Democrats Accuse Conservatives of a ‘Dark Money’ Bid to Influence Judges

Some top Democratic senators on Tuesday accused the Federalist Society of supporting a conservative “dark money” campaign to influence the federal judiciary, including who gets selected to become a judge and how he or she rules once on the bench.

Both of President Trump’s appointees to the Supreme Court had ties to the group, as did all but eight of his 51 appointees to the court of appeals, an analysis in March by The New York Times showed.

The Federalist Society, which advocates strictly interpreting the Constitution according to what conservatives say was its original meaning, has been instrumental in identifying judicial nominees with legal careers focused on causes that have appealed to Republicans, such as opposition to gay marriage and to government funding for abortion.

The Democratic senators suggested the group had become the “de facto gatekeeper for judicial nominations in the Trump administration” and was “in league with” special interest groups seeking to shape the outcome of court cases.

“At the end of the day, the Federalist Society is at the center of a network of dark-money-funded conservative organizations whose purpose is to influence court composition and outcomes,” said the letter, written by Senator Sheldon Whitehouse of Rhode Island. It was signed by Chuck Schumer of New York, the minority leader, as well as Sherrod Brown of Ohio, Richard Blumenthal of Connecticut, Richard J. Durbin of Illinois, Mazie Hirono of Hawaii and Patrick Leahy of Vermont.

Theodore B. Olson, a solicitor general under President George W. Bush, called the arguments raised in the Democratic letter “laughable and intentionally partisan,” and defended the Federalist Society as a venue for “open, vigorous debate.”

“The success of the Federalist Society that drives them crazy is because the Federalist Society has never put itself in a position where people say, ‘I’m a member of the Federalist Society, and we take this position,’” said Mr. Olson, who has been active in the group and holds a leadership role.

The letter is the latest salvo in a fierce ideological debate over the organization and what it means for a judge to belong to it.

The ethics panel had proposed the ban in January out of a concern that membership could “call into question the affiliated judge’s impartiality.” The panel, led by a Trump appointee and composed of judges nominated by both Democratic and Republican presidents, also proposed banning membership in a liberal legal group, the American Constitution Society, which had influence in the Obama administration.

Letters against the proposal were submitted in March by Republican senators, including Mitch McConnell of Kentucky, the majority leader, and by federal judges, more than half of whom were Trump appointees.

The ethics panel distinguished the A.B.A. from the Federalist Society and the American Constitution Society because, the panel said, it was “concerned with the improvement of the law in general and advocacy for the legal profession as a whole.”

In their letter, the Democratic senators did not contest that conclusion, but said they would support banning membership in the A.B.A. as well if the ethics panel deemed it necessary to rid the federal judiciary of perceived bias.

The panel “should err on the side of protecting judicial impartiality and restrict judicial membership in that organization as well,” the letter said.

Judy Perry Martinez, president of the A.B.A., said in a statement on Tuesday that the organization operated apart from politics. She said its mission was “to serve our members, improve the legal profession, eliminate bias and enhance diversity, and advance the rule of law.”

She said the group, which evaluates judicial nominees based on “experience, integrity and judicial temperament,” had rated 97 percent of Mr. Trump’s 301 nominees as qualified or well qualified.

The Democratic lawmakers argued in their letter on Tuesday that opponents had advanced “overheated and factually incorrect claims” about the proposed ban, noting that it would not block participation in Federalist Society events, only membership.

“If a judge values his membership in a private organization more than his perceived judicial impartiality, that judge is free to leave the bench and enjoy the organization,” the letter said.

Six law professors who specialize in legal ethics submitted a separate letter to the ethics panel echoing support for the proposal, calling it “eminently reasonable and balanced.” The letter, submitted in April, said that “Americans are increasingly concerned about the impartiality and integrity of the federal judiciary.”

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