President Donald Trump is distancing himself from the group that Republicans have long relied on to rubber-stamp judicial nominees. But some conservatives warn that icing out the Federalist Society could leave him without the infrastructure to build on the judicial branch his party has long dreamed of.
Trump publicly dunked on the Federalist Society — calling Leonard Leo, the conservative activist behind his first term’s judicial pipeline, a “sleazebag” — and lamented the group’s past guidance on judicial nominations.
He also elevated his personal criminal defense attorney, longtime ally and current Justice Department official Emil Bove, as his pick to be a federal appeals court judge. Critics see it as an effort to stack the bench with loyalists. His confirmation process could test other Republicans’ appetite for a shakeup in how their party has long selected its nominees, and some say, could pave the way to a more politicized judiciary.
Bove is “a nomination that is not characterized by a well-developed conservative legal theory, but characterized principally by a willingness to aggressively fight for the president’s agenda,” Gregg Nunziata, a former counsel for Senate Republicans and a Federalist Society member, told NOTUS.
He added that the nomination signals a turning point “away from judicial excellence and well-formed jurisprudence, and toward partisan or personal agendas on the bench.”
Top Republicans aren’t thrilled about Trump airing his grievances about the group, widely considered the most influential conservative legal organization in the U.S.
“He’s got three strict constructionists on the Supreme Court because of the way it worked in his first term, and he ought to be happy with it,” Senate Judiciary Committee Chairman Chuck Grassley said.
Trump can still offer up any nominee he wants, but it’s senators on Grassley’s committee who will have a critical voice in vetting and green-lighting judiciary candidates for floor votes. They’ll be the ones to decide how much weight Federalist Society membership ultimately carries — and how much to give in to Trump’s desire to build a more loyal judiciary.
Some of those Senate Republicans said they are still fans of Leo. The Federal Society’s co-chairman, who is credited with creating a powerful pipeline of conservative judges and is a prolific fundraiser for conservative causes, has been advising them for years. They were unwilling to lob the kind of criticisms toward Leo or the Federalist Society that the president has.
“Everybody’s entitled to their opinion. I like Leonard, and I like the Federalist Society,” said Sen. John Kennedy, another Senate Judiciary Committee member.
Meanwhile, Trump panned the organization last week for giving him “bad advice,” and called Leo “a bad person” after a three-judge panel at the U.S. Court of International Trade blocked his tariffs, ruling that he had overstepped his executive power.
Trump regularly attacks judges after they rule against him, but this time, he pointed his finger at the Federalist Society. It’s not clear what spawned the online vitriol — Leo said in a statement to NOTUS that neither he nor the Federalist Society played any role in those judges’ appointments.
He did not criticize the president, but said that “it was a privilege being involved” in Trump’s first-term reshaping of the judiciary and that “there’s more work to be done.”
A White House official acknowledged to NOTUS that the judicial selection process will look different this term: “There’ll be more of a reliance on his senior staff team that is going to vet these individuals.”
And in a statement, White House deputy press secretary Harrison Fields wrote, “The President may disagree with the Court and some of its rulings, but he will always respect its foundational role.”
Just how far Trump wants to go in ostracizing the Federalist Society is still unclear. All five of the Trump judicial nominees who have had confirmation hearings so far during the second Trump administration are Federalist Society members, according to Senate questionnaires. One of them, Maria Lanahan, is also a member of Leo’s latest entertainment project, Teneo, which aims to make American culture more conservative.
“Trump is looking for loyalty and expansive views of presidential power, but he also likes credentials,” Ilya Shapiro, director of constitutional studies at the conservative Manhattan Institute, emailed NOTUS. “The larger discussion about what kind of judges to appoint is an intramural one; all of the Trump judicial nominees thus far except Emil Bove have Fed Soc ties — and Bove otherwise has sterling credentials.”
