THE COURTS

Affiliation with the Federalist Society helps federal judges get confirmed

New evidence show just how helpful (and complicated) it is

By: Christine Bird and Zac McGee

As the Supreme Court wraps up its term of controversial decisions with a 6–3 conservative supermajority, more and more Americans are aware of the Court’s overtly political stance. The level of public support for the Court has been plummeting, and only a quarter (25%) of Americans report confidence in the Supreme Court.

In the wake of the Dobbs decision, overturning the right to choose for pregnant women, the conservative legal movement, and especially the Federalist Society for Law and Public Policy (FedSoc), has been highlighted by the media and Senate Democrats as the culprit for the recent right turn in judicial decisions. But, despite FedSoc’s nearly 50-year history, much remains unknown about just how influential the Federalist Society is in contemporary politics.

Scholars interested in the conservative legal movement, such as Amanda Hollis-Brusky (2015) and Steven Teles (2008), have cataloged FedSoc’s role in bringing the judicial philosophy of “originalism” to prominence and for creating a professional network of conservative lawyers and adjacent interested organizations.

Yet, many basic questions about the Federalist Society’s influence in the judicial nomination and confirmation process in the United States Senate remain underexplored. Our new research published in American Politics Research, answers one of these basic questions: does being affiliated with the Federalist Society actually improve one’s chances of becoming a federal judge in the United States?

We find that the answer is a qualified ‘yes’, especially in recent years.

Today, the Federalist Society counts more than 60,000 legal professionals working in both the public (e.g., judges, politicians) and private spheres and is currently celebrating 40 years since its inception. Using the Federalist Society’s public event listings, we created a new data set of all Federalist Society affiliates from 1993 to 2020. We use the term affiliate intentionally. The Federalist Society is more a loose network than an explicit card-holding-membership type of organization.

Nevertheless, those who choose to participate find themselves among other like-minded legal professionals and gain access to a network that counts among its affiliates six of the current Supreme Court justices and 25 members of the U.S. Senate since 1993–of which nearly two thirds served on the Judiciary Committee.

Judicial Nominations, Senate Rules, and Contemporary Partisan Polarization

Supreme Court nominations have always been political, but scholars usually point to Robert Bork’s failed nomination as a turning point. Then, in 2013 Senate Democrats invoked what is known as the “nuclear option.” Sparing the procedural specifics (read our study!) Senate Democrats chose to allow for cloture to be invoked (i.e., for filibusters to be thwarted) on district court nominees by a simple majority instead of a coalition of three-fifths of the Senate.

This change was called the “nuclear option”, in part, because any erosion of the cloture threshold decreases individual senators’ power and moves the Senate closer in procedural structure to the House of Representatives, which has been notably governed by blunt majoritarianism since its inception. Many, understandably, feared that providing an exception for district court nominees would serve as a slippery slope to further cloture reforms. The American public did not have to wait long to see the erosion continue either. Once Republicans regained control of both chambers of Congress and the White House in 2017, they extended the simple majority criteria to circuit courts and the Supreme Court too.

In our study, we argue that this most recent set of procedural changes (i.e., the nuclear option) opened the door to increased interest group influence in the judicial nominee confirmation process. Judges are meant to maintain the rule of law and, unlike elected or appointed officials, they serve lifetime terms in order to insulate them from politics. That unique aspect makes the battleground for judicial nominees drastically different from other policy areas with entrenched interest group coalitions already established on each side of the issue.

What We Found

So, does being a Federalist Society affiliate help a judicial nominee get confirmed? The short answer is “yes.” We find that affiliate nominees to circuit courts, after nuclear option enactment, have about a 20% increase in their probability of confirmation.

What does that mean?

It means that the Federalist Society is increasingly successful in placing jurists on the courts that handle appeals and are oftentimes the de facto court of last resort for many litigants involved in both constitutional and statutory legal questions. Unless the Supreme Court chooses to take up a case on certiorari, which happens for about 1% of cases, the decision made by the circuit court is the final word of law for that jurisdiction. Our finding is notable because it shows that despite what those in the media often claim, the Federalist Society is not flooding federal courts with originalist judges and drowning out alternative modes of interpretation. But, they are taking a strategic and targeted approach to place judges on courts that can have a consequential impact on American law.

Has the FedSoc captured the Supreme Court?

We found that affiliating with the Federalist Society has had a different effect over time for Supreme Court hopefuls. For President Trump’s nominees, all three were Federalist Society affiliates and all of them went on to headline national Federalist Society events after being confirmed to the Court. By the time Trump entered the White House the Federalist Society secured assurances that their members would be prioritized for appointments and no coyness was needed on behalf of the nominees.

During George W. Bush’s presidency, however, the picture is less clear. Bush’s first nominee, John Roberts, denied ever being a member despite evidence surfacing to suggest otherwise. For Harriet Miers, whose nomination ultimately was withdrawn, being affiliated with the Federalist Society did not convince conservatives that she would be the steward necessary for accomplishing one of their most important goals: repealing Roe v. Wade. Miers withdrew and Bush nominated Samuel Alito. Yet, in nominating Samuel Alito Jr. to the bench, Alito’s affiliation with the Federalist Society was anecdotal to his already conservative legal record that generated opposition from Democrats.

It should be noted that affiliates to the Federalist Society are not homogenous in their views. Just like all liberals don’t agree on the specifics of every single policy problem or solution, agreeing with a constitutional mode of interpretation is not the same as every affiliate having identical views on which cases should be overturned or what issues should be off limits for the federal government’s intervention.

Yet, what our paper does show is that agreement on originalism is now an important factor to getting a seat on the bench–at least for circuit courts and likely for Supreme Court justices during times of Republican control.

This article represents the first in a series of papers seeking to uncover the dynamics of the Federalist Society and their impact on the federal judiciary. Keep up to date with our research on Twitter by following Christine Bird @ChristineCBird, who will be sharing all we come to find about judicial nominations and the Federalist Society.