Federalist Society and Conservatives’ Wishlist for Attorney General

The Associated Press
The Associated Press

WASHINGTON, DC – The Federalist Society’s national convention is the foremost gathering of conservative legal minds in America, and this year it was abuzz with the names of several giants from whom this critical part of President Donald Trump’s base hopes he will choose his next attorney general.

The National Lawyers Convention of the nonpartisan Federalist Society for Law and Public Policy is a three-day affair in the nation’s capital each November.

The high point this year was a black-tie dinner with 2,200 attendees held at Union Station, at which four Supreme Court justices, several of the president’s Cabinet members, former Attorney General Jeff Sessions, numerous senators and congressmen, and literally dozens of federal judges appeared. The convention was a tour de force of conservative and libertarian legal thought, including several prominent liberals to debate controversial issues during the convention’s panel discussions.

One of the most energetic topics of conversation was who President Trump should pick as his next attorney general to lead the U.S. Department of Justice (DOJ).

Led by Gene Meyer and Leonard Leo, the Federalist Society boasts among its more than 75,000 members multiple former U.S. attorneys general, deputy attorneys general, solicitors general, and other top DOJ officials from every administration from the Reagan years to the current Trump years, not to mention dozens of senators, congressmen, governors, state attorneys general, and scores of federal judges. Together they constitute the best possible sounding board the president could hope for.

Everyone at the Federalist Society seemingly agreed that the president can take his time to get this right. Matthew Whitaker is by all accounts doing an excellent job as acting attorney general, receiving uniform praise from all those present at the convention. DOJ is currently in good and capable hands, providing the president with a stable situation in which to carefully vet, consult, and consider what sort of attorney general will best enact his agenda.

Moreover, there is a significant benefit to waiting until sometime in January to announce his final pick. The Senate will become much more pro-Trump on January 3. Aside from picking up four Republican seats with Trump allies Rick Scott (FL), Mike Braun (IN), Kevin Cramer (ND), and Josh Hawley (MO), Republican Trump critics like  Bob Corker and Jeff Flake will be gone, with Corker replaced by the conservative Marsha Blackburn. All in all, the Senate could be five votes friendlier to the president and his agenda, and no longer closely divided when it comes to confirmations.

There is no reason to leave any AG nominee hanging over the Christmas break, where Democrats can be expected to snipe at anyone President Trump might choose. Better to do it when the new Senate is in place, when the Senate Judiciary Committee can expeditiously vote on the nomination, and Sen. McConnell can swiftly hold a final confirmation vote.

The clear consensus is that the president needs an attorney general who is three things: conservative, brilliant, and strong.

Some of the names in the news include people who are not conservative on various issues that are enormously important to the president’s political base and his campaign promises. Others are smooth politicians, but who have never been regarded as keen legal intellects. Still others have not shown that they are decisive leaders with a spine of steel to withstand the withering attacks would come their way on a daily basis if they lead DOJ.

Four names repeatedly leaped from people’s lips at the Federalist Society convention and were chatted up enthusiastically.

Edith Jones

First is Judge Edith Jones of the U.S. Court of Appeals for the Fifth Circuit, appointed in 1985 by President Ronald Reagan at age 36. One of the most revered federal judges in America, Jones is the former chief judge of the New Orleans-based appellate court and is regarded as shockingly brilliant and one of the Clarence Thomas-style philosophical anchors of the entire judiciary.

At age 42, Jones was one of the two finalists to replace Supreme Court Justice William Brennan. The first President Bush ultimately tapped Justice David Souter — who proved to be a solid liberal — for that seat in 1990. Had Bush appointed Jones, coupled with his 1991 appointment of the originalist Justice Thomas at a similarly young age of 43, Bush would have presided over the same sea change in constitutional law now being effectuated by President Trump.

A longtime Texan, Jones is thought of as a Margaret Thatcher-style “Iron Lady,” someone who is fearless on principle and utterly unflinching in the face of public criticism but who does it all with grace and elegance. “I would love to see Spartacus Booker or Kamala Harris try to tangle with Jones in a Senate oversight committee!” said a state deputy attorney general at the convention who asked to stay anonymous.

Her only disadvantages are that she does not have extensive management experience and has not worked at DOJ previously, though a strong deputy attorney general and strong chief of staff could remedy those items.

