Donald Trump Takes On the Conservative Judiciary
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President Trump's second term is turning out to be different from his first in many respects. The latest example is his blast last week against the judges and the judicial nominating allies he had in his first term. So why is he turning against his old friends at the Federalist Society and what does this battle entail?

mean for the next four years about the president's judicial picks and the future of the conservative legal movement. That's our subject on Potomac Watch for today. I'm Paul Gigot, editor of the Opinion Pages at The Wall Street Journal. And today I'm joined again by John Yoo, my old friend, a law professor at Berkeley and a pillar of the conservative bar, a veteran of the George W. Bush Justice Department, author of many books,

including Defender-in-Chief Donald Trump's Fight for Presidential Power. So good to see you again, John. Thanks for coming in. Great to see you too, Paul. You left out the most important thing. I was an intern in the Wall Street Journal, Washington Bureau, along with a long, long train of other noteworthy and great people. That's true. And I probably scared you away from journalism, so you went into the law and you made a good career choice. I'm like...

I don't understand how you journalists handle the kind of poverty you live in. Yeah, well, talk to my wife about that, too. All right. Last week was really an important day from a legal standpoint in the Trump presidency, where Trump unleashed a true social attack on the Federalist Society and its former head, Leonard Leo. And what's remarkable about this, John, as you know, is that as a candidate for president in 2016,

Donald Trump used the Federalist Society choices to create a list of potential Supreme Court nominees. And that was crucial to helping him establish credibility on the right among voters to say, okay, he may not have been a conservative all his life, but we think we can trust him on this because he's promised he's got this list. And of course, the president, the first term, followed that list. Neil Gorsuch, his first nominee, was from that list.

It was updated later, and Amy Coney Barrett and Brett Kavanaugh, I think, were both from that Federalist Society list. But here's what he said last week. He basically said, I am so disappointed in the Federalist Society because of the bad advice they gave me on numerous judicial nominations. This is something that cannot be forgotten.

I was new to Washington, and it was suggested that I use the Federalist Society as a recommending source on judges. I did so openly and freely, but then realized

that they were under the thumb of a real sleazebag named Leonard Leo, a bad person who in his own way probably hates America and obviously has his own separate ambitions, unquote. John, what do you make of that? First, at a time when people are saying President Trump has done this outrageous thing, that outrageous thing, that was truly outrageous to accuse Leonard Leo, one of the stalwarts of the conservative movement, of being something like a traitor.

and using judicial appointments to advance his own personal agenda. I think that was outrageous. But on a larger political and legal level, I don't understand it. Why would President Trump turn his back

on one of his greatest, if not his greatest, achievements from the first term, appointing three justices. You name them, Paul Gorsuch, Kavanaugh, Amy Coney Barrett, which reinforced Justices Alito and Thomas on the Supreme Court in building a really solid

originalist majority, not a conservative majority, not politically Republican majority, but a majority that believes in interpreting the Constitution based on its original meaning. Think about what would have happened otherwise. Abortion, Roe versus Wade, would still be the law.

Harvard would still be engaging in racism in their missions. Now they just allow people to beat up on Jewish students, but back then, right? And cities and states still restricting tightly the right to bear arms. Not only did he appoint three conservative judges who he, as you said, Paul, he promised to do, he kept his promise, but those judges have achieved something

goals for the conservative movement that have been on the agenda since the 1970s. It's been one of Trump's proudest achievements. And he turned his back on it for what? Because he lost an opinion down at the Court of International Trade, which is a very small, unimportant federal court on his tariff schedules, which he's going to get to appeal all the way to the Supreme Court eventually. Yeah, it is something of a puzzle. Just to add to your

list of his judicial achievements in the first term, he appointed 234 judges in total, which by that time was a record for a single term, including 54 circuit court judges as well, which of course are the feeder very often judges for the Supreme Court. I think it's one of the reasons that conservative voters, Republicans said, oh, you know, when they were asked to consider

Trump for another term in 2023 and 24. And the primary said, yeah, that was successful. And look at the judges. Look at the judges. That was one of the big talking points along with the economy. We are going to take a break. And when we come back, we'll talk about just what is the Federalist Society and why has it made such a difference in American law when we come back. The spirit of innovation is deeply ingrained in America. And Google is helping Americans innovate in ways both big and small.

The Department of Defense is working with Google to help secure America's digital defense systems, from establishing cloud-based zero-trust solutions to deploying the latest AI technology. This is a new era of American innovation. Find out more at g.co slash American innovation.

