Brooke Gladstone: From WNYC in New York, this is On the Media, I'm Brooke Gladstone. We're one week into the United States Supreme Court's new term.
News Presenter 1: The justices are returning to the bench under a cloud of ethics controversies and with public opinion of the court at a historic low.
Brooke Gladstone: About that cloud, one news organization has done more than most any to expose how some members of the bench have violated ethics and rejected norms, and that organization has been our partner in the investigation you're about to hear. It's part two of our three-part collaboration with ProPublica called We Don't Talk About Leonard, an investigation into the rise of the conservative legal movement, and Leonard Leo with a secret behind its stunning success. In this hour, reporters Andrea Bernstein, Ilya Marritz, and Andy Kroll will be our guides. Last week, Andrea took us back to Leo's earliest days-
Andrea Bernstein: I'm looking for yearbooks.
Brooke Gladstone: -his high school in New Jersey.
Andrea Bernstein: Okay. I've got the '83 book. I'm opening it up.
Brooke Gladstone: We heard from a former classmate about his deep interest in the law and his convictions.
Snehal Shah: He was always passionate about being anti-abortion. He was very steadfast in that belief.
Brooke Gladstone: We learned about a college professor who was an important early influence.
Jeremy Rabkin: The law schools are overwhelmingly tilted to the left, certainly in the area of constitutional law.
Brooke Gladstone: We charted the rise of Leo's influence on the conservative movement, his decades-long association with the Federalist Society, an avid promoter of conservative legal doctrine whose mantra is "ideas have consequences."
Amanda Hollis-Brusky: More importantly, that policy is people. You have to connect those ideas to the right people who have access to the levers of power.
Brooke Gladstone: We saw how he built a network of nonprofits.
Vivica Novak: What you had was a daisy chain where donors were giving money to one group. The group didn't have to disclose its donors. They'd give money to another group. That group didn't have to disclose its donors.
Brooke Gladstone: Finally, how Leo shifted his attention from the US Supreme Court to the state Supreme Courts.
Wolff: It's not enough to own a house and own a Senate and own a governor. We got to own courts too so that-- It is a power grab. There's no question about that. That's the way you control the court.
Brooke Gladstone: Leo said as much himself.
Leonard Leo: In fact, one can very ably argue, I think, that state supreme courts are in many cases where the rubber really meets the road.
Brooke Gladstone: In this episode, Ilya, Andrea, and Andy will explain how Leo, the people as policy guy is busily constructing pipelines of well-placed legal talent in state governments too. Here's Ilya.
Ilya Marritz: Mike Black is an attorney in Montana. He got his degree from Cornell Law in the late 1980s which is where he crossed paths with Leonard Leo.
Mike Black: Leonard Leo was in my law school class. We lived in the same dorm the first year of law school.
Ilya Marritz: Black says Leonard Leo stood out. For one thing, he looked young. He was young. He got his undergraduate degree and law degree in just six years.
Mike Black: I don't even think he was old enough to drink. I don't think he was even 21 years old at the time.
Ilya Marritz: Like other classmates we've spoken with, Black remembers Leo for wearing suits to class. It was a vibe.
Mike Black: He had an agenda, he had an ideology, and he was very serious about it.
Ilya Marritz: Leo had founded the Cornell Law chapter of the Federalist Society. It was a pretty new organization then, and Black didn't see them or Leo going far. It was all this talk about the original meaning of the Constitution at the time the founders wrote it.
Mike Black: It wasn't something that I personally took very seriously, and frankly, I was clearly wrong because I should have taken it more seriously.
Ilya Marritz: After Cornell, Mike Black ended up in Montana practicing law. For nearly a quarter century, he did not think about Leonard Leo. In 2013, Mike Black is working for the Montana Attorney General as a career employee heading up the Civil Division. The AG just changed from a Democrat to a Republican, so there are a bunch of new people in the office. Black has something to discuss with one of them. He takes a walk down the hall to speak with his new colleague.
Mike Black: I went into his office, and on his bookshelf were all these bobbleheads. There was like Scalia for sure, and I think probably Alito. There were like four or five, I don't remember how many there were. Then there was this one younger-looking guy, and I said, "Well, who the heck is this?" He goes, "That's Leonard Leo."
Ilya Marritz: Black looks at his colleague, a man named Lawrence VanDyke, the Montana Solicitor General. He looks at the bobblehead doll, a miniature of someone he used to know.
