Now this is interesting, and it came in on an email that I missed a week or so ago. Senator Sheldon Whitehouse, Democrat of Rhode Island, is going to war with the Federalist Society, and that particular wingnut legal terrarium is not happy about it. In December, Whitehouse spoke to the National Press Club on the subject of dark money’s influence on the judiciary.

The Supreme Court is now enmired in dark money. Dark money influences the selection of the justices. Dark money funds political campaigns for their confirmation. Cases are brought to the Court not just by regular real litigants, but by dark-money funded litigation groups that shop for, or manufacture, plaintiffs of convenience to bring strategic cases before the Court. The Court is swarmed with amicus groups funded with dark money (in one Supreme Court case, an anonymously-funded group backed 13 different amicus briefs). And because the Court has no ethics code and is so secretive about reporting gifts, travel and other emoluments, we don’t know whether these dark money groups aren’t also funding the justices’ social lives.

It is urgent and proper that we know who these dark money donors are, so we can evaluate what business they have before the Court, so we can root out conflicts of interest and partisan or corporate bias. No Court should be so enmired in dark money.

After this, as Whitehouse pointed out on Medium, at the end of January, the Committee of Codes of Conduct, an advisory body tasked with producing advisory opinions on matters of judicial ethics, circulated a draft opinion in which the committee differentiated for ethical purposes membership in the American Bar Association from membership in organizations like the left-allied American Constitution Society and, of course, the Federalist Society. In both cases, the committee concluded that the purposes of the two groups was sufficiently political as to raise ethical problems for any federal judge who took a leadership role in either one. Of the Federalist Society, the committee wrote:

The Federalist Society defines its own purpose as one in opposition to “a form of orthodox liberal ideology,” which, it says, dominates law schools and the legal profession. Our Purpose, Federalist Society... A founder of the Federalist Society said the founders were “very frustrated that conservative ideas weren’t being heard. We wanted very much to see some of the ideas that President Reagan was bringing to Washington brought to the law school campuses.”

And generally:

Organizations advocating liberal or conservative causes clearly fall within this prohibition. The conclusion we reached 15 years ago, if anything, is more apt today than it was then: affiliation with organizations holding such views “might reasonably be seen as impairing [a judge’s] capacity to decide any issue of constitutional law that may come before [the judge], and might reasonably be seen as [the judge’s] indirect advocacy [of the organizations’] policy positions.” This alone warrants the conclusion that membership in the ACS or the Federalist Society is inconsistent with obligations imposed by the Code.

OK, so the committee is pretty much playing this one down the middle, and good for it. And this is just a draft opinion anyway, circulated only for further study. Except that the Federalist Society heard about it and went up the wall. As Whitehouse wrote:



Why would the right-wing mouthpiece National Review run not one but five articles opposing a rather abstruse draft Judicial Ethics opinion? Sherlock Holmes made a famous deduction from the dog that didn’t bark; perhaps here a deduction can be made from the one that won’t stop barking.

Protesters camp outside a Federalist Society gala honoring Nikki Haley in New York in January. < Getty Images

Packing the courts is the political effort most desperately pursued by Republican donor interests. The Federalist Society serves as a tool of those interests in the court-packing effort. Much of what the Federalist Society does is wholly legitimate, but its role in the selection of judges has become a key link in the court-packing scheme. It is funded by a network of anonymous donors spending a quarter billion dollars on the influence campaign; read this Washington Post investigation for more. The author of the five National Review articles is actually the president of a group in that network — a group that has accepted two $17 million anonymous contributions to fund campaigns for Federalist Society-approved nominees to the Court.



The author to whom Whitehouse refers is one Carrie Campbell Severino, who heads something called the Judicial Crisis Network, which is even more blatantly political than the Federalist Society, and who did indeed produce a five-part series in National Review entitled “The Judicial Campaign to Silence the Federalist Society.” (Careful readers will note that the ACS, the liberal group also examined by the committee, has disappeared from the equation here.) Whitehouse has been on the JCN’s case for a while, too. This is how we get Supreme Court justices these days, and the victimology narrative is already in place in case that ever changes.

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Charles P. Pierce Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976.

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