Welcome back. I'm Paul Gigo here on Potomac Watch, the daily podcast of Wall Street Journal Opinion. And I'm here with John Yoo, Berkeley law professor. Tell people what the Federalist Society is and what it has done, because I'm sure some of our listeners may not know. Yeah.

You mean they don't know about the secret right-wing cabal to control all government and law in the country? We will reveal it now on the Potomac Watch podcast. Actually, I think what the federal society is is what incredibly frustrates Donald Trump because it's not a Republican or Democrat organization. It actually takes no positions.

It was started actually by a group of students at the University of Chicago and Yale Law School back in the early 80s, late 70s. And it was just a debating society. And I was one of its earliest members because the only time I ever heard about originalism, the only time I really ever heard Justice Scalia's views defended was when federal society speakers would come and debate originalism.

professors at the law school. It was remarkably successful just by saying, we want to debate what's going on with the Constitution. We want to debate whether this Warren Court revolution was a good idea. We're not going to take sides. We just want to expose students. And then later,

practicing lawyers to a real debate. I think that's what Trump finds so frustrating is that they're not going to be pro-Trump. They're not going to be anti-Trump. Members of the Federalist Society are just committed, first of all, to open and fair debate. And then second, I think if there was anything they had in common, it's the idea that Justice Scalia, I think, so strongly promoted that Judge Bork was the leading paragon for it.

Judges are not there to make policy. They're not there to make law. They're just there to interpret the law and the Constitution based on how the people who wrote it intended it and understood it. And so Trump, I think, finds it very frustrating that all these federal society judges are not there saying, I'm just going to vote for Trump. They're honestly trying to figure out

what does the 1798 Alien Enemies Act mean? What does the 1977 AIPA law mean, rather than just saying Trump wins? That's clearly part of his frustration. And I think it's important to understand, to go back at the founding of the Federalist Society, particularly the early 80s, the dominance of the liberal, progressive interpretation of the Constitution and the law. It dominated at the court.

It dominated at the law schools. It just prevailed everywhere. And the Federalist Society was created –

as an alternative. And over time, as it gradually gained adherence and had chapters in multiple law schools around the country, you had young people who were drawn to that sense of originalism, you know, in part because of the example of Scalia and Bork and others. And what they did was they created and gave credence to and popularity to

originalism and to some extent textual analysis that said judges are supposed to interpret the law. As you say, they're not supposed to impose their view of the dynamic living constitution a la Stephen Breyer and other people on the constitutional left. And that development over the course of many, many years has

led to the position where Trump was able to remake the federal courts and remake the Supreme Court. And it's one of the, arguably in my mind, John, the single greatest achievement of

of the conservative political movement in the United States because it has helped to capture in part, not totally, there's still many liberal judges, but it has remade a major institution in the United States, which is the judiciary. And you see the fruits of that in the cases that you cited. So

It's puzzling beyond belief that the president who helped finally yield the culmination of that, produce the culmination of that movement, would now say, I don't like it all. I don't like it. And you're right, Paul. I think sometimes it's hard maybe for people not in the law or people who aren't reading every Supreme Court opinion to understand why

how dramatically the federal society changed the debate, but which culminated in President Trump's appointments to the Supreme Court. If you listen to the way Supreme Court arguments are held, you read the opinions, they're all about originalism now. They're all about what did the founders think this phrase meant, due process? What did American history and tradition after that mean? Did it ratify or did it reject the constitutional meaning? The whole debate now

has totally rejected the Warren Court, has totally rejected the court that created Roe versus Wade, the court that led to the great expansion of criminal procedure rights, and I would argue, the rise in crime in our cities. You don't hear anything about judges saying, I think due process today means what I learned in John Rawls at Harvard Law School philosophy class. That's completely been banished, not because...

President Trump issued an edict saying you can't talk that way anymore. It's because of the slow 30, 40 years of development. And this is another point, Paul, and this is really more your bailiwick than mine. But what really also puzzles me is the point you made earlier. President Trump appealed to

to this part of the conservative movement, the legal conservative, social conservatives. I remember the primary, it swung the primaries decisively in his favor and away from Ted Cruz, who really is a constitutional conservative and a member of the federal society. It would seem to me a successful presidency is about building coalitions. Why would you seek now to exile one of your strongest supporters? One of the most steadfast defenders of President Trump has been the conservative legal movement until now.

And now he singles out someone who's been associated with it, was associated with a lot of his successes. I guess, you know, it's a good thing Judge Bork and Justice Scalia have left us or Ted Olson have left us because Donald Trump would be attacking them too now. We are going to take another break. And when we come back, we'll talk about the implications for Donald Trump's judicial nominations of his recent broadside against the Federalist Society when we come back.