Mike Black: I think I laughed, and I told Lawrence that, "I went to law school with Leonard, and I can't believe that there's a bobblehead doll of him." It was clear that Lawrence was enamored with Leonard, and considered him a friend, and ultimately I think it's been borne out that Leonard Leo was a patron of Lawrence VanDyke. At the time, I just thought it was funny.
Ilya Marritz: Leonard Leo was on that shelf of bobbleheads alongside Supreme Court Justices. It's a visible manifestation of the work he's done to shape the court. If that's all he did, he wouldn't be as influential as he is today, because the justices would only be hearing those cases that happened to get to them. Leo has done something maybe more impressive, something not many people know about. He's built a system that makes it much more likely that the right cases get to the high court, the cases he and his ideological brethren believe are most likely to nudge the law in the direction they think it should go.
He does this by taking an active interest in other parts of the legal world, lower court judges, state courts, state attorneys general, and solicitors general, people like Lawrence VanDyke, the owner of the Leonard Leo bobblehead doll.
Lawrence VanDyke: I was like, "Solicitor? That sounds like, does he wear a wig? What is that?"
Ilya Marritz: This is Lawrence VanDyke, reflecting back on the start of his career on a recent podcast.
Lawrence VanDyke: I definitely didn't know anything about solicitor generals. That was the first time I heard the term, and I thought it was a funny term at the time.
Ilya Marritz: It was new to me too, when we started this reporting. I got interested after speaking with a former Republican attorney general. This AG told me that solicitors general play a pivotal role in Leo's system. In most states, the elected attorney general chooses his or her solicitor general, and it's the solicitor who argues the state's big cases in the Supreme Court and appeals courts.
News Presenter 2: The Supreme Court struck down President Biden's plan to cancel up to $20,000 in student loan debt for millions of Americans.
News Presenter 3: Despite growing dangers from climate change, tonight the US Supreme Court curbing the government's power to fight it.
News Presenter 4: An ideologically split US Supreme Court has upheld Ohio's controversial use-it-or-lose-it voting law. It allows the state to automatically purge people from its list of registered voters if they fail to vote for two consecutive elections and fail to return a mailed postcard confirming their address.
News Presenter 5: The federal appeals court has ruled that the Biden administration likely overstepped First Amendment protections when it urged social media companies to remove misleading or false content about COVID-19 and other issues like election integrity.
News Presenter 6: The US Supreme Court has blocked President Biden's vaccine or test mandate for large private companies. Today, it essentially ruled that OSHA, the federal workplace safety agency, exceeded its authority with the mandate.
Ilya Marritz: State solicitors argued and won all of these, including the conservative legal movement's biggest victory.
News Presenter 7: Roe v. Wade is history. That landmark 1973 ruling that said a woman had a constitutional right to abortion now goes back to the states.
Ilya Marritz: These victories can be traced back to the extraordinarily effective long game played by Leonard Leo and the groups around him. It's an effort that unfolded mostly out of sight before the first briefs were filed. To really see it, you'd need to be plugged in to the Federalist Society.
Leonard Leo: We're going to have a conversation this morning about state attorneys general. This is an issue of great importance to the Federalist Society.
Ilya Marritz: This is Leonard Leo at a Federalist Society gathering in 2015 introducing a panel discussion on the role of AGs. This coincided with his ongoing push for state Supreme Court changes which we heard about in episode one.
Leonard Leo: We're seeing an unprecedented amount of activity by state AGs, particularly with regards to pushback against federal overreach that oftentimes comes in the form of litigation.
Ilya Marritz: By this point, Barack Obama is in his second term as president. Conservatives are fighting the Affordable Care Act and resisting new regulations put in place after the 2008 financial crisis.
Leonard Leo: Not only are there an unprecedented number of lawsuits being brought against the federal government by state AGs, but an unprecedented number of state AGs joining in each of those lawsuits. It's a very interesting time.
Ilya Marritz: What's really interesting is what Leonard Leo was doing behind the scenes. One, and this is classic Leonard Leo, a group he had influence over in an informal way was pouring money into a group that in turn put money into elections for State Attorneys General. In 2014, the AGs campaign group, the Republican Attorneys General Association, became a standalone group called RAGA. The first 17 contributions were each for $350. Then came a contribution for a quarter of a million dollars. It was from the Judicial Crisis Network, a group formerly known as the Judicial Confirmation Network, or JCN, a Leo-connected entity that, among other things, funnels money into campaigns.
Under a different name JCN remains RAGA's biggest and most reliable funder today. Two, he was organizing them. RAGA has a sister group dedicated to policy. The Judicial Crisis Network also funds it. They do weekly calls where solicitors share what they're doing. The calls are Thursday afternoons. There are regular retreats and seminars where these days scholars and activists talk about issues like election integrity and woke corporations. The effect of this is to draw state AGs' attention and resources into national policy issues. Their are more typical bread-and-butter focus would be consumer protection or Medicaid fraud. On that podcast, Lawrence VanDyke explained it like this.
