The Federalist Society isn't going anywhere

Yahoo

4 days ago

President Donald Trump said the Federalist Society gave him 'bad advice' on judicial nominations. He's still appointing their members to the federal bench anyway.
On Wednesday, the Senate Judiciary Committee will consider nominees for seats on the federal bench, including Emil Bove, Trump's No. 3 at the Justice Department and an outsider to some mainstream conservative legal circles. Bove's nomination has divided the right over whether Trump was eschewing the traditional conservative Federalist Society pipeline in favor of his own brand of loyalist nominees. But even amid a schism between Trump and the Federalist Society, the president's orbit has continued to embrace lawyers and jurists who have ties to the most influential conservative legal group.
In a sign of the continued alignment between the Federalist Society and the administration, the Senate Judiciary Committee will also vote Thursday on a different slate of judicial nominees, all five of whom are members of the Federalist Society, according to their disclosures and the Federalist Society website.
'The Federalist Society is just interwoven into the conservative legal establishment,' said Russell Wheeler, a nonresident senior fellow at the Brookings Institution who studies the judiciary. For all Trump's indignation, the majority of his picks thus far are 'not only Federalist Society members, they're proud Federalist Society members,' Wheeler said.
The Federalist Society is an influential conservative legal group whose ranks have included some of the nation's most powerful judges, and its chapters on law school campuses have operated as a training ground for future conservative jurists. In Trump's first term, the organization's former Executive Vice President Leonard Leo served as a key adviser to the president on judicial nominations. The White House ultimately nominated and confirmed hundreds of judges to the federal bench, including three Supreme Court justices.
As some of the judges Trump nominated have ruled in ways he doesn't like — and in particular in the wake of a ruling from the U.S. Court of International Trade that nullified Trump's tariffs — the president announced in a post on Truth Social that he had cut ties with Leo. He called his onetime adviser on Supreme Court nominees a 'sleazebag' and lamented his disappointment in the Federalist Society for the people the organization had recommended.
But it does not appear Republican Senators on the Judiciary Committee — even some of the president's staunchest allies — share Trump's new animosity towards the Federalist Society.
'We'll go to people that I've always relied upon to give me advice,' said Sen. Lindsey Graham (R-S.C.), a current member and former chair of the committee. 'The Federalist Society, I've known for a long time, I'll still keep talking to [them]."
"I'm going to work with people that want to talk to me,' echoed Sen. Chuck Grassley (R-Iowa), chair of the committee. 'Would we sit down and talk to them and have discussions with them? The answer is, we'll talk to anybody.'
And others warn that most qualified candidates are still going to come from the group. 'Unless they use Federalist Society association as something that actually stops someone from getting a nomination, I don't think it's going to make a difference, and if they did take that step, the talent pool would shrink dramatically,' said an individual familiar with the administration's judicial selection process granted anonymity to speak candidly.
A White House official said in a statement that Trump relies on 'his senior advisors, White House Counsel, and the Department of Justice' in the judicial selection process. 'The mold by which President Trump chooses judges is that of Justices [Clarence] Thomas and [Samuel] Alito and the late Justice [Antonin] Scalia,' the official said. 'Outside entities, including hometown senators, think tanks, and others, are always free to share their recommendations, but the President and his team will be the ultimate decision-makers.'
There has been a notable exception to the administration's continued affinity for Federalist Society-approved lawyers. Bove, who if confirmed would hold a lifetime seat on the powerful Third Circuit Court of Appeals, has come under scrutiny for his controversial maneuvering to fulfill Trump's political agenda at the Department of Justice. The president's one-time criminal defense attorney, not a typical Federalist Society candidate for the federal bench, is facing allegations by a former lawyer at the Department of Justice that he suggested the administration should go against court orders. Some in the conservative legal sphere have questioned his nomination out of concern that he would unduly prioritize loyalty to the president.
Michael Fragoso, former chief counsel to Mitch McConnell, who as Senate Republican leader shepherded the hundreds of nominees that Trump confirmed in his first term, underscored that if the most qualified candidates were Federalist Society members, Trump would still choose them. 'If you look at who's being nominated by and large really, I think Emil [Bove]'s probably the only exception,' said Fragoso, adding that Trump's second term judicial picks are for the most part, 'pretty traditionalist Federalist Society people.' Fragoso is supporting Bove's nomination.
Behind the scenes, the Federalist Society has continued to angle for influence, despite Trump's frustration.
Mike Davis, an outside adviser to the White House on judicial nominations, said the Federalist Society's new president, Sheldon Gilbert, reached out to him around the time he took over the organization in early 2025. Gilbert expressed that he wanted to mend fences with Trump's orbit, and the two ate lunch together, Davis said. The Federalist Society did not respond to a request for comment.
'Having new leadership is an important step in the right direction, but the problem with [the Federalist Society is] they need to stop being the string orchestra on the Titanic,' said Davis, a former staffer to Grassley. 'They want to look majestic as the ship is going down.'
In other words, the Federalist Society needs to supply lawyers who will contribute meaningfully to the president's legal aims, Davis said.
Trent McCotter, a former Justice Department official and Federalist Society member who worked on judicial nominations during Trump's first term, feels similarly. He said the number one priority for judicial nominees going forward should be a 'proven track record of doing conservative work.'
'Membership in the Federalist Society is a signal, but it's a relatively weak one,' McCotter said. 'What you've been doing, putting your name on and filing, arguing in court for the last year or five years or 10 years, those are things that demonstrate much more what a person thinks about the law.'
'There will presumably still be nominees who are members of the Federalist Society,' he said. 'It just won't be the same kind of signal that it used to be.'
Tessa Berenson Rogers contributed to this report.