Judge Brett M. Kavanaugh would not have been nominated to the Supreme Court had the Federalist Society not first chosen him for its shortlist of acceptable nominees. We don’t know the reason(s) he was picked, what assurances, if any, he gave to its leaders (recently or over the years) and what the Federalist Society or Leonard Leo, its executive vice president currently “on leave” to assist the White House, communicated to the president and his advisers about Kavanaugh. (We do know Kavanaugh regularly appeared at and spoke Federalist Society events for nearly 20 years, though no notes, transcripts or recordings of these events are available.)

Never before has any individual or outside, unaccountable group been so influential in shaping the courts, as the Daily Beast’s story last month makes clear:

At the center of the network is Leonard Leo of the Federalist Society, the association of legal professionals that has been the pipeline for nearly all of Trump’s judicial nominees. (Leo is on leave from the Federalist Society to personally assist Trump in picking a replacement for Justice Anthony Kennedy.) His formal title is executive vice president, but that role belies Leo’s influence.
Directly or through surrogates, he has placed dozens of life-tenure judges on the federal bench; effectively controls the Judicial Crisis Network, which led the opposition to President Obama’s high court nominee, Judge Merrick Garland; he heavily influences the Becket Fund law firm that represented Hobby Lobby in its successful challenge of contraception; and now supervises admissions and hires at the George Mason Law School, newly renamed in memory of Justice Antonin Scalia. …
The Federalist Society network is now estimated to include over 70,000 people. In 2016, they reported $25 million in net assets.

Leo may not choose Supreme Court justices, but he certainly narrows the field to a few select choices:

Leo played the decisive role in the appointments of Justice [Samuel A.] Alito (whom few people had heard of before Leo first promoted him), Chief Justice [John G.] Roberts, and Justice [Neil M.] Gorsuch—as well as in the unprecedented stonewalling of would-be Justice Merrick Garland.
Now, of the 25 people on Trump’s Supreme Court list, all but one are Federalist Society members or affiliates. Justice Gorsuch was the speaker at the 2017 Federalist Society gala. And when Gorsuch was asked how he had come to Trump’s attention, he told Congress, “On about December 2, 2016, I was contacted by Leonard Leo.”

And now Leo boasts that the judiciary is being transformed. CNBC reports on a recent Koch organization gathering:

At a private meeting Sunday at the Koch summit in Colorado Springs, Leo, along with Sen. John Cornyn, R-Texas, told a small group of financiers that the Trump administration was looking to overhaul a large chunk of the federal court of appeals by the end of the year, according to a person who was in the room during the discussion.
“By the end of this year my prediction is that basically 26 percent of the federal appellate bench will have changed under the Trump administration,” Leo told donors, prompting a round of applause, said the person, who declined to be named.

We have a private organization, funded by unknown interests, acting as a clearinghouse for judges. This is certainly more than a consultation (What do you think of Judge X?). The Federalist Society crossed a line when it came up with a list to which the president would restrict himself. As a hypothetical, let’s assume leaders of the AFL-CIO handed President Barack Obama a list of 10 judges who were the only possible Supreme Court nominees. Obama picked nominees from the hypothetical AFL-CIO list; does anyone think it would be appropriate for those justices to sit on labor-related cases?

Whether it is the Federalist Society, the AFL-CIO, ExxonMobil, Tom Steyer or the ACLU — no private group should have that influence without full disclosure. And a justice who faces a case involving those who hand-picked him or her must recuse.

It is a dodge to say that we simply have a grand coincidence that the administration’s views and the Federalist Society views align perfectly. There are many “originalist” judges who did not make the list. You see, there would be no need for the Federalist Society to engineer a list if any originalist-minded judge would do. The Federalist Society is there to make sure only the most ideologically dependable judges get on the court. You don’t need to narrow the list to 25 if we are talking about general matters of philosophy.

The Federalist Society, I think it obvious, looks for judges whose views are so fixed and whose outcomes are so certain they need not worry about “another Justice David Souter.” But in searching for a “sure thing,” the vetters are also eliminating judges whose minds are open to persuasion, who have not figured out in advance how they will rule on major cases.

There is a way at least to minimize the risk that the Supreme Court becomes the province of rich, secretive donors, donors whose concerns later come before the court: complete transparency. If the Federalist Society is going to pick our judges (or eliminate everyone but a few), the Senate is obligated to demand documents and testimony to answer the following:

  • Who funds the Federalist Society, and are those people given a voice in selecting justices (or lower court judges)?
  • Who approved the Federalist Society list of possible Supreme Court judges? Who compiled it? How was it compiled?
  • What are the criteria for getting on the list? Is having a strong religious faith one such criterion? What factors would disqualify someone from the list?
  • If a judge hasn’t made his or her views known on abortion, gay rights, etc., is that reason for exclusion?
  • If there is some question as to how a judge would rule on major issues of concern to conservatives, does the judge get on the list?
  • Has any judge on the list been asked or offered his or her opinion on cases likely to come before the Supreme Court? Which ones?
  • Has any judge on the list been asked or offered his or her opinion on whether any particular case should be overruled? Which ones?
  • Has any judge on the list been asked or offered his or her opinion on whether the 14th Amendment encompasses protection for abortion? For gay marriage?
  • Has any judge on the list served in any Democratic administration?

The Supreme Court must be free of taint and any appearance that its judges are beholden to any group, set of interests or individual. No one should have a wink and a nod from a prospective justice suggesting he or she has an “in.” No judge should get on the court because he or she is a rigid ideologue immune to persuasion.

The Federalist Society is perfectly free to keep doing what it is doing — but it can no longer be cloaked in secrecy. After all, if the Federalist Society knows how Kavanaugh will rule on a variety of issues, and the public should know, too.