Lawrence VanDyke: If you have the right position in state government, you'll get to sort of have this national practice.
Ilya Marritz: Lastly, there's personnel. When a Republican AG has an opening, I've been told by a former state AG, Leo has suggested the names of potential staffers pre-vetted for ideology and skills. He won't say, "Hire this person" in a bossy way. He'll say, "This is a good guy. You should check him out." One such guy was Lawrence VanDyke, owner of the Leonard Leo bobblehead doll.
Montana is a state that sometimes has a hard time attracting the most highly qualified candidates. When Lawrence VanDyke arrived, people noticed. He graduated magna cum laude from Harvard Law. He was an editor on the Harvard Law Review. On a podcast recently VanDyke said, "That put him on a path."
Lawrence VanDyke: While I was in law school it was a combination of being on law review and being very interested in religious liberties. Made me more interested in the appellate legal issues route.
Ilya Marritz: After law school, he goes to work at a big Republican-oriented law firm in Washington under the tutelage of the son of a Supreme Court Justice-
Lawrence VanDyke: I worked very heavily with Gene Scalia doing labor stuff, but mostly admin law and of course clerking on the DC circuits.
Ilya Marritz: -before becoming Assistant Solicitor General briefly in Texas. For all those qualifications, attorney Mike Black found there were things VanDyke couldn't or wouldn't do.
Mike Black: Obviously very bright, writes well, very opinionated, but he wasn't very seasoned as a lawyer. He didn't understand the nuts and bolts of what we did every day very well.
Ilya Marritz: Like establishing the facts of a case through discovery and depositions.
Mike Black: Not only did he not understand the nuts and bolts, he didn't seem particularly interested in learning what they were.
Ilya Marritz: Black says and others in the Montana AG's office told us the same, "If a case didn't line up with VanDyke's views, he didn't want to take it." One example was a Montana law that restricted political spending in state judicial races.
Mike Black: This was a hard case to defend. Don't get me wrong. We were defending a restriction on speech in an election, which is a tough road to hoe, but at least with respect to the history of Montana and the culture of our elections, it was an important case.
Ilya Marritz: Like the law or not Black thought it was VanDyke's job as solicitor to defend it. He didn't.
Mike Black: He literally refused to get involved.
Ilya Marritz: Lawrence VanDyke declined to do an interview with us and did not answer a detailed list of questions. We can tell from his emails from that time that what lit VanDyke up were cases about national issues involving religion, guns, and out-of-state litigants. For example, he recommended that Montana join a challenge to New York's restrictive gun laws passed after the Sandy Hook School massacre adding as an aside in an email, "Plus semi-automatic firearms are fun to hunt elk with as the attached picture attests smiley face."
Mike Black: He liked guns, he liked shooting guns, he liked talking about guns. He thought that concealed carry should be a right.
Ilya Marritz: While he was solicitor VanDyke served on two Federalist Society executive committees on religious freedom and separation of powers. He communicated regularly with Federalist Society officials and allied law professors. He persuaded Montana to join suits and amicus briefs that mattered to this crowd, like a contraception in healthcare case known as Hobby Lobby. It resulted in the US Supreme Court recognizing, for the first time, a private company as having religious rights.
Mike Black: I think he had aspirations clearly to do something beyond being the solicitor in Montana.
Ilya Marritz: Mike Black was older and more experienced. Lawrence VanDyke was young and bright and equal to him on the org chart. You could chalk up their friction to rivalry or a personality thing, but there was something else. They seemed to have totally diverging views on what VanDyke was there to do. Lawrence VanDyke arrived in the Montana AG's office at a time when his job, Solicitor General was dramatically changing. Paul Nolette, a political science professor at Marquette University, told me that just a decade or two ago, not that many states had solicitors. It was a dead-end job.
Paul Nolette: Something that didn't offer a whole lot of career advancement was not a way to elevate one's name in legal and political circles.
Ilya Marritz: Mainly solicitors argued cases that were being appealed through state courts. These lawsuits typically didn't attract much attention. Then State Attorneys General started to use their solicitors general differently. They could appoint and deploy them to make big moves on hot-button issues.
Paul Nolette: Even in those smaller states like Nebraska and Kansas, these offices Oklahoma amongst Republican AGs, these offices have been some of the strongest pushback against the Obama now Biden administrations. These are high-profile positions.