All that said, some of the leading lights on the bench take their cue from Jones, essentially regarding her as the Supreme Court justice that all of them wished she had become in 1990. Jones would be the first woman appointed by a Republican president to serve as attorney general.

Ray Randolph

Second is Judge Raymond Randolph of the U.S. Court of Appeals for the District of Columbia Circuit. Randolph is a former law clerk to the famed Judge Henry Friendly, then served as assistant solicitor general under Robert Bork and later as a deputy solicitor general, before being appointed to the D.C. Circuit by Bush 41 in 1990. Experienced at navigating political waters, Randolph could handle a Democrat-controlled House as well as anyone and knows everyone who is anyone in the capital. He also knows DOJ.

Although Randolph knows DOJ, his challenge is one that he shares with Jones: He has never run a large operation. Once again, a strong deputy and chief of staff could be the cure.

Randolph’s wife, Lee O’Connor, is a former assistant attorney general and likewise a high-powered and politically savvy legal mind.

Steven Bradbury

Third is Steven Bradbury, currently general counsel at the U.S. Department of Transportation (DOT), who formerly clerked for Justice Clarence Thomas and later served as assistant attorney general in charge of DOJ’s Office of Legal Counsel (OLC), the elite legal team that is essentially the general counsel’s office for the entire U.S. government. Currently, he manages a team of around 600 lawyers at DOT.

Bradbury is a principled originalist, one who not only knows DOJ very well as a senior officer but has now also served for two years in the Trump administration and has his finger on the pulse on the politics and legal controversies of the moment as well as the various players on the political field.

The challenge for Bradbury would be that the other names under consideration carry more weight, not because of anything lacking in his resume but rather because of the enormous gravitas of the others. But having held two Senate-confirmed positions with great responsibility, no credible person has expressed doubt that Bradbury lacks what it takes to fill this critical cabinet role.

Charles Cooper

Fourth is Charles Cooper, who started his career in 1978 as a law clerk to Justice William Rehnquist, and later served as an attorney in DOJ’s Civil Rights Division under President Ronald Regan. He then was confirmed by the Senate as Reagan’s pick to be assistant attorney general leading OLC during Reagan’s second term, the same position formerly held by Rehnquist and by Justice Antonin Scalia, and subsequently held almost 20 years after Cooper’s tenure by Bradbury. Since the Reagan years, Cooper has become one of the most distinguished constitutional attorneys and Supreme Court litigators in the nation, including being the frontrunner to be President Trump’s solicitor general until Cooper took himself out of consideration.

He is a favorite of many in the conservative movement, frequently representing the National Rifle Association and other top conservative organizations in court, and a prominent leader in the Federalist Society. He mentored and launched the careers of countless household conservative names in the law, including Sen. Ted Cruz, Judge James Ho of the Fifth Circuit, former Associate Attorney General Rachel Brand, and current Solicitor General Noel Francisco (who would have been Cooper’s top deputy if Cooper had taken the SG position). When he led OLC, Cooper selected as one of his deputies yet another promising young attorney, the eventual Justice Samuel Alito. He is seen as one of the most accomplished and capable political operators in Washington, a rare skill set to couple with his famed legal capabilities.

Cooper’s challenge is that he is closely tied to former Attorney General Jeff Sessions, with whom he has been friends since the Reagan administration. Cooper helped get Sessions confirmed as attorney general, and represented Sessions in his private, personal capacity during the controversies of the past two years.

Other respected conservative names are also being floated by others, including three from Texas: Sen. Cruz, Attorney General Ken Paxton, and Rep. John Ratcliffe.

Also as mentioned above, still other names are being pushed by various groups but are regarded as falling short on one of the three criteria that the nation’s leading legal conservatives think the president needs for DOJ.

Whitaker is doing such a fine job on each of those matters as acting attorney general that some leaders are increasingly saying that perhaps President Trump could just nominate him as the permanent holder of that office. If the president does so, then he would need to name a new acting AG, because the Vacancies Reform Act would not allow Whitaker to be both the nominee for attorney general and the acting attorney general at the same time. But if the president is sufficiently impressed with his current placeholder, he could go that route.

National leaders at the Federalist Society convention discussed each of these names, arguing in favor of one or another, during the entire event last week. The one thing people agreed on is that the president can take all the time he needs to get this one right because key parts of his agenda hang in the balance.

Ken Klukowski is senior legal editor for Breitbart News. Follow him on Twitter @kenklukowski.


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