Editor’s Note: Paul Begala, a Democratic strategist and CNN political commentator, was a political consultant for Bill Clinton’s presidential campaign in 1992 and served as a counselor to Clinton in the White House. He is the author of the new book, “You’re Fired: The Perfect Guide to Beating Donald Trump.” The opinions expressed in this commentary are his. View more opinion articles on CNN.
Donald Trump’s Supreme Court nominee, Appeals Court Judge Amy Coney Barrett, has been part of a shadowy group that recruits like-minded people and seeks to impose strict, even extreme, control over those below them. The group is ultra-conservative and is well on its way to taking control of your sex life, your family life, your economic rights, your voting rights.
I am not referring to any religious group – attacks on Judge Barrett’s religious affiliations are, in my opinion, unfair, unwarranted, and unwise. As a faithful Catholic myself, I defend Judge Barrett’s right to belong to the ecumenical People of Praise and for that association to never be held against her.
What I do hold against her is that she has been part of a different group – one far more powerful than a religious organization: The Federalist Society. Barrett was a member from 2005-06 and 2014-17. She ended her membership when she joined the appeals court, but she continues to be a panelist and speaker at Federalist Society events.
As Sen. Sheldon Whitehouse (D-RI) has said (and I have written in my book), The Federalist Society is more than a group of right-wing lawyers sucking up for clerkships and judicial jobs (though it is that). It is also, Whitehouse alleges, a “vehicle for powerful interests, which seek not to simply ‘reorder’ the judiciary, but to acquire control of the judiciary to benefit their interests.”
Having studied the group, Whitehouse has concluded, “The evidence is that the Federalist Society is funded by massive, secret contributions from corporate right-wing groups that have big agendas before the courts.” Citing reporting by the Washington Post, Whitehouse and fellow Senate Democrats Chuck Schumer (D-NY) and Debbie Stabenow (D-MI) claim Federalist co-chair Leonard Leo, “is at the heart of a network of more than two dozen right-wing nonprofit entities – groups that raised over $250 million between 2014 and 2017 alone…to promote far-right policies and legal doctrines and the judicial nominees who advance them.”
The Senate Democrats’ study cites Koch Industries and the Charles & David Koch foundations, the Scaife Foundation, the Lynde and Harry Bradley Foundation, and the US Chamber of Commerce as among the organizations funding The Federalist Society.
The analysis suggests that more than a quarter of all Federalist funding flows through a group called Donors Trust, whose “structure hides the real identities of politically motivated megadonors.”
Whitehouse is a former federal prosecutor and Attorney General of Rhode Island. He is also a member of the Senate Judiciary Committee. When Judge Barrett comes before that committee, expect more fireworks about her being part of the Federalist Society than any religious group. After all, many of us believe in an all-powerful God. Few believe in an all-powerful corporation. But those few seem to be in the driver’s seat when it comes to selecting the members of the Supreme Court.
The Federalist Society, according to former Trump White House Counsel Don McGahn, plays an outsize role in choosing the judges Trump nominates. McGahn told the pressure group as much in 2017, boasting that rather than outsourcing judicial selection to the group, Trump had brought them inside the White House.
“Our opponents of judicial nominees frequently claim the president has outsourced his selection of judges. That is completely false,” McGahn said. “I’ve been a member of the Federalist Society since law school — still am. So, frankly, it seems like it’s been insourced.”
The Federalists, lawyers that they are, baffle us with BS about being “originalists,” “textualists,” and judges who “won’t legislate from the bench.” Baloney. They seek nothing less than a fundamental reordering of American life. On the economy, for example, Federalist member Justice Neal Gorsuch has ruled that a corporation had the right to fire a truck driver who refused to stay with his trailer, even though remaining with the trailer may have meant freezing to death. Corporations should have the power of life and death over their employees – in Federalist Society America.
In our personal lives, Federalist Society members seek to give government power over whether a woman can choose to have an abortion. Federalist hero Justice Clarence Thomas has written that Roe v. Wade is “without a shred of support” in the Constitution. After Roe, I fear the Federalist group on the court will come after contraception, marriage equality, and privacy itself. Think I’m overreaching? All four of the dissenters in the marriage equality case (Obergefell v. Hodges) were Federalist heroes: Scalia, Roberts, Alito, Thomas. And Justice Thomas has bitterly denounced the very notion of a constitutional right to privacy, excoriating the 1965 case guaranteeing married couples access to contraception as “a free-floating constitutional right to privacy.” Thomas argues that “this general ‘right of privacy’ was never before considered a constitutional guarantee protecting citizens from governmental intrusion.”
In our civic life, our nation’s most powerful Federalist role model, Chief Justice John Roberts, manipulated a fairly small case about an anti-Hillary movie into a wholesale rewrite of the nation’s campaign finance laws to benefit big money corporate interests in Citizens United. He also gutted the Voting Rights Act, which Congress had reauthorized in 2006 by a vote of 98-0 in the Senate and 390-33 in the House.
So much for not legislating from the bench.
While others are focused on November 3, Election Day, Trump’s special interest base has another day in mind: November 10, when the Affordable Care Act comes before the court. If Judge Barrett becomes Justice Barrett, I fully expect her to eviscerate the patient protections in the Affordable Care Act.
The case, California v. Texas, seeks to do through the courts what the GOP has failed to do in Congress: destroy the Affordable Care Act and its protections for Americans with pre-existing health conditions. This case is for all the marbles – or, at least, a lot of them. The Center for American Progress estimated last year that 135 million Americans under the age of 65 have a pre-existing condition. The popularity of that provision has, I believe, made it politically impossible for elected Republicans to abolish it, despite at least 70 attempts. But rather than live with it, they want unelected, unaccountable judges – with lifetime appointments – to do their dirty work for them.
Sadly, Judge Amy Coney Barrett seems willing to do so. “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” Ms. Barrett said in 2017, when Roberts was part of a court majority that ruled Obamacare is constitutional.
Judge Barrett’s selection may prove to be a big win for the base of Trump’s party – and by “base,” I do not refer to the people who wear MAGA hats and risk their lives at Covid-19 super-spreader rallies. The real base: corporate powers who hide in the shadows and have nothing but contempt for those MAGA folks.
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Those shadowy corporate interests are the winners in the Barrett selection. Judge Barrett could form a phalanx of Federalist icons that includes Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh. Together they will have the power to make corporate interests even more dominant. The rest of us will simply be their handmaidens.