Republican presidential candidate Donald Trump has a message for members of his party who fear that he will appoint someone to the bench who is insufficiently conservative: chill! Trump’s not even planning on picking judges himself. Rather, he told a radio show hosted by the pro-Trump media site Breitbart earlier this week, he will delegate this function to a leading conservative legal group.
It’s Trump’s latest, and most explicit, effort to allay fears among conservatives who fear that his judges could depart from the Republican Party’s preferred reading of the Constitution. Trump previously indicated that he was working with the Heritage Foundation, an influential conservative policy shop, to identify potential Supreme Court nominees. Last month, he released a list of 11 white people that he would consider appointing to the nation’s highest Court, a list that was praised even by Trump skeptics on the right.
Trump’s remarks on the Breitbart radio show, however, may be his most explicit statement that he plans to leave judicial selection to movement conservatives. “We’re going to have great judges, conservative, all picked by the Federalist Society,” Trump says, if he is elected president.
The Federalist Society is one of the most influential legal organizations in the country. In the past, its membership provided a wellspring of judicial candidates to Republican presidents. Its current members include numerous sitting judges, U.S. senators, and Justices Clarence Thomas and Samuel Alito. So Trump’s decision to rely heavily on the Federalist Society is not surprising for a Republican president, although his explicit statement that he will delegate his judicial selection power to the conservative legal group is unusual.
Of course, it’s unclear whether Trump will actually carry through on this plan to turn over the keys to America’s courthouses over to the Federalist Society, or whether he will abandon this plan after he no longer needs conservative votes in order to win the 2016 election. If he does leave judicial selection to the Society, however, that plan could very well backfire on him. For, while a more conventional Republican president can probably be pretty sure what they will be getting from Federalist Society-approved judicial nominees, it’s far from clear that a President Trump will enjoy the same certainty.
Many prominent Federalist Society members are openly hostile towards the idea of Trump being in the White House.
At least on the surface, the Federalist Society functions very much like a debating club, featuring discussions that often highlight disagreements within the conservative movement or between liberals and conservatives. Within a range, there’s also a fair amount of diversity of viewpoints among the Society’s members and speakers. Some, for example, believe that the judiciary should take a more restrained approach (all the better to overrule cases like Roe v. Wade, which prevent lawmakers from enacting restrictions favored by conservatives). Still others believe that the judiciary should be very aggressive, striking down laws that conflict with an ideological vision of the Constitution (all the better to achieve judicial repeal of Obamacare).
Officially, the Society takes no position on these debates within its membership, but it tends to elevate certain voices when it approves of the people running the government and other voices when it disapproves. In 2006, when George W. Bush was president, then-Secretary of Homeland Security Michael Chertoff praised the Federalist Society for its efforts to promote “judicial modesty.” After President Obama moved into the White House, the Society became a breeding ground for aggressive legal theories challenging Obamacare, access to birth control, the right to unionize and other efforts that sought to use the courts to hobble governance.
Indeed, at the Federalist Society’s most recent national lawyer’s convention, speakers showed an Ahab-like obsession with just once topic — severely restricting the executive branch’s ability to make or alter regulations. Had many of the ideas touted by the Society’s speakers actually become law, they would have hobbled President Obama’s ability to do much of anything at all.
Which brings us to the possibility of a Trump presidency. Many high-profile conservatives are, to say the least, ambivalent about a Trump presidency. Many prominent Federalist Society members are openly hostile towards the idea of Trump being in the White House. So it is an open question whether the Federalist Society’s handpicked judges would treat President Trump the same way that the Society treated President Bush, or whether Trump would receive the Obama treatment.