October 12, 2018

Leonard Leo

The Federalist Society’s Executive Vice President Leonard Leo joins to discuss the recent Supreme Court confirmation process, the future of such processes, and conservative jurisprudence.

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Meet the man who introduced President Trump to Neil Gorsuch and Brett Kavanaugh.
Rest assured, if there’s another vacancy on the Supreme Court, President Trump will be calling him again.
This week on ‘Firing Line.’

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My guest today has been seen by many conservatives as President Trump’s Supreme Court whisperer.
To many liberals, he is a legal Svengali whose influence could degrade the civil rights of all Americans.
Leonard Leo has been serving as President Trump’s adviser for Supreme Court nominations.
He will soon resume his position as the Executive Vice President of The Federalist Society, which magazine called ‘The conservative pipeline to the Supreme Court.’
It’s the LinkedIn for conservative lawyers.
The Federalist Society provided a short list of potential Supreme Court Justices to President Trump.
Brett Kavanaugh and Neil Gorsuch both came from that list.
Perhaps the Federalist Society’s greatest influence is on its very interpretation of the Constitution.
The group embraces originalism, a method of constitutional interpretation that emphasizes applying the words as they originally written in the Constitution.
It is at the juncture of traditional values and liberty, the frequently bloody battleground of the culture war itself, where originalists and the Federalist Society find themselves embroiled in controversy, a controversy that recently transformed the Supreme Court confirmation process into political chaos and enflamed an already deeply divided electorate.

HOOVER: Leonard Leo, welcome to ‘Firing Line.’

LEO: Great to be here.

HOOVER: You have had quite a week, where you have finally successfully ushered through the nomination of Brett Kavanaugh after a very contentious political fight.

LEO: Probably the most contentious Supreme Court confirmation we’ve had in history.

HOOVER: Brett Kavanaugh was really the second judicial nominee that you successfully ushered through.
Both Neil Gorsuch and Brett Kavanaugh you were very involved with.
But the Federalist Society has also been involved in two other successful Republican appointments to the Supreme Court — both Chief Justice Roberts and Justice Alito.
How did you end up in the position of directing and guiding and advising the president of the United States on his judicial appointees?

LEO: I have no idea.
[ Chuckles ] What I do know is that the Federalist Society distinguished itself as an institution that was a magnet for some of the best legal talent in the country.
And so I think presidents naturally looked to the Federalist Society for that kind of talent.

HOOVER: Yeah, it’s my observation, as somebody who was in the Bush administration from 2004 to 2006, during the nomination process and the confirmation process of Chief Justice Roberts, that while the Federalist Society was quite influential in that period, in this process, it has really seen an apex of its influence.

LEO: I think that’s true.
I mean, the fact of that matter is that we’re much larger than we were then, and many of our members have come of age.
They’ve now had careers of 20 years or so, where they’ve really distinguished themselves.
So this is no longer just a ragtag group of largely law students, you know, and young lawyers but some very distinguished people.
And so I think all of that has sort of culminated in getting a lot more attention by presidents and White Houses when it comes to judicial selection.

HOOVER: My observation, too, is that, in a way, you’ve been able to offer up and provide a set of services that the White House wasn’t really prepared to do itself.
So, in a way, they’ve just been able to outsource to you, and they’ve been very transparent about that.
There’s sort of no pulling the wool over the American people’s eyes.
President Trump was quite straightforward about wanting to appoint the kind of judges that were on a list that you helped him provide from the beginning.

LEO: It’s been the most transparent judicial selection process I’ve ever seen, in the sense that the President made it very clear what he wanted, generally speaking, he made it very clear what people he was looking to pick, and he appointed a whole bunch of people in the White House who are Federalist Society members who share his judicial philosophy.
In fact, the White House counsel, Don McGahn, once jokingly remarked that ‘We didn’t outsource this business, we insourced it.’
We just brought everybody from the Federalist Society inside the White House.
And there is some degree of truth to that.
The White House Counsel’s Office, which does this work, is almost fully populated by people who have cut their teeth on the Federalist Society and its debates and its philosophical work.

HOOVER: This has been the most contentious political nomination process that we’ve seen yet.
How did it become so political?

LEO: Well, as a court gets more involved in itself being a political institution by looking to outcomes and to predetermined outcomes in cases, that is naturally gonna lead to a confirmation process where senators begin to question nominees about what the outcomes are gonna be, because that’s what the Court’s in the business of doing.

HOOVER: But this process, Democrats were quite angry about because of the hang-over from Merrick Garland not getting a vote.

