Supreme Court Justice Samuel Alito issued a rallying cry to conservatives Thursday in the wake of newfound strength following Donald Trump‘s election.
Alito told the Federalist Society conference of conservative lawyers, judges and legal thinkers that religious freedom and gun rights are among “constitutional fault lines,” important issues at stake in the federal courts.
He did not mention the election or the vacancy that was created by the death last February of Justice Antonin Scalia – an opening Trump will now fill. Alito paid tribute to Scalia, a longtime colleague and conservative ally in high court battles on hot-button social and political issues.
Scalia, an early adviser to the Federalist Society and a hero to many of its 40,000 members, is sorely missed on the court, Alito said at the group’s meeting in Washington. “We are left to ask ourselves WWSD,” what would Scalia do, Alito said. The lettering is a play on the phrase “WWJD,” for what would Jesus do.
The court has been operating with eight justices since Scalia’s death because Senate Republicans blocked action on President Barack Obama’s nomination of Judge Merrick Garland.
Alito, Justice Clarence Thomas and nine judges on Trump’s list of potential high court picks were on the schedule at the conference, which has turned into an impromptu job fair for spots in the new administration.
“The mood has changed. Everyone is going to be thinking, ‘Maybe someone here is going to be filling Justice Scalia’s shoes,'” said Abbe Gluck, a Yale Law professor who is not a member of the group but will participate in the conference.
The Federalist Society got its start on college campuses when Ronald Reagan was in the White House. It was conceived as a way to counter what its members saw as liberal domination of the nation’s law-school faculties. Its influence was pronounced during the presidency of George W. Bush, when its leaders helped rally support for Senate confirmation of Alito and Chief Justice John Roberts. The group was so successful that it spawned copycat liberal organizations.
Speaking at a Federalist Society event in the Bush years was akin to an out-of-town preview of a Broadway show for conservative lawyers looking for administration jobs or judgeships, author Mark Tushnet has written.
Over the past eight years, the group provided a forum for opponents of President Barack Obama‘s court choices and policies, although the Federalist Society itself does not endorse candidates or take policy positions. Some of its leaders backed Senate Majority Leader Mitch McConnell‘s refusal to act on Garland’s nomination. That political strategy paid unexpected and huge dividends for conservatives with Trump’s election.
The society’s star again appears to be on the rise.
“Anytime there’s a major shift in the power of government, it’s an enormous opportunity for what is probably the collection of the smartest, most talented and most publicly minded lawyers in the country to roll up their sleeves and help advance the cause of constitutional government,” said Leonard Leo, the group’s executive vice president.
Leo met with Trump in New York on Wednesday and said afterward that Trump has yet to pare down his long list of names of Supreme Court hopefuls.
Among those candidates are nine who will take part in panel discussions in the next few days: state Supreme Court Justices Allison Eid of Colorado, Joan Larsen of Michigan, David Stras of Minnesota and Don Willett of Texas, and federal appellate judges Steven Colloton, Thomas Hardiman, Raymond Kethledge, William Pryor and Diane Sykes.
The group says 90 percent of its money comes from individuals and foundations, the rest from corporations. Charles and David Koch, Google and Microsoft are among donors who gave $100,000 or more, according to the society’s annual report for 2015. Trump campaign manager Kellyanne Conway and her husband, George, gave between $50,000 and $100,000. George Conway is a New York lawyer and Federalist Society member.
When Scalia and Thomas were criticized for speaking at private dinners hosted by Charles Koch, the court said that travel and lodging expenses were paid not by Koch but by the Federalist Society.
The close ties between the group and federal judges have frustrated Democratic officials and liberal interest groups. During the Bush years, Democratic Sen. Dick Durbin of Illinois complained that membership in the Federalist Society was “the secret handshake” of Bush court nominees.
Nan Aron, the president of Alliance for Justice, said the Federalist Society “promotes a way of looking at the law which upholds the rights of the powerful and the wealthy.” Aron said it is “regrettable that so many nominees on Trump’s list are going to attend Federalist Society events.”
Yet a conservative legal scholar who has been critical of Trump said the group’s involvement in identifying candidates for judgeships and other jobs in the new administration is not something to fear.
“In fact, if the Federalist Society does play a role in identifying the president-elect’s nominees, that could be comforting to some who have reservations about Donald Trump’s administration, because such a role would suggest, at least in this area, continuity with longstanding, mainstream Republican practice,” University of Notre Dame law professor Richard Garnett said in an email.
Republished with permission of the Associated Press.