Whitehouse Attacks Federalist Society During Kavanaugh Confirmation Hearing

Sen. Sheldon Whitehouse (D., R.I.) / Getty Images
Sen. Sheldon Whitehouse (D., R.I.) / Getty Images

Democratic Sen. Sheldon Whitehouse (R.I.) used Judge Brett Kavanaugh's Supreme Court confirmation hearing to launch an attack on the Federalist Society, a conservative legal organization.

Whitehouse lambasted the Federalist Society in his opening statement as a shadowy organization—underwritten by "big business and partisan groups"—with an outsize influence in shaping the Trump administration's judicial nominees.

"Here’s how the rigged game works: big business and partisan groups fund the Federalist Society, which picked Gorsuch and now Kavanaugh," the senator said. " As White House Counsel admitted, they ‘insourced' the Federalist Society for this selection. Exactly how the nominees were picked, and who was in the room where it happened, and who had a vote or a veto, and what was said or promised, is all a deep dark secret."

The Federalist Society is a conservative legal organization working to educate aspiring lawyers on the constitutional theories of originalism and strict constructionism. The organization strives to provide a forum through which its members can interact with legal scholars—of opposing views—and members of the judiciary to foment their professional development.

With over 200 chapters at law schools across the country, the organization's membership has swelled to over 68,000 practicing attorneys.

Kavanaugh, who was nominated by President Donald Trump to succeed Justice Anthony Kennedy in July, was reportedly a member of the group while attending Yale Law School in the late 1980s. If confirmed, Kavanaugh would be in good company, as Supreme Court Chief Justice John Roberts and Associate Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch are all members of the society.

The late Justice Antonin Scalia, whom Gorsuch replaced last year, was also a member and served as the society's faculty adviser at its University of Chicago chapter. Other members include Republican Sen. Ted Cruz (Texas), U.S. Appeals Court Judge Thomas Griffith, Senate President Pro Tempore Orrin Hatch (R., Utah), and Regan-era Attorney General Edwin Meese, among others.

While its enrollment tends to lean conservative, the Federalist Society has hosted and received praise from legal minds across the political spectrum. In 2005, Associate Justice Elena Kagan, then the dean of Harvard Law School, addressed a Federalist Society dinner hosted in Boston, in which she proclaimed her "love" of the organization. Other justices from the Court's liberal bloc have also attended or spoken at the society's events in the past.

The Federalist Society's specter has been raised previously by liberals in the Senate in an effort to discredit conservative nominees from ascending to the nation's highest court.

Whitehouse initially unveiled his line of attack against Kavanaugh and the Federalist Society in August when calling on Senate Judiciary Chairman Chuck Grassley (R., Iowa) to use the powers at his disposal to release all documents relating to the nominee's relationship with the Federalist Society's Executive Vice President Leonard Leo.

"Even with the slow production of documents from the limited universe you requested, I am already aware of a substantial number of Kavanaugh documents referencing or related to Mr. Leo, evidencing his longstanding relationship with Mr. Kavanaugh, and demonstrating Mr. Leo’s direct influence over Republican judicial appointments dating back to at least the Bush administration," Whitehouse wrote in a letter to Grassley. "Americans should understand how and why—and on whose behalf—a person is selected to fill a life-tenured seat on our nation’s highest court."

Whitehouse, who served as the attorney general of Rhode Island and as a federal prosecutor prior to joining Congress, has been a vocal opponent of Trump's judicial nominee.

In November 2017, the senator questioned a nominee for the United States District Court for the District of Columbia regarding his membership in a Virginia church that had taken a strong stance against gay marriage. Whitehouse's line of inquisition, which at times veered into the territory of personal religious beliefs, was undertaken to ascertain the nominee's stance on Obergefell v. Hodges, the Supreme Court case that extended the legal right to marriage to same-sex couples.