Ilya Marritz: These jobs don't pay anything like what you could make at a big law firm. For conservative jurists becoming SG is a form of early career credentialing that can pay off down the road.
Paul Nolette: A number of them have gone on to judgeships, have gone on to other high profile positions within the judiciary.
Sarah Isgur: Welcome to Advisory Opinions. I'm Sarah Isgur.
Ilya Marritz: They talked about this recently on the podcast Advisory Opinions. It's co-hosted by Sarah Isgur, a former Trump Justice Department spokesperson, and former Harvard Law Federalist Society chapter president.
Sarah Isgur: We've had other state SGs on the podcast, former state SGs who all just rave about it as a job. I do want-
Ilya Marritz: In April, she brought Andrew Brasher, the former solicitor General of Alabama on her show.
Sarah Isgur: For this wonderful conversation about being a state solicitor general, the tensions, the conflicts, the fun, the tears, the joy, all of it.
Ilya Marritz: Brasher gives an insider's perspective on the job and how it's changed.
Andrew Brasher: I think the Attorney General's offices have gotten more interested in national issues, national profile over the last 30 years. We're just seeing so much litigation driving public policy that anybody with a good plaintiff, which the states are in the mix to be involved in national issues and great public policy.
Ilya Marritz: States are good plaintiffs. They're more likely than private parties to have standing to bring a case. The Supreme Court is more likely to want to hear the case and if they do, the solicitor making arguments may be a familiar face. The current crop of Republican state solicitors include former clerks to Justices Scalia, Thomas, and Alito. Sarah Isgur had a front-row seat to this. Her husband was SG in Texas and a former Justice Kennedy clerk. He too had a Leonard Leo bobblehead doll. There's a photo of it in the Texas Tribune so small world.
Sarah Isgur: Let's move a little bit more to the career side then. Advice you have for people who are listening to this and are like, "Yes, me too, dude. I want to be a state SG."
Ilya Marritz: Brasher says you have to know about the job, know you want it, and be a good networker.
Andrew Brasher: The thing is, these jobs, they don't get advertised. It's not like there's just a bulletin that's like, we need a new SG in Kentucky or something. You just have to really want to do it and to know the people who are in the position to give you the job.
Ilya Marritz: Brasher went on to become a federal judge in Alabama at age 37. In an email, he told us, "I'm not aware of anything that Leonard Leo did to advance my career at any point." In response to our questions, Leonard Leo said, "Yes, he cultivated the careers of many young lawyers among them, Lawrence VanDyke." He said he doesn't remember making phone calls on VanDyke's behalf. He didn't comment on one former AG's contention that he, Leo, sometimes suggests the names of possible new hires.
Solicitors general, he told us, are often important because they're on the front lines of defending the division of power between the states and the federal government as set forth in our constitution. Leo became interested in attorneys general. He said, "Upon discovering that many of them were not focusing on their duty to defend and protect their states against unlawful and unconstitutional overreach by the federal government. Today, unlike in years past, this has become a key part of their work."
Brooke Gladstone: Coming up, Leonard Leo has very, very big plans for Lawrence Van Dyke, but first, what do an American billionaire, a Supreme Court justice, and an Alaskan salmon, have in common?
Josh Kaplan: As we're looking at this, the only common thread between the prominent guests on that trip was that they were all connected to Leonard Leo.
Brooke Gladstone: This is On The Media.
Brooke Gladstone: This is On The Media. I'm Brooke Gladstone. You're listening to our series reported in collaboration with ProPublica called, We don't talk about Leonard. As we just heard, at the same time, Leonard Leo was helping to promote and credential new legal talent. He was also attending to practical matters, fundraising, and cultivating the kind of relationships with wealthy donors that can fuel a movement for years and even decades. ProPublica's Andy Kroll and Andrea Bernstein have this part of the story.
Andrea Bernstein: One illustration of how Leo cultivated relationships among donors and justices is a fishing trip Justice Samuel Alito took to Alaska. It happened in 2008, but the world didn't learn about it until this year. It made a splash.
News Presenter 8: A new report from ProPublica claims Samuel Alito accepted a lavish vacation from a conservative billionaire with frequent business before the high court.
News Presenter 9: See the guy in the red in the middle of the picture holding the gigantic fish, that is Justice Samuel Alito.
News Presenter 10: Now in an unusual move, Alito is defending himself in the press, writing in a Wall Street Journal op-ed, that the seat on the plane on Paul Singer's private jet would otherwise have been unoccupied.
