution judges as we move forward.”

    Mr. Trump already has 124 judgeships to fill — a backlog created by Senate Republicans who blocked the confirmation of many of President Barack Obama’s nominees. That includes 19 vacancies on the federal appeals courts.

    Because of the age of many judges today, the White House expects between 70 to 90 appeals court positions to open up over the next four years. That would give Mr. Trump the opportunity to fill anywhere from one-third to half of all appellate seats — a profound impact considering that those courts are often the final word on thousands of cases that never reach the Supreme Court.

    The scale and sophistication of the right’s judicial confirmation efforts would seem to portend a dark period ahead for the left, which, despite having made great strides under Mr. Obama, finds itself outmaneuvered.

    “The right wing, very purposely and methodically, has built a stable of nominees that fit their ideological profile, and it’s been a national movement, well organized and strategized,” said Senator Richard Blumenthal, a Connecticut Democrat, who serves on the Judiciary Committee. “Frankly, I think the progressives of the Democratic Party have been less vigilant and vigorous than the right.”

    Hitching to Trump

    There was little question to whom Mr. Trump would turn when he was putting together his list of possible Supreme Court nominees last year: Mr. Leo, who has spent almost his entire legal career at the Federalist Society, after graduating from Cornell Law School in 1989.

    The father of seven children and fond of speaking in biblical allusions, he rose to prominence more than a decade ago as the Republican Party’s co-chairman of Catholic outreach. At Justice Antonin Scalia’s funeral last year, he read from the Old Testament.

    When President George W. Bush made his two nominations to the Supreme Court in 2005, picking Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., Mr. Leo assumed the responsibility of coordinating outside campaigns to buttress their Senate confirmations. It is a role — which he has described as analogous to running a political campaign — that he has reprised with the Gorsuch confirmation.

    Mr. Leo has an exalted reputation among conservatives, including Scott Pruitt, the former Oklahoma attorney general who is now head of the Environmental Protection Agency. Mr. Pruitt recalled in a speech last year at the conservative bastion Hillsdale College how he was in Washington for a Federalist Society meeting in 2013. Mr. Leo asked him to stay an extra night for dinner, without giving a hint of who might show up.

    “Any time that Leonard asks you to go to dinner, you stay, because he feeds you well,” Mr. Pruitt said. But it was not only the menu that was impressive. Mr. Pruitt arrived to see Justices Scalia and Clarence Thomas at the table.

    “We spent three hours talking about the Constitution and things that we were involved in as attorneys general,” Mr. Pruitt recalled. “It was a fabulous time.”

    Mr. Leo has been at the center of Mr. Trump’s judicial selection process since last spring, when Donald F. McGahn II, Mr. Trump’s campaign lawyer and now the White House counsel, introduced them. It helped enormously that Mr. Leo came to the campaign at a critical time of need.

    Mr. Trump’s relationship with the conservative moment was tenuous at best. Last March, a prominent group of Catholic leaders in the United States, including several with close ties to Mr. Leo, published an open letter in National Review, a conservative magazine, declaring Mr. Trump “manifestly unfit to be president of the United States.” It was the type of rejection that was becoming all too worrisome for Mr. Trump. At the same time, a faction of delegates threatened to block his nomination.

    So in May, in an unprecedented move for a presidential candidate, Mr. Trump shrewdly released the first of two lists of people he was considering to fill the Supreme Court vacancy left by the death of Justice Scalia, at first with help from Mr. Malcolm of the Heritage Foundation. Judge Gorsuch’s name was added in a second version of this list, with Mr. Trump thanking the Federalist Society and Heritage for their help.

    Polls showed this published list of 21 names was a significant factor in the election. Of the one-fifth of voters who said the Supreme Court was the most important issue in their decision, 57 percent voted for Mr. Trump.

    Mr. Trump gave broad discretion to Mr. Leo and his colleagues. Mr. Trump’s most important criterion, these lawyers said, was that he wanted judges who were “not weak” and of “high quality.”

    Their approach in coming up with candidates was similar to President Ronald Reagan’s. “They had this very sophisticated, detailed frame of reference from which they could begin to say, ‘O.K., well, who understands these things like we do?’” Mr. Leo said in an interview, referring to the Reagan era. “As opposed to an administration that might sit around and say, ‘Who’s a really smart lawyer who’s been really accomplished?’ Or, ‘Hey, what about my frat buddy from 1964?’”

    And as Reagan did by nominating Justices Scalia and Anthony M. Kennedy, Mr. Leo and his conservative colleagues have looked for judges who can serve as long as possible. “Young is good,” Mr. Leo said. “There will be an opportunity for a transformation of the federal bench.”