LEO: Well, I think it was partly that.
But I think if you took Merrick Garland out of the equation, this would’ve been a pretty darn contentious process, anyway, because this is a Court that is pretty evenly divided, lots of 5-4 decisions in a lot of critical areas.
So let’s not kid ourselves.
It’s not just about Merrick Garland.
It’s about a set of outcomes that the Democrats want in the Supreme Court, and they can only get it if they have a five-vote majority.

HOOVER: What are those outcomes?

LEO: Oh, they want to control outcomes in areas like privacy, gun control, presidential power, growth of the administrative state, criminal procedure — a lot of the sort of flash points in American social, political, and cultural life.

HOOVER: What do conservatives want?

LEO: What conservatives want is a jurisprudence that’s not constantly looking at outcomes but instead looking at method and basically understanding that the role of a court is to interpret the laws its written and to provide as much space as possible for political institutions to do what the Constitution empowers it to do, which is to make most of the really big policy decisions in American public life.

HOOVER: One of the things that happened in this process was that Brett Kavanaugh had to defend his integrity against an allegation that was ultimately unprovable, but in his defense of himself, he became quite political.
Did he, in some way, in those moments, contribute to the politicization of the nomination process?

LEO: I don’t think so.
I think that what the American people saw was a political smear campaign.
And I think the way Judge Kavanaugh reacted was what people naturally would’ve expected.
He acted as any individual naturally would, and I don’t think most people — most sensible people — would view what he said as deeply partisan or political.
I think he was looking for decency and fairness.

HOOVER: With the one exception of mentioning that this was payback for the Clintons.

LEO: [ Chuckles ] Um… I don’t think that the future of the confirmation process and its politicization is going to hinge on a single line like that.
The fact of the matter is that, go back to Clarence Thomas’ second hearing involving the Anita Hill allegations.
You could characterize those as deeply political, because, basically, what he was saying is that the liberal establishment was telling a black conservative, ‘You need to stay on our plantation.’
I mean, that’s essentially what he was telegraphing in his opening statement.

HOOVER: Well, he called it a high-tech lynching.

LEO: So, people could say, ‘Well, that’s a deeply political comment about the left’s view of race relations in America.
Well, maybe it is.
But the fact of the matter is that the Democrats, the liberals in the Senate, set this process in motion.
They made it a deeply partisan political battle, and, therefore, sometimes the natural response is gonna be a little bit of a more partisan political answer, but that doesn’t corrupt the process.
What corrupts the process is the origination of this, right?

HOOVER: Which is what?

LEO: The desire to appoint justices based on predetermined outcomes in cases.

HOOVER: Do you lament at all that we’ve gotten to a place where hyper-partisanship and the polarization of the judiciary now has brought the Court to a position where it has been entirely subsumed in the way that the other two branches of government have been and that it risks eroding the faith that American people have in the third branch of government?

LEO: There’s always a risk of that.
I don’t think we’re there yet, and I think we’re not there because of the Court and its members.
Fortunately, right now, the Court’s members are very intellectually rigorous, they really strive to get it right.
You can disagree with them, but they are collegial.
And so, so far, I think the members of the Court have been able to preserve the integrity of that institution.
But as these external pressures continue to build and put outside pressure on the institution, that may not be enough.
If we have to go through two or three or four more of these brutal escapades, that is going to have a very negative effect on the court.

HOOVER: Much has been said about the short list of prospective Supreme Court Justices that you and others helped develop.
Can you start to describe the characteristics that you look for in judges that make them qualified to be on a list for President Trump?

LEO: Sure.
There are three essential qualities.
One is extraordinary intellectual caliber, which normally is demonstrated through their record.
Secondly is a commitment to the Constitution the way the Framers meant it to be, and that means interpreting it according to its words, its original public meaning, but also understanding that there is an inextricable relationship between the structural features of our Constitution that limit government power and the preservation of freedom and human dignity.
It’s a very important part of the process, finding people who believe that.
And then, thirdly, and maybe most importantly, is courage.
You know, there are lots of really smart people, Margaret, who can serve on the U.S.
Supreme Court — dozens and dozens — but you need people who have courage, people who are willing to do what’s right, no matter what’s gonna happen, in terms of the court of public opinion.

HOOVER: I don’t think it’s a stretch to say that, since 1974, implicitly, part of every judicial nomination process has been about Roe v. Wade and that balance between precedent and what is in the Constitution.

LEO: Absolutely.
Discussion about Roe v. Wade has eclipsed, outsized almost every other area of jurisprudence and constitutional law in the confirmation process, and, frankly, to the detriment of having a really thoroughgoing confirmation process where you talk about lots of other areas of the law that are extremely important in American life.
That has been a distortion of a discussion about constitution law now since, as you say, 1973 or ’74.
So, that’s a big part of what one deals with now in the confirmation process.