Andrea Bernstein: It was our ProPublica colleagues, Justin Elliott, Josh Kaplan, and Alex Mierjeski, who broke the story. They figured out that Alito had taken a flight on a private plane paid for by a hedge fund manager named Paul Singer. Singer and Alito stayed at a fishing lodge at the invitation of Californian Robin Arkley. He owns a mortgage servicing company. Josh says, "At first it wasn't clear what linked Alito and Singer and Arkley." Then it came to them.
Josh Kaplan: The only common thread between the prominent guests on that trip was that they were all connected to Leonard Leo.
Andrea Bernstein: Singer was a big-dollar federal society donor. Robin Arkley provided seed money for the judicial crisis network, that Leo connected group. Leonard Leo himself was on the trip. There's a photo of Leo with other guests holding a big fish in front of a seaplane. Another guest on the outing was a federal judge named Raymond Randolph. Leo clerked for him after law school.
Josh Kaplan: As we were digging on this, we learned that Leo actually-- He helped organize it. He played an important role in connecting Alito with this billionaire. Leo was the one that invited the billionaire, Singer on the trip. Leo asked Singer if he and Alito could fly there on the billionaire's jet.
Justin Elliott: Leo actually secured these very expensive private jet flight across the country for a sitting Supreme Court justice.
Andrea Bernstein: That's Josh's co-reporter, Justin Elliott. They got their hands on an email chain.
Justin Elliott: In which after they got back from the fishing trip, Paul Singer had apparently expected to receive a shipment of salmon, and it never arrived in New York where Singer lives. Singer actually sent an email to Leo about this half-jokingly saying, "The salmon, they've escaped." Then Leo in turn forwarded that along to another donor, this guy Rob Arkley, who owned the fishing lodge where they hosted Alito where the fishing trip happened, to take care of it and get Paul Singer his salmon.
Andrea Bernstein: Justice Alito has acknowledged the trip and said there was no need to inform the public because "accommodations and transportation for social events were not reportable gifts." If Alito had chartered the plane himself, people in the industry estimate, the flight alone could have cost him $100,000 one way. Singer told ProPublica he did not organize the trip and did not discuss his business with Justice Alito.
Andy Kroll: This Alaska trip was the first time Singer and Alito met, and Alito must have impressed Singer because by 2010 he was introducing the Justice at a black-tie dinner.
Paul Singer: Dessert this evening comes with a lecture by one of America's greatest and most influential legal minds, the Honorable Samuel Alito.
Andy Kroll: Singer calls Alito a "Model Supreme Court Justice."
Samuel Alito: Thank you all very much. Thank you. Thank you for the very warm welcome and thank you, Paul, for the very kind introduction. How is that? Can you hear me okay?
Andy Kroll: Alito and Singer intersect again in 2014 when Singer has a case before the US Supreme Court. A unit of Singer's hedge fund had purchased distressed Argentinian debt years earlier. Argentina's repaying its other creditors pennies on the dollar.
Andrea Bernstein: Singer insists his fund must be repaid in full.
News Presenter 11: Argentina will default on its obligation to bondholders tomorrow if nothing changes. Argentina's president, Cristina Fernández de Kirchner blames the brinksmanship on, "Vulture capitalists picking at the bones of Argentina's economy." Paul Singer, the billionaire bondholder calling in Argentina's loan says any damage is self-inflicted.
Andrea Bernstein: Singer takes the fight all the way to the US Supreme Court, and he prevails. Justice Alito votes with the 7 to 1 majority in favor of the hedge fund. There was quite a bit of press coverage at the time. Justice Alito has said he didn't know Singer was involved since Singer, as an individual, was not a named party to the lawsuit. When our colleagues asked Leonard Leo about the fishing trip. He said of the justices, "No objective and well-informed observer of the judiciary honestly could believe that they, the justices, decide cases in order to call favor with friends, or in return for a free-plane seat or fishing trip."
Andy Kroll: There's another way to look at the Justice Alito, Leonard Leo, Paul Singer triangle. Getting close to a Supreme Court justice, people in Washington have told me, is a huge flex. Andrea and I spoke to someone who did this, an evangelical minister, the Reverend Rob Schenck. He was a longtime anti-abortion activist but came to regret some of his tactics.
Andrea Bernstein: Reverend Schenck and Leo were not in the same circle, though they worked on the same issues. Schenck told us how he first got close to Supreme Court Justices Thomas and Alito. He uses the term, feet of clay, a biblical reference to weaknesses in powerful people.