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Welcome back. I'm Paul Gigot here with John Yoo, a Berkeley professor of law. So just to elaborate on what I've been able to collect in terms of reporting about why the president is so negative about the Federalist Society and Leonard Leo in particular. And it goes back in part to what he thinks was the lack of support for him.

by Federalist Society-affiliated judges after January 6th and the election of 2020. He thinks that they should have supported him in their decisions. And of course, he lost every single decision, whether you're a judge right, left, or center. But he thinks that was wrong. He believes the Supreme Court should have intervened in that election, of course. And he thinks his three appointees should have intervened. And he also is sore because he doesn't think that

the Federalist Society and Leonard Leo in particular, who now has left the Federalist Society, I should observe, and now has his own operation where he funds a lot of political causes. But he thought they should have done more to support him

in the lawfare campaigns, the prosecutions against him during the Biden administration. But as you point out, the Federalist Society just doesn't play in those arguments. It just doesn't do it. On either side, it thinks that that's a violation of what it is meant to be, which is a place where the law can be debated and the Constitution can be debated on all sides. But Trump is very sore

about Leonard Leo in that particular case. - Can I just throw in though, that I think he's getting bad advice. He was never gonna win any of those January 6th cases. I looked at the evidence very closely. I've debated John Eastman, a friend of mine, repeatedly all over the country for the last four years. They just didn't have a case. But Donald Trump should realize that an independent judiciary is to his benefit too, because if it weren't for federal society judges, he would be in jail right now.

because it was the Roberts court that said former presidents just can't be prosecuted for crimes. And I think because Roberts, because Thomas Alito, because particularly

Barrett, Kavanaugh, and Gorsuch are not seen as just rubber stampers for Trump, the Supreme Court makes that decision, the debate is over, and Donald Trump can run for office and win in the 2024 election. He appoints some of the people now that we worry he'll appoint to the bench, former defense lawyers on his team, former friends who helped him legally when he was a casino owner,

And he may not win that case. He might be sitting in jail right now. And Joe Biden or whoever his successor would be, would be president right now. Sure. And the same Supreme Court kept him on the ballot in Colorado. Remember when they tried to knock him off the ballot in Colorado and that would have been a precedent for some other states. So he actually does win more than he loses. He wins the important ones, actually. That's true. That's true. Now,

Is there, though, a larger break here? And I want you, again, to put your legal analytical hat on as you look at the conservative legal movement. Is it fragmenting some from with the originalists faction with now what's been become for some on the right so-called common good conservatism associated with Patrick Deneen at Notre Dame and Stephen from

premier at Harvard. And they take a very different view than originalism, are much more, I would argue, results-oriented toward the right when it comes to interpreting the Constitution. Paul, you have convinced me that at night you've been getting a law degree in secret and nobody knew. Because that is a really insightful point that really, I think, is behind Trump's attack. Although I don't think Trump

really has any idea this is going on, but that's really what it's at stake. As you said, Paul, the conservative movement, it's triumphant. We won. You have a court- We won't take yes for an answer. You have a Supreme Court with six justices who are committed originalists. This is the most conservative Supreme Court in over 100 years. This is the dream for the conservative-

But the question is, now that the dog caught the bus, what do you do? Because originalism is, in a way, a defensive strategy. It was a response to the excesses of the Warren Court. The Warren Court would just openly say, we're going to make policy now. We think people should be read a Miranda warning, and we're going to tell you exactly what the Miranda warning has to be. No effort to say this was part of the original understanding of the right to counsel and so on.

So what do you do when originalism has succeeded in returning Roe versus Wade to the states, has succeeded in ending affirmative action? Now, there's some people, as you said, on the conservative right who say, we have the power now, let's use it.

Abortion is a good example. They would say, we should return abortion to the states. We should ban abortion nationwide through the Supreme Court. In a way, Dobbs was wrong because it didn't go too far. It should have said, life under the 14th Amendment starts at conception, so no state can allow abortion.

Whereas the traditional conservative version of the point was not to say we have a view on abortion, but return it to the state. So I could have a judge. I clerked for a wonderful judge. You knew Larry Silberman at the DC Circuit. He could simultaneously say Roe versus Wade was wrong. And I was always positive about this, but he could also say I'm pro-choice.

He wanted to be able to vote at the ballot box. So I think really, and this is why I think people like Leonard Leo, federal side members truly are patriots in the sense that they support the constitution rather than the outcomes. And they have a faith in democracy. I think Justice Scalia and Judge Bork really had a faith in democracy. This approach that you're talking about, that's fighting for now control over the conservative legal movement, they're distrustful democracy too, just as much as the progressives were.

