More than three decades ago, a group of conservative aspiring lawyers launched a new legal movement to counter their perceptions of law schools and the judiciary as liberal leaning.
Now, The Federalist Society for Law & Public Policy Study’s Wisconsin chapter is poised to reshape courtrooms throughout the state with the help of Gov. Scott Walker.
Each of the two justices Walker appointed to the state Supreme Court, Rebecca Bradley and Daniel Kelly, were past presidents of the Milwaukee Federalist Society chapter.
Walker also has appointed at least a handful of lawyers with philosophies aligned to the Federalist Society to appeals court and circuit court judgeships, judicial observers say.
And Michael Brennan, a Milwaukee lawyer who created the Milwaukee chapter more than two decades ago, heads Walker’s judicial advisory selection committee.
“I think the governor is very interested in knowing what a candidate’s judicial philosophy is and I think he is more inclined to appoint people who are textualists and originalists and that point of view is associated with the Federalist Society,” said Wisconsin Institute for Law & Liberty president and general counsel Rick Esenberg.
That means Walker has shown he looks for lawyers and judges who use an interpretation of the U.S. Constitution that relies on the literal meaning of words rather than interpreting a law’s intention.
“I have had applicants for judicial appointments tell me of their plans to tout their active membership in that organization to the governor as one of their qualifications for appointment,” said Ed Fallone, a Marquette University Law School professor and former Supreme Court candidate.
Tom Evenson, spokesman for Walker, said in filling judicial vacancies, Walker looks for someone “who is an outstanding attorney, has integrity, and understands the proper role of a judge.”
“The governor looks for applicants who will adhere to the rule of law and have a commitment to a textualist, and originalist, judicial philosophy,” Evenson said.
The nonprofit Federalist Society was created in the early 1980s by college students who believed law schools were controlled by professors who taught that a judge’s role was to help shape public policy instead of to apply a strict interpretation of law and the U.S. and state Constitutions.
It now describes itself as a “conservative and libertarian intellectual network” with influence in all areas of law and focused on “reordering priorities within the legal system to place a premium on individual liberty, traditional values and the rule of law.”
The group’s national website notes the organization has more than 60,000 members and is “committed to the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”
It does not take policy positions or give money to candidates, it says.
Liberal lawyers acknowledged the group’s effectiveness, and expressed mixed views.
“Their own website says they have redefined the terms of legal debate and I think that’s indisputable,” said Jeff Mandell, a Madison lawyer who is president of the city’s chapter of the liberal-leaning American Constitution Society for Law and Policy. “Not in any way that is improper — they promote and popularize ideas by networking and holding events where they can share and refine new thoughts and ideas. We now see many of those ideas that either are products of or were popularized by the society percolating through policymakers on the bench.”
But Craig Mastantuono, president of the American Constitution Society for Law and Policy’s Milwaukee chapter, said Federalist Society claims that it is an answer to activist liberal judges are “baloney.”
“The Federalist Society is the developmental league for the takeover of the conservative movement in the judiciary in the United States and they’ve been quite effective in getting the far right into positions of power in disproportionate numbers in the state and federal judiciaries,” Mastantuono said. “It’s an activist movement. It’s an organized takeover. The effect is that big business and the wealthy will continue to control the outcome of decision making in our courts.”
Jenni Dye, research director of the liberal group One Wisconsin Now, said Walker’s approach of appointing judges who are Federalist Society members or align with the group’s principles goes beyond endorsing judges who interpret law as it is written.
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“The conservatives have one goal: Attaining power in the courts to actively rewrite the laws to fit their corporate and radical social agendas,” Dye said.
She pointed to $4.8 million sent to the national Federalist Society since 2005 from the conservative Bradley Foundation, which was recently headed by Michael Grebe, former campaign chairman for Walker.
The Bradley Foundation in 2009 also gave the organization one of its four annual highly coveted $250,000 prizes.
used in campaign
The debate over judicial philosophy was key to the 2016 Supreme Court race between Bradley, who had already been appointed by Walker to fill a vacancy, and state Appeals Court Judge JoAnne Kloppenburg.
Kloppenburg often criticized Bradley for her tenure as president of the Milwaukee chapter of the Federalist Society, characterizing the organization as a group that promotes and pushes a conservative agenda. Kloppenburg declined through a spokeswoman to comment.
Bradley, who won, said in an interview she has been a member of the Federalist Society since she was in law school at UW-Madison in the early 1990s.
“My interest in it stemmed from the judicial philosophy and the organizing principles of the organization because in a lot of law schools for decades, law students were taught that there was a role to play in the judiciary in creating or initiating social and political change ... if a Legislature doesn’t act on something, then the judiciary can take it into its own hands,” said Bradley.
Bradley made these principles a focal point of her campaign. She often cited the 1989 Texas v. Johnson case on the campaign trail, in which the late U.S. Supreme Court Justice Antonin Scalia’s joined the majority in the court’s decision to uphold a citizen’s right to burn the American flag, despite being personally opposed by doing so, illustrating the judicial philosophy of relying on set law in making judicial decisions.
Mastantuono said Federalist Society members and their supporters have created a false debate about judicial philosophy.
“This activist versus strict constructionist battle that’s been put into the public consciousness is a false battle,” said Mastantuono. “It’s naive to think there’s one side, that wants to do nothing ... and one that wants to take over the world. Of course there’s two sides to that spectrum that want to accomplish (their) goals.”
Rob Driscoll, president of the Milwaukee chapter of the Federalist Society, said the organization seeks to foster discussions about legal issues and applying a strict originalist interpretation of the law.
“We’re not a partisan organization … we don’t endorse candidates. We don’t lobby legislation. It’s really a debating society,” said Driscoll.
Driscoll said the practical impact of having more judges holding this philosophy means fewer judges will decide on what they feel is best for the state, or the country.
Kelly, who was president of the Milwaukee chapter of the Federalist Society when he was appointed to the high court, also rejected any suggestion that the organization is politically motivated.
“I’ve heard that before and I never understood why they perceive it that way,” said Kelly. “It’s a group of like-minded folks who get together and talk about what they care about.”
Mastantuono said the impact of the Federalist Society’s influence is judges who will side with conservative interests, such as loosening regulations of businesses and ruling against the interests of labor unions.
Ryan Owens, a UW-Madison political science professor who specializes in judicial issues, said the effect of Walker’s preference of appointing judges with Federalist Society ties only signals “a commitment to a more conservative judicial principles.”
Fallone, who was backed by liberal-leaning groups when he unsuccessfully ran against Chief Justice Patience Roggensack in 2013, said if any legal society has become a funnel for judicial appointments, it could contribute to an already worrisome lack of philosophical and career diversity on the bench.
Fallone said if membership in the organization has become “a de facto qualification for appointment to the state judiciary, then the fault lies with our governor and not with the Federalist Society.”