These senators, led by Sheldon Whitehouse of Rhode Island, are set to send letters requesting information and documents from the White House, the Office of Personnel Management, the Justice Department and the Federalist Society.
They want documents that will shed light on the activities of Leonard Leo, a longtime Federalist Society executive, and his contacts with the administration.
The letters charge that Leo is effectively “leading the Administration’s efforts to identify and select judicial nominees, and press for their confirmation,” yet because he is not officially a government employee he evades the responsibility for disclosure.
I spoke with Whitehouse about this issue, and he argued that all this is about something much deeper than skirting bureaucratic requirements. Whitehouse noted that Leo’s role in relation to the Trump administration is a window into just how much our judicial system is being corrupted.
Leo, the senators’ letter says, is “at the center of a complex network of nonprofit groups and shell entities funded largely by anonymous donors.” And there’s big money involved: “Between 2014 and 2017 alone, Mr. Leo’s network collected more than $250 million in donations, the sources of which remain unknown.”
How are they using all that money? Whitehouse describes a three-step process these donors employ to capture the judiciary.
First, Whitehouse says, “Supreme Court judges are selected by the Federalist Society.” But, crucially, Whitehouse adds that this group also “has a huge dark money operation behind it.”
The group provides a network and pipeline to promote conservative ideas and conservative lawyers; all five GOP-appointed Supreme Court justices either are members or have strong ties to the outfit. According to its 2018 tax returns, it had a budget that year of over $21 million, but as a 501(c)(3) charitable organization, it does not have to disclose donors.
But as Whitehouse asserts, the Federalist Society doesn’t just produce Supreme Court justices: These days it chooses them. When he ran for president, Donald Trump put out a list of 25 people he’d consider for the court; 24 of them either were Federalist Society members or had ties to it. Leo was advising Trump then as now, providing him with names to put on not just the Supreme Court but appellate and district courts as well.
In the second step of the process, Whitehouse argues, after the nominee is selected, the campaign for his confirmation is also run by myriad groups funded by dark money, which spend millions of dollars to make that happen.
Then comes the final step. As Whitehouse argues, many of the cases that end up before the court are nurtured, argued and pushed along by groups funded by dark money. This “creates the real likelihood that a small group of very powerful and wealthy interests are the common funders of this whole scheme,” Whitehouse said.
While there may well be individual corporations or groups that fund all three stages of the process with an eye mainly to specific cases they care about, Whitehouse argues that the overall thrust invests in a pro-corporate bias that will continue to bear fruit. And we have no idea who’s paying for it all.
In the Trump era, Whitehouse says, those interests “have basically been handed the keys."
I sent detailed questions to Leo regarding Whitehouse’s allegations and the broader issues involved. Keith Appell, a spokesperson from the PR firm that represents Leo’s network, sent this reply:
This country has a rich history of respecting citizens who want privacy in giving to causes they believe are true and just — from the American Revolution, to the Abolitionist and Women’s Suffrage Movements, to the civil rights movement. Senator Whitehouse himself, and the liberal causes he supports in the Senate, benefit from this privacy, receiving vast amounts of undisclosed money with the cooperation of liberal ‘dark money’ groups like Arabella Advisors and the League of Conservation Voters — indeed, far more money than comparable groups on the center-right. Senator Whitehouse should stop his hypocritical, pathological preoccupation with denying our speech and privacy rights, and have the courage to take on the merits of our positions.
While it’s true that there is a long history of private donations to political causes, I’m not sure that there were corporations bankrolling the women’s suffrage or civil rights movements because they stood to make millions or billions of dollars from the outcome of those efforts.
Ironically, Leo’s enormous influence over the makeup of the judiciary in the Trump era has been enabled by the fact that Trump actually doesn’t care much about judges or judicial philosophy. So he’s perfectly happy to just turn much of the operation over to Leo and other conservatives.
Whitehouse also excoriates his Republican Senate colleagues for what has resulted, as they watch the Trump administration appoint one unqualified 35-year-old right-wing extremist after another to lifetime appointments on the federal bench with almost no examination.
“What’s telling is how little pushback there is from anybody on the Republican side about all this extremism,” he says. “Ordinarily you’d see senators standing up for their institution [and] for certain levels of experience, and decorum, and evenhandedness.”
“The fact that all of that gets thrown out the window implies to me a more powerful political force at play,” Whitehouse adds.
Whitehouse acknowledged it’s a serious challenge to get people to focus on this issue. “We have not been anywhere near as focused on exposing the court capture operation as the Republican side has been about implementing the court-capture operation,” Whitehouse said.
This isn’t easy, in part because many cases in which the influence of corporate and well-heeled interests matter most involve some obscure regulation or law that seems arcane but is of intense interest to those who stands to make or lose millions on the outcome.
But this is another reason the fate of the courts should be on everyone’s mind in this election.