Reverend Rob Schenck: It didn't take long for me to see their feet of clay, but it was my experience in pastoral work, in congregations, that helped me to appreciate that every human is fragile, every human is corruptible. Just because someone dawns a robe, just because they are one of a rare nine, just because they sit so far removed from average people, does not make them superhuman. They are human in every way.
Andy Kroll: "He could use that closeness," Schenck says, "To appeal to donors."
Reverend Rob Schenck: How many people do you know who have set a prayer with a justice in chambers? How many people do you know who have taken a justice on a vacation trip and talked into the late night hours over a drink, traded stories? I'm going to guess none. That's what makes our work unique, and it makes the impact of our work unique.
Andrea Bernstein: As ProPublica has learned, Leo himself brought wealthy donors to the US Supreme Court, a secretive group put together by Paul Singer. It was March of 2017.
Andy Kroll: This is actually an organized group of rich Republican donors who meet twice a year. That spring, they were in Washington DC, and Leonard Leo arranged a private meeting with Clarence Thomas inside the court. Afterwards, the donors, including Paul Singer, were treated to a gala dinner inside the Library of Congress, which is a beautiful historic building right next door.
Andrea Bernstein: "A year and a half later," this person said, "When Brett Kavanaugh, Supreme Court nomination was running into trouble, Leo turned to the group of wealthy donors to raise money for an ad campaign to counter all the negative press. Leonard Leo acknowledged the meeting with Thomas at the Supreme Court. In an email, he said some of the people in the group were not his donors. "But they are thought leaders who should know more about the Constitution and the rule of law. I was happy to arrange for them to hear about these topics from one of the best teachers on that I know, Clarence Thomas."
Brooke Gladstone: Coming up, what Leo did when Congress passed a law that one of his donors hated. This is On The Media. This is On The Media. I'm Brooke Gladstone with more of our series, We Don't Talk About Leonard. Before the break, we learned how Leonard Leo used his closeness to some Supreme Court Justices to cultivate big donors like billionaire, Paul Singer, and how Leo promoted legal talent like Lawrence VanDyke. Those two streams, donor money and legal firepower joined forces about a decade ago. Singer was angry about policies made in Washington. Leo activated his network in the states against those policies.
Ilya Marritz: Here's how it happened, you remember the financial meltdown of 2008?
News Presenter 12: Shock and panic evident on the faces of those on the trading floor.
Ilya Marritz: In response, there was no overhaul of banking rules designed to prevent another crisis.
Barrack Obama: These reforms represent the strongest consumer financial protections in history.
Ilya Marritz: The new laws spurred a powerful, long-lasting counter-reaction.
News Presenter 13: The Tea Party forged in frustration, fed up and fighting mad.
Ilya Marritz: The Tea Party movement embodied the popular outcry, but a more targeted campaign came from people like Paul Singer.
Paul Singer: Did Dodd-Frank create a safer system? No, it created a more brittle system.
Ilya Marritz: Here he is in 2011, Singer chops and pinches the air with precision. He rarely cracks a joke. He assumes his Federalist Society audience knows exactly what he's talking about as he delivers a broadside against new powers granted to regulators, including the FDIC, to dissolve financial institutions on the brink of failure. That's called Orderly Liquidation Authority, Singer uses the acronym, OLA.
Paul Singer: The FDIC can seize companies that are in danger of default, not which have defaulted. The whole process of throwing a company into the OLA is very truncated. A day or two, it's really unreviewable because of that truncation.
Ilya Marritz: Before the financial crisis, Singer warned about the risks of subprime mortgages. Now, he says, the danger is bad regulation.
Paul Singer: What the ironically named Orderly Liquidation Authority will do is create a much more intense and powerful effect than even 2008, a black hole in the next crisis. I do not look forward to, if and when, this procedure is contemplated or thought to be on the horizon.
Ilya Marritz: That was in late 2011. Singer didn't just give speeches. In 2012, he and Leonard Leo scheduled a conference call with the then Attorney General of Texas, Greg Abbott. He's now the governor. Leo actually had three meetings on the calendar with Abbott in the space of just a few months. One of them was described as phone call Dodd-Frank issue. We know all this from records obtained by the group accountable by US. A small Texas bank sued to block the Dodd-Frank law. Their lawyers were also invited. Not long after, Texas joined this small bank's lawsuit as a co-plaintiff.
10 other Republican AGs went along as well. They also added a new argument, Orderly Liquidation Authority, Paul Singer's bugaboo. They said it violated the constitution on multiple points, including separation of powers and the Fifth Amendment, which guarantees due process. One of the states that joined the suit was Montana, which meant Solicitor General Lawrence VanDyke, became one of the lawyers on the case.