    A Small Network

    Even before Mr. Trump walked into the East Room of the White House on Jan. 31 to name Judge Gorsuch as his first Supreme Court nominee, the public relations campaign to confirm him had started.

    “Neil Gorsuch’s talent and skill would make for a great #SupremeCourt Justice,” said a post sent out on Twitter by the Judicial Crisis Network on the afternoon before the announcement.

    By that point, television and radio advertisements about Judge Gorsuch were already on their way to stations across the country. The campaign focused on five states picked for a very explicit reason: Each had a Democratic senator up for re-election next year, and all the states had voted to elect Trump.

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    This more public part of the push — Mr. Leo has never been particularly comfortable in the spotlight — has been handled by Ms. Severino, 40, a Harvard Law School graduate who served as a clerk to Justice Thomas and is a frequent speaker at Federalist events. Ms. Severino said the group’s efforts to secure Judge Gorsuch’s confirmation reflected the consensus of American voters, who picked Mr. Trump in part because of the Supreme Court choices he said he would make.

    But an examination of the Judicial Crisis Network’s operations and financial records suggests that the group, in fact, has an incredibly narrow base. In 2015, the last year that tax records were available, the Judicial Crisis Network’s entire budget of $5.7 million appears to have come from a single donor, an organization called the Wellspring Committee, based in Manassas, Va., that describes its mission as advancing “limited government and free markets.” Judicial Crisis and a sister organization, the Judicial Education Project, reported in tax returns that they had a total of only two employees and no volunteers, and instead largely relied on outside consultants, like CRC Public Relations, a Virginia firm that also lists the Federalist Society and other conservative groups as clients.

    Ms. Severino, asked whether her group was simply a shell to secretly move money on behalf of others, said the Judicial Crisis Network should not be judged based on the size of its staff.

    “We are not trying to be a large membership organization,” Ms. Severino said in a written statement, sent by CRC, which asked that the remarks be attributed to her. “There are others who excel at that type of work, and we are happy to support them as allies.”

    It is clear that there are close personal ties among the leaders of the push to confirm Judge Gorsuch. Ann and Neil Corkery help run a network of nonprofit organizations like Catholic Voices USA, an organization that promotes the church’s views. They also help Mr. Leo in managing the National Catholic Prayer Breakfast, tax records show.

    There are even overlaps with the funding. Mr. Corkery is listed as treasurer of the Judicial Crisis Network. A separate Internal Revenue Service filing shows that Ms. Corkery is president of the Wellspring Committee. Tax records from the past two years also show that Mr. and Ms. Corkery were paid nearly $600,000 to help run 15 nonprofit groups, including the Judicial Crisis Network. They declined requests to discuss their overlapping roles in these organizations.

    The impact of this intertwined network can also be seen in a number of state-level efforts to appoint more originalist judges.

    Last year, the Judicial Crisis Network and a second organization it donated money to bought politicaladvertisements in two Supreme Court races in Arkansas, which are decided directly by voters. The advertising by the groups, which spent far more than the candidates themselves, attracted widespread attention to what has normally been a low-profile race.

    The intervention was considered disturbing enough that the Republican-controlled state legislature held a special hearing last year where those targeted by the groups testified.

    “I suppose some with misplaced or contorted egos might be flattered these shadowy groups would spend over a half-million dollars directed to keep one off the court,“ said Clark W. Mason, a Little Rock, Ark., lawyer who was one of the candidates for the Supreme Court. “But I am outraged. They are attempting to shift the scale of justice.”

    The legislature this year failed to pass a law that would require a group like Judicial Crisis to disclose the source of its funding if it wants to play a similar role in future elections in the state.

    Judicial Crisis has also donated more than $2 million to the Republican Attorneys General Association — making it the single largest contributor in the 2016 election cycle, as it sought to elect top state law enforcement officers who could bring conservative-inspired cases to state or federal courts with judges the group also helped put into place.

    Mark Holden, general counsel of Koch Industries, a donor to the Federalist Society, said in an interview that the efforts of these conservative legal activists were necessary to overcome a bias favoring judges who put their agendas before the law.

    “It’s very important that we have the right people in place, people who will follow our laws, judges who will follow our laws as they have been written and not as they wish they were written,” Mr. Holden said.

    One point all the parties agree on: Mr. Trump must not repeat the mistake that Mr. Bush made in moving slowly to fill the many vacancies in the federal court system.

    Mr. Leo is ready to play his part.

    “Those nominations to the lower federal courts are a high priority to the president and for senior administration staff,” Mr. Leo said in an interview last month that was broadcast on C-Span. He said the number of vacancies was historic. “It is something that is very much on the president’s mind.”

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    Published at Sat, 18 Mar 2017 15:21:22 +0000