They would like to use the courts and constitutional law to advance their values, which may not be yours or mine, but they think those are the right values just as much as the Warren court and progressives thought liberalism was the right value. And they just want to use the court in the same way to get their values advanced. And I would say a non-democratic manner. Still a relatively small movement, much more dominated right now by originalism, but the

You never know. Its appeal, as you say, so many of the victories that the current court has for the conservative views of the Constitution have been about fixing the mistakes of the Warren court, fixing the mistakes, even going back

this year they might fix the mistake of Humphrey's executor. Yes, that would be truly amazing, but I think they will do that. You're right. But after a while, you're left with, okay, well, we've got the constitution. We've kind of pared it back. And you'll get novel questions that are truly significant. But it's going to be interesting to see how this debate evolves. And

More immediately, the implications of the president's attack on the Federalist Society and Leonard Leo is what implications does it have for his judicial selections? And as judges, both in the appellate courts and the Supreme Court, look ahead and say, hmm, how long can I stay? Should I retire and let a Republican president replace me?

When you look at his attack on the Federalist Society, they may begin to think, some of these judges, geez, I'm not going to retire because I'm afraid who might replace me. That's an excellent point because Justice Thomas, Judge Alito are in their 70s. I wish them long life. I hope they stay much longer, particularly Justice Thomas. I clerk for him. I don't want him to leave the bench too early.

But I'm sure they would look at this and say, I'm not going to step down so that President Trump can appoint his criminal defense lawyer to the Supreme Court. Now, can I say, Paul, this is the way that judicial appointments used to go. Presidents would appoint their friends to the Supreme Court. Harry Truman made Vincent Chief Justice because he played poker with him in the Senate. Right.

Right, right. I'm sure Vincent always folded whenever Truman bluffed. But Frankfurter was a big pal of FDR. Exactly. And lower courts were even worse. You know, a senator's roommate from college or something. So judges used to be the playground for political favors. And that's another feature of the brilliance of Leonard Leo and the federal side was make it a meritocracy. Right, right. You look at who Trump appointed in his first term. He outdid Trump.

Reagan and Bush in the quality, not just the numbers, but the quality of the people he appointed to the court. And it's hard to tell right now. So you've written about this on your pages. On the one hand, he nominated a young woman for the Sixth Circuit in Ohio who has a Sterling Federal Society type resume, clerked at the Supreme Court as a solicitor general, all the things you'd want.

Then he appointed his personal criminal defense lawyer to the Third Circuit, which is based in my home city of Philadelphia. That's not who the federal society would support or pick if they had the right to the federal bench.

Which way is this second term going to go? If it goes more in terms of appointing political cronies, which was the practice before, this is why I don't understand it. He's going to lose an important part of his political coalition. And as you say, Paul, I think a lot of judges are going to reconsider plans to retire. I think a lot of judges will stick it out past 2020.

2028, as you're predicting, to see what would happen. Just to put a specific detail on your point about age, Clarence Thomas in this month, I think, turned 77. Samuel Leto is 75. Okay. So while we wish them keep exercising, felt folks. Take that Olympic. It's really good for you. Keep fit. Doctor checkups every two months. But it's a real question because as they get older-

If you look at the prospects, if they don't retire, if Alito and Thomas do not retire in 2020,

Let's say the Republicans hold the Senate in 26. If they don't retire before 2028, well, then you're taking a very big gamble because the Democrats could win the election in 2028 and then have an eight-year run. And you don't want to be 90 when you're retiring from the court, even if the actuarial tables allow you to, and the good Lord allows you to survive that long. They've got to be conscious of the example of Ruth Bader Ginsburg. Right.

who did wait too long, should have retired under President Obama, but didn't and passed away, and then tried to make it all the way through President Trump's term and didn't make it till the very end. And now her seat is occupied, Amy Coney Barrett, who voted to overturn Roe versus Wade. All right, we are going to end it on that note. John Yoo, I want to thank you, professor of law at Berkeley, and unfortunately, never became a journalist, got scared straight.

Paul, you can always hire me on and I will change my ways and return to my life of squalor and poverty. You don't want to be edited by me, John. I'm brilliant. I survived Silberman and Thomas. I can take on another Nixonian retread. All right, John Yoo, thank you so much for coming in. Thank you all for listening. We're here every day on Potomac Watch. Please join us again tomorrow.

The spirit of innovation is deeply ingrained in America, and Google is helping Americans innovate in ways both big and small. The Department of Defense is working with Google to help secure America's digital defense systems, from establishing cloud-based zero-trust solutions to deploying the latest AI technology. This is a new era of American innovation. Find out more at g.co slash American innovation.