A person with knowledge told us that before Montana joined, Leonard Leo called Attorney General Tim Fox, the person who worked for Fox was emphatic that Montana would not have joined the challenge to the new banking law without Leo's push. Fox went on the radio and said it was about standing up for Main Street.
Attorney General Tim Fox: What we're seeking to do is protect Montana's interests and the little guy in all of this That Dodd-Frank Bill, came out of Congress as a reaction to the 2008 financial crisis. Many have called it an overreach of the federal government.
Ilya Marritz: Others did not see it that way. One Republican AG who didn't join the case told us it wasn't critical to his state's interests. A high-ranking person in Texas AG, Greg Abbott's office told us they didn't believe the suit was well founded and thought it would likely fail. Other parts of Leo's network did get active though. In its annual tax return, the Judicial Crisis Network reported spending money on media "surrounding the filing of a lawsuit over the Dodd-Frank law."
When Indiana's Republican Attorney General did not sign on to this lawsuit, the Washington Times ran an opinion piece by JCN's policy counsel, speculating that Indiana's AG may have been motivated by "strong alliances with Wall Street banks." In 2015, the skeptics of this lawsuit were proven right. A federal judge tossed the challenge to Orderly Liquidation Authority, and the AGs dropped out of the case.
It was a loss, but consider this, the chief legal officers of 11 states, and we know states make great plaintiffs, opposed a law that a billionaire Federalist Society donor despised. The argument against Orderly Liquidation Authority was considered by a federal appeals court the last stop before the Supreme Court. Paul Singer did not respond to our questions about this. Greg Abbott, the former Attorney General and current governor of Texas, did not respond to a request for comment. Former Montana Attorney General, Tim Fox, declined an interview.
Leonard Leo wrote in response to our questions that he favored a challenge to an agency created by the Dodd-Frank Law, the Consumer Financial Protection Bureau "because the CFPB violated the separation of powers and the checks and balances set forth in the Constitution." He told us he didn't remember a phone call with Texas AG, Greg Abbott, and Paul Singer, and he didn't remember calling Tim Fox to urge him to join the suit. I called a former aide to Fox to ask about Leo's role in setting policy in that office. He declined to go on the record, but before hanging up on me, he whispered two words, "Puppet master."
By the time the DC Court of Appeals denies 11 states' challenge to Orderly Liquidation Authority, the political winds have shifted dramatically. Donald Trump is running for president. He's well ahead in the race for the Republican nomination in February of 2016 when Justice Antonin Scalia dies of a heart attack while on a quail hunting trip in Texas. President Obama picks what he regards as a safe choice confirmable even for some Republicans.
Barrack Obama: Today, I am nominating Chief Judge Merrick Brian Garland to join the Supreme Court.
Ilya Marritz: Leo's judicial crisis network responds by pouring money into radio and television ads attacking Garland. Like the ads to support Alito and Roberts, they ran a decade earlier, these messages are meant to define the debate before it begins.
JCN Ad: Obama and his liberal allies have been working hard to paint Garland as a moderate for the Supreme Court, but there is no painting over the truth. Garland would be the tie-breaking vote for Obama's big government liberalism. The Second Amendment right to keep and bear arms, gutted, partial-birth abortion, legalized.
Ilya Marritz: The Senate majority leader, Mitch McConnell, refuses to hold a vote.
Mitch McConnell: The next president will be making this choice. The people will decide who should be the appointing authority, so no, he will not be considered by the Senate.
Ilya Marritz: A decade earlier, Leonard Leo sharply attacked the Missouri Plan, a system for selecting state court judges in a nonpartisan way. That effort failed. This time, the strong arming, the willingness to blow up norms to achieve goals, it succeeds. The choice of the next Supreme Court. Justice will fall not to the current president, but to the next one. With his unlawyerly racist rhetoric candidate, Donald Trump makes a lot of people in the conservative legal crowd uncomfortable. Leonard Leo meets with Donald Trump and something happens. Trump emerges from that meeting with a list, a list of judges he says he will draw from in appointing the next Supreme Court Justice. He brags about it like he himself has just been credentialed. In a way, he has.
Donald Trump: I'm appointing, you saw the 11 names I gave, and we're going to have great judges, conservative, all picked by Federalist Society.
Ilya Marritz: With this list, Leonard Leo, who for so long stayed out of the spotlight, becomes a character of interest to the news media and he gives interviews.
News Presenter 14: Joining me now, Leonard Leo, attorney, judicial advisor to the president.
News Presenter 15: Leonard Leo, welcome to Firing Line. There's no pulling the wool over the American people's eyes. President Trump was quite straightforward--
News Presenter 16: Leonard Leo, can you share with us how this list came about and how you decide who should make the list?