Trump nominating Bove, who declined to comment for this story and didn’t answer a question about whether he’s a Federalist Society member, for a powerful appellate court is already causing rifts on the right. Federalist Society institutionalists see him as a figure more interested in advancing Trump’s agenda than constitutionalism, and his nomination process could be the first major test of how the Republicans will respond to Trump’s new judicial selection process.
“I have serious doubts that Bove has the character and integrity to be worthy of confirmation as a federal judge,” conservative legal commentator and Federalist Society member Ed Whelan wrote in an op-ed.
Bove does have Trumpworld support in his corner. The anti-“lawfare” organization Article III Project is lobbying for his confirmation. The Article III Project, chaired by former Senate staffer Mike Davis, is one of the organizations that Brookings Institution judicial scholar Russell Wheeler said could try to fill the gap if the Federalist Society is iced out.
“I suspect Davis is going to have a pretty big role in this because he has the machinery to vet these candidates according to the criteria that’s most important to Trump — and that is loyalty to Trump,” Wheeler said.
In a statement, Davis told NOTUS he’s more than willing to take the charge.
“Article III Project bucks the FedSoc trend of weak judicial selections in favor of those who will be bold and fearless in defending the Constitution. The judicial nominees we support don’t live in fear of the consequences of standing up for the rule of law,” Davis said, using Bove as an example.
Others make the case that it’s unlikely another conservative group could quickly garner the clout the Federalist Society has or its infrastructure. The group, formed in the 1980s, is the largest conservative legal organization, with chapters in law schools across the country.
“Maybe they’re going to reach into a different part of the apple bin, or they’re going to try to find apples with different criteria. But they’re picking from inside the same bin,” a lawyer on a Federalist Society executive committee told NOTUS.
“If you try to pick a judiciary solely encapsulated by the president’s former criminal defense lawyers and Twitter personalities, you’ll empty that pool in an astonishingly fast fashion,” he added. “You will not have 100% confidence in how they will actually decide questions — because not every question is a question of, ‘What can President Trump do?’”
Sen. Josh Hawley, a Judiciary Committee member who was a student leader of the Federalist Society chapter at his alma mater, Yale Law School, said Trump publicly turning his back on the conservative legal group doesn’t signal a stark departure from the president.
“His comments speak for themselves. I’ve heard him say that before in other fora, so I wasn’t surprised to read it,” Hawley said, adding that judge selection has always been up to Trump himself. “It’ll take a lot of input, but there’s not gonna be any group — and I don’t think there ever was — that’s actually choosing for him.”
But the role this particular group played in Trump’s first-term judicial selection process is hard to overstate. According to a ProPublica analysis, 86% of his first term’s circuit and Supreme Court picks belonged to the Federalist Society.
“Everybody who worked at the White House counsel’s office was a Federalist Society member, and there was just no light at all between the Federalist Society and the first Trump administration. There really wasn’t,” said Manuel Miranda, who worked to get George W. Bush nominees confirmed in the Senate.
“What is dangerous for the Trump administration to bloviate about their differences with the Federalist Society,” Miranda added, “is that they forget that there’s still a Judiciary Committee that they have to send their nominees to.”
Sen. Ashley Moody, who spoke at Federalist Society events in Florida when she was a state official, said she wasn’t worried about the Federalist Society’s potential absence in Trump’s judicial selection process moving forward.
“I think the senators on the judiciary are doing a good job of vetting everybody,” Moody told NOTUS.
Meanwhile, the committee’s top Democrat told NOTUS that the president’s sudden vitriol toward the man who helped him out so much his first time in the White House did not surprise him one bit — but he delighted in the conservative infighting over Leo’s influence, which he’s long railed against.
“He called Leonard Leo a ‘sleazebag!’” Sen. Dick Durbin said, laughing. “Is anybody surprised by anything that Trump says? To take this man who engineered his selection of judges for years and years, and then to lose all faith because one of those judges voted independent of Trump, is an indication of what a crazy president we have.”
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Claire Heddles and Emily Kennard are NOTUS reporters and Allbritton Journalism Institute fellows.