HOOVER: You know, conservatives used to discuss Roe v. Wade in the context of a confirmation process, and what conservatives always used to say is, ‘There is no litmus test, right?
We’re not gonna have a litmus test for judges through the confirmation process.’
And the thing that’s different now, it seems to me, is that we have a Republican president who is determined and declared that there is a litmus test for judges.
He has said that he will appoint judges who will vote to overturn Roe v. Wade.

LEO: Look, at a practical political level, any time presidents say things like that, it complicates a confirmation process.
The reality is that every president, going back to Ronald Reagan, if not before, has operated under a Republican party platform that basically said that.
So it’s nothing new.
The more important question is how the confirmation and nomination process works in practice.
And it is true, for this administration and for every administration I’ve ever dealt with, that you don’t ask questions about Roe v. Wade or any other case that the court may have to decide or any other precedent that it may have to review.
But ultimately, the process that I’ve witnessed over the past 20 or so years is one where there hasn’t been a conscious effort to find people who are going to Wade.
And by the way, presidents who try to find justices who are going to decide certain cases in certain ways are very likely to get it wrong, because the human mind is too complicated and cases are too varied to make those kinds of judgments ex ante.
It’s extremely complicated.

HOOVER: What percentage of Federalist Society members, do you think, are pro-choice and want to see Roe v. Wade upheld?

LEO: I have no idea.
If I had to guess, I would say a very large number of Federalist Society members probably view Roe v. Wade as wrongly decided.
When you ask the second question, which is, ‘Well, does that mean it should be overturned?’
I don’t know where a lot of our members would stand.
I think many, many of our members, however, and I would include myself among them, believe that, at the end of the day, the abortion issue’s not gonna be resolved by the Court.
At the end of the day, what we’re seeing, culturally, in our country is cultural and social decisions being made about the practice of abortion, and that, ultimately, is where this is gonna be decided.
It’s not gonna be decided by the Court.

HOOVER: But when President Trump says he’s going to appoint nominees that are going to overturn Roe v. Wade, what percentage of people on the list that was provided to him were affirmatively in favor of overturning Roe v. Wade?

LEO: The first 21, not a single one of them said anything about overturning Roe v. Wade.
Only one that I remember had anything to say about Roe v. Wade.
There was one on the list who called it an abomination, but then, during his confirmation hearing for the Board of Appeals made it clear that that was sort of a political statement and not something that he would do as a judge.
He understands that he has to respect precedent.

HOOVER: I think what we get at — right? — on the Republican side and the conservative side is, there is — there’s a little bit of theater that goes on around Roe.
And if the president says he’s gonna appoint people that are gonna overturn it, how then do you present a list that has no information about people’s views bout Roe v. Wade?

LEO: Let’s step back for a minute.
Here’s the problem.
The problem is that, at the end of the day, what conservatives are saying is, we believe in a court that has judges that are neutral arbiters and that are going to have to use a neutral method of interpretation.
And what we’re looking for are jurists who basically are going to interpret law according to text, original meaning, structure, history, tradition, due regard for precedent.
And that we don’t look to outcomes.
And my guess is the left doesn’t believe us.
So, we’re at this stalemate where we have a view of the proper role of the courts, and we have a theory of neutral interpretation, and some on the left just don’t believe that.
Go back to Justice Scalia and what he said.
If you really care about dignity and if you really care about freedom, then what you want is you want the enforcement of constraints on government power.
Because any tin-ear dictatorship, any empire can have a Bill of Rights that’s miles long, but if they don’t have structural limits on government power that are enforced by courts, those are parchment barriers — mere parchment barriers.
That’s why, at the end of the day, I think people should take at face value what conservatives say about originalism and our lack of interest in outcome-based decision-making.

HOOVER: All right, so let’s go back to originalism.
You defined it.
It’s interpreting the Constitution as the Founders intended it.
Justice Scalia talked about textualism and originalism, right?
What’s the difference between the two?

LEO: There’s not a lot of difference.
Basically, textualism is really a subset of the originalist enterprise.
So when you think about originalism, it’s interpreting the words according to their public meaning.
Not what a particular Framer thought but according to their public meaning.
It’s looking at the structure of the document and making sure that, as you interpret those words, those words mean things that don’t conflict with other provisions in the Constitution.

HOOVER: Conservatives have had a view that there is a certain and a proper role the Court should play in society and in the context of government, that the Court shouldn’t legislate from the bench, that federalism is the preferred method of social change.
Conservatives have been articulating these views for a long time.
I’d like to show you William F. Buckley articulating these points.

[BUCKLEY]

HOOVER: All right. So, this was in 1966.
So, in 1966, you begin to see the articulation of a conservative view about the Court’s overreach and that the Court should be doing some things but not other things.
So, can you explain or reflect on the history that led conservatives to create these arguments which has, frankly, led to this prevailing view — fast-forward 30 years — of originalism and the sort of guiding philosophy behind the Federalist Society.