Leonard Leo: Well, the list was the president's idea. I told him that no one had ever done it before, but it was--
Amanda Hollis-Brusky: I think Leonard Leo made a calculated choice to come out in front of this issue in 2016.
Ilya Marritz: Pomona College Law Professor Amanda Hollis-Brusky is the author of a book about the Federalist Society titled, Ideas with Consequences.
Amanda Hollis-Brusky: I think that choice reflects what he and other members on the conservative side thought was a fork in the road where if Hillary had won that election and filled that Supreme Court seat, we end up with perhaps the most progressive court since the Warren Court. This kind of catastrophic thinking led Leonard Leo to make the calculation that he would get out in front of it because it would benefit Trump to have folks who would otherwise be Never Trumpers see him standing alongside the president and know that they were voting for the courts.
Ilya Marritz: Trump himself has said the list of judges helped him win the presidency but it made some Federalist Society quizy.
Andrew Redleaf: I saw the repeated references to the Federalist Society list as a existential threat to the organization.
Ilya Marritz: Andrew Redleaf goes way back with the founders of the Federalist Society. They were his close friends in college.
Andrew Redleaf: That became my primary social circle at Yale.
Ilya Marritz: Andrew Redleaf went on to a successful career in finance. In a typical year, he might donate $100,000 to the Federalist Society with his wife Lynne. Sometimes they'd give as much as $300,000. You can see Redleaf's name right there with Paul Singers in the annual list of top donors. In 2016, Lynne and Andrew Redleaf are seriously questioning their philanthropic choices.
Andrew Redleaf: I was an original Never Trumper-
Ilya Marritz: When Trump comes out with the list, the Redleafs are horrified. Redleaf makes a dinner date to see the president of the Federalist Society, Eugene Meyer, who happens to be an old friend.
Andrew Redleaf: I suggested that they really needed to treat this as a PR crisis. I strongly suggested that Leonard couldn't really come back.
Ilya Marritz: Redleaf even offers help in hiring a crisis PR specialist to distance the Federalist Society from Leo's support of Trump. The Federalist Society do not do this.
Andrew Redleaf: I suspect that a significant portion of their support now wants them to be the organization that advocates for the confirmation of conservative judges or that that's staffing for various agencies. I think a significant portion of their base is there because of Leonard.
Ilya Marritz: Redleaf asked that his name be removed from the Federalist Society Board of Visitors. The Federalist Society did not respond to our questions. Leonard Leo told us in a statement, the Federalist Society today is larger, more well-funded, and more relied upon by the media and thought leaders than ever before adding "so much for Mr. Redleaf's existential threat." Leonard Leo did step away from the Federalist Society to advise President Trump. Amanda Hollis-Brusky calls this move a Jedi mind trick.
Amanda Hollis-Brusky: The Jedi mind trick is that we're all supposed to believe that he is on leave from the Federalist Society and that that is meaningful in some way. It means he's not acting on behalf of the Federalist Society. It means he is not making decisions that are consistent with the Federalist Society's agenda, principles, and priorities. Because we're not subject to the Jedi mind control, we can look with our eyes and see that that's exactly what he's doing.
Donald Trump: Leonard Leo, thank you for being here. We had a list that you worked on very hard.
Ilya Marritz: Leo never takes a formal role with the Trump administration, but he makes his mark early. Even before Trump is sworn in, in December 2016, Leo sounds out a judge on the Tenth Circuit Court of Appeals, Neil Gorsuch, to fill the vacant seat on the Supreme Court. He was on candidate Trump's second list of possible justices. Gorsuch wrote in his Senate questionnaire, "On about December 2nd, 2016, I was contacted by Leonard Leo, who was working with the president-elect transition team regarding the Supreme Court vacancy. I had additional follow-up communications with Mr. Leo shortly thereafter."
After being tapped by Leo, Gorsuch is interviewed by incoming White House counsel Don McGahn, who himself is a long-time Federalist Society member. Then he's nominated and confirmed to a lifetime seat on the High Court by the Senate. The pattern repeats. Leo is influencing not only Supreme Court nominations but also the choices for federal judges at all levels. By the end of 2020, Trump has appointed 28% of all sitting federal judges. More than half of these new judges are Federalist Society members.
News Presenter 17: President Trump began his term having to fill 150 vacancies in the federal courts.
News Presenter 18: The Senate confirming its 200th judge of the Trump administration.
News Presenter 19: There has been one constant in the Trump administration, a steady stream