It is the contention of this author that the process which leads to judicial capture constitutes an act of defrauding the United States, by depriving the American people of their right to a free and independent judiciary. To reiterate a few key points from the first article in this series.
- It appears that the Federalist Society is engaged in a criminal conspiracy to undermine the Federal Court system.
- Those activities constitute violations of 18 U.S. Code § 371 - Conspiracy to commit offense or to defraud United States and 18 U.S. Code § 1031 - Major fraud against the United States.
- For the purposes of this article, we are referring to the definition of "defraud the government" outlined in two Supreme Court cases: Hass v. Henkel, 216 U.S. 462 (1910), and Hammerschmidt v. United States, 265 U.S. 182 (1924). Additional information on the application of these two standards is published in Department of Justice Guidance for Prosecutors.
- That a partisan judiciary is a threat to freedom and in opposition to the sentiments of the Founding Fathers is without question. James Madison and Alexander Hamilton warned repeatedly about the dangers of political factions, and the threat of a partisan judiciary in Federalist Papers 10, 78 and 81. Citations from those three documents will be seen throughout this series of articles.
Prosecutors developing cases against the Federalist Society should make use of the phrase "Judicial Capture" as it is an excellent example of "intuitive language", in that it provides an immediate frame of understanding for a judge or jury. The act of capturing something is the act of gaining control, and that is a perfect representation of what wealthy Federalist Society donors appear to be attempting with the Federal Judiciary. Prosecutors should also note that no judge who is affiliated with the Federalist Society can ever preside over a proceeding related to the topic of judicial capture by the Federalist Society. The Federal code of Judicial Ethics states that no judge can hear a case if that judge has close ties to one of the parties in the proceeding. This is a natural extension of the Common Law principle that "no man may judge his own cause". Given the high degree of professional grooming and sponsorship that precedes an individual being recommended by the Federalist Society to GOP Senators for placement on a Federal Court seat, there is simply no way that a judge who is affiliated with the Federalist Society can make a credible claim of impartiality.
There is no question that a President has a legal right to choose judicial appointees as he or she sees fit. However, when the Federalist Society has built a machine for the purpose of grooming judicial appointees, rewarding them with advancement for the consistent expression of conservative ideology, and coordinates with a political party to appoint justices that come exclusively from that one organization, then that organization is guilty of defrauding the people of the United States of their right to a free and independent judiciary. In Federalist Paper #81 Alexander Hamilton warned that:
"The members of the legislature will rarely be chosen with a view to those qualifications which fit men for the stations of judges; and as, on this account, there will be great reason to apprehend all the ill consequences of defective information, so, on account of the natural propensity of such bodies to party divisions, there will be no less reason to fear that the pestilential breath of faction may poison the fountains of justice. The habit of being continually marshalled on opposite sides will be too apt to stifle the voice both of law and of equity."
That many Americans would shudder at the thought of having the validity of our nation's laws decided by the most staunchly partisan members of Congress is without question. When Hamilton speaks of "the ill consequences of defective information", he is warning of the dangers of putting too much stock in vitriolic party rhetoric. Such a warning is incredibly prescient in a situation where you have conservative members of Congress eagerly repeating conspiracy theories and propaganda, and you have an organization that appears to have adopted a practice of proposing individuals for the Federal bench based upon their willingness to accept and repeat that propaganda. Brett Kavanaugh's confirmation hearing, during which he promised to use the authority of his position to exact "revenge" on the Democratic Party is a perfect example of "the pestilential breath of faction". No one who seriously considers the Federal Bench an appropriate forum for exacting partisan revenge on the opposing political party has any business being a judge.
The selection process that the Federalist Society employs is not consistent with the preservation of a functioning Democracy, and the organization's leaders must face a penalty for the on-going damage that their actions have inflicted upon the United States. There is no doubt that after this essay is published that members of the Federalist Society will point to past examples of political alignment between Presidents and judicial appointees to fuel a wave of tu quoque and false equivalency to the tune of "Democrats do it too!" but those claims should be ignored. The key difference between Democrats and Republicans is that Democrats nominate judicial candidates from what may be called the "open meritocracy", whereas Republicans, via the Federalist Society, have taken to nominating judges from a close-knit ideological fraternity, where advancement within the society appears to be based upon the consistent expression of conservative viewpoints, and a sense of confirmation bias so powerful as to render comprehension of liberal viewpoints impossible to the Society's most carefully groomed candidates.
When we refer to the "open meritocracy", we mean the world as it exists for the average person. Lawyers who find their way through the world independently will have numerous professional ties throughout their careers; they may choose to participate in alumni events at the university they graduated from; spend time working with various firms; have personal and professional ties with neighbors and co-workers; and are part of professional organizations. However, there is no group that mentors them throughout their entire career, and their progress throughout that career is based upon the quality of their work and devotion to the rule of law. This combination of experiences tends to create a well-rounded individual who is capable of seeing multiple sides of an argument, who can interpret legal precedent, and who is capable of evolving both personally and professionally.