LEO: Well, there were really two phases to it.
The first phase were situations where the Court was creating rights that people couldn’t find in the Constitution or eliminating rights that clearly were there, and that’s what Buckley was talking about on that clip you showed.
The second phase was — and this is why I don’t like the term judicial activism.
The second phase is, the court has a duty to enforce the limits on government power contained in the Constitution — separation of powers, federalism, checks and balances.
And that, really, is the most important bulwark for protecting freedom and dignity.
You want to make sure that those limits on government power are respected and enforced.
Conservatives chafed at the role of the Court initially because it was creating all these rights they couldn’t find in the Constitution.

HOOVER: ‘Cause it seems to me that that articulation really was in response to overreach of the Warren Court.

LEO: It was mostly the Warren Court, at least in modern times.
This wasn’t the first time in history that the Court was creating rights that weren’t there.

HOOVER: But in the modern era…

LEO: But in the modern era, it started with the Warren Court.
And what the Warren Court and the Burger Court basically did was, they made rights out of whole cloth, they impinged on the prerogatives of the states and the idea that power devolves downward, and they declined to enforce what we call the structural Constitution.
And that was a double whammy for freedom, and that was the problem that conservatives were addressing.

HOOVER: You just said they were making up rights.
In the Warren Court, especially in the early years, what rights was the Warren Court making up?
Which cases?

LEO: Well, to give you a great example, the Miranda warning — okay? — was completely made up by the Court.
It’s nowhere to be found.
And, you know, there were other aspects to the right of privacy that were largely created and could not be found in any particular part of the Constitution.
But I would say that in the area of civil rights and race, those are areas where I think you can square a number of the Court’s decisions with the 14th Amendment.
So it’s complicated.
The left likes to caricature objections to judicial activism by saying that we don’t like any of the results from the Warren Court, and that’s not actually true.

HOOVER: Right. Well, let’s think about issues that are coming down the pike that we know that this Court is likely to consider.
How would affirmative action be settled?

LEO: Well, that’s a case that the Court is likely to hear over the next couple of years, and I think that, for the most part, originalists look to the Constitution as being a colorblind document.

HOOVER: How about religious freedom?

LEO: There are, I think, two touchstones to originalism, with regard to religious freedom.
One is the idea that, at some level, religion is accommodated in the public square and has been, going back to the Founding era.
And secondly, that conscience rights — rights of conscience, rights of belief — need to be protected, which means that you want to be very careful about compelling people to do things that they find offensive on the basis of conscience.

HOOVER: Because of this process and how partisan it became, for a significant portion of the American people, Brett Kavanaugh enters the Supreme Court as a tainted member of the Court, fairly or unfairly.
The left, their view about Kavanaugh and the way to get back at this process, you’re beginning to hear voices — mainstream, liberal voices — suggesting the only way to take the Court back is court packing.
Do you have any reflections on that and how we could de-escalate the partisanship and the pluralization of the nominations process?

LEO: Well, for one thing, I think we have to remember that judges wear black robes for a reason.
They wear them because their identity is meaningless in the work that they do.
We’re supposed to basically judge a judge’s work by its rigor and its coherence.
And I think the more people focus on the work product of the Court, the work product of each justice, the more likely we are to maintain that institution’s legitimacy.
So people should judge Brett Kavanaugh’s work, for example, by virtue of the opinions he writes and whether they’re coherent and rigorous and fair and objective.

HOOVER: Is there any consideration or thought that term limits might help, even if it’s a long term limit — a 15-year term limit or a 20-year term limit, a 10-year term limit — that that might help take the hot air out of this polarized nominations process?

LEO: It’s a tough game to figure out whether term limits is a net gain if you’re an originalist or a constitutionalist or whether it’s a net loss.
It’s hard to know.
And as a conservative, I’d just prefer to stick with what we have.

[ Chuckles ]

HOOVER: All right, so if we get to 2020, and with the end of President Trump’s term and yet another vacancy becomes available, what do you suppose will be the correct recommendation, in terms of proceeding with a nomination and a vote to the Supreme Court?

LEO: If a vacancy occurs in 2020, the vacancy needs to remain open until a president is elected and inaugurated and can pick.
That’s my position, period.

HOOVER: From President Trump’s perspective, though, do you think that he will sort of honor that precedent?

LEO: I think he should.
And, you know, I — I mean, I don’t know.
I’ve never asked him.
But I think — I think he should.

HOOVER: Would you advise him to?

LEO: I would.

HOOVER: Leonard, thank you for joining me here on ‘Firing Line.’

LEO: Thank you, thank you.
Good to be here.

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