The Federalist Society is quite different; the organization appears to function as an ideological distillery. Law students are invited to participate in Federalist Society events on college campuses all across the country. The organization's website boasts that: "The Student Division includes more than 10,000 law students at all of the 204 ABA-accredited law schools as well as 10 additional chapters based at non-accredited law schools, satellite campuses for ABA-accredited schools, and a few undergraduate institutions." The website also mentions that "The Lawyers Division is comprised of over 65,000 legal professionals..." and that the organization includes a faculty division, although it does not mention how many professors are included in that part of the organization. The organization's huge size gives it access to a tremendously large pool of prospective law students, and a review of the careers of Federalist Society judicial nominees suggests that membership is rewarded with faculty mentors, preferential treatment in obtaining clerkships with judges who are also Federalist Society members, easy access to professors who will write letters of recommendation for young law students, and entry-level careers with firms owned or managed by Federalist Society members.
An "ideological distillery" basically operates like a cult or mass movement. Those individuals who are most fervent in their expression of conservative ideology reap all of the benefits the organization has to offer. Those who are capable but less fervent in their conservatism will likely find that while they are permitted to attend Federalist Society events, they aren't exactly "embraced" by the organization, and they will not receive the same benefits and support that the most ardently conservative students do. The advantage of this kind of system is that it tends to draw out the most ideologically ardent members of a student population. The downside is that the most capable law students end up being pushed to the fringes of the organization. The ideal prospect for an ideological distillery is someone who grew up in what psychologist George Lakoff calls the "strict father model", and who puts the prospect of career advancement, and access to financial prosperity above all other concerns. The "ideal" Federalist Society candidate is also someone who scores highly on the "F-scale", a means of evaluating someone's susceptibility towards fascist ideology. They will also demonstrate what psychologist T.W. Adorno described as "a profound intolerance for the ambiguities of everyday life". Prosecutors should not focus attention on trying to find evidence of psychological evaluation tools, or ask suspects if they grew up in a "strict father household", as it is unlikely that Federalist Society leaders are aware of any of these materials. As far as Federalist Society members go, their top prospects are just people who "get along" and "have moral thinking". Mention of psychological aspects of ideal prospects for an organization like the Federalist Society is just to provide future prosecutors with information about how to quantify the behavioral traits of the community being investigated.
Leonard Leo, a Federalist Society co-chairman is an informal adviser to President Donald Trump, and has been linked to a dark money group that promotes conservative political causes. This kind of behavior is troubling, given that the Federalist Society pre-vetted all of the conservative judges that were confirmed by the Republican dominated Senate during Trump's time in office. It is inappropriate for a co-chair of an organization which vets judicial nominees on behalf of a political party to be involved in the transfer of dark money contributions. That kind of unethical behavior suggests that there could be many cases that will have to be reviewed because of improper rulings by Federalist Society judges on the issues of campaign contributions or ad spending. This kind of offense goes to the heart of Alexander Hamilton's warning, when he quotes Montesquieu in Federalist 78 that: "...there is no liberty, if the power of judging be not separated from the legislative and executive powers." While there are many lawyers in Washington DC who are involved with Political Action Committees and the transfer of funds, an individual who is head of an organization that has taken on the role of vetting Judiciary candidates for a political party should immediately recognize the conflict of interest inherent in such behavior, and decline to participate in any handling of dark money contributions. Failure to recuse oneself from such activities demonstrates a profound lack of judgement, and that lack of judgement suggests that individual should be deemed unfit to participate in the selection of Federal judges. There is a principle in common law that no judge may preside over a case where the judge is a co-conspirator of the parties before the court. For the sake of judicial integrity, it is necessary to either remove Leo entirely from the judicial vetting process, or provide a comprehensive list of contributions that his organization has made. Failure to pursue such action would undermine the credibility of the Federal Judiciary. There is even the possibility that many Federal Court rulings may have to be thrown out, because it is discovered that the judge who presided over the case was selected by someone involved in funneling large sums of money to Political Action Committees. This is a topic that investigators must devote a great deal of time to, as failure to pursue such conflicts of interest undermines the integrity of the entire Federal Judiciary.
Prosecutors involved in investigating the Federalist Society should review the Captured Courts series of reports issued by the Senate Democratic leadership. Those reports outline how the Federalist Society has facilitated the capture of the American Court system, and how organizations like the NRA have been able to benefit from the appointment of staunch conservatives to State Supreme and Federal Court benches. We will begin reviewing highlights of those Senate reports, as well as other materials from government watchdog groups and the news media in next week's article: Following the Money.
Image credit: Svenska: Library of Congress Prints & Photographs Collection
https://www.loc.gov/pictures/resource/thc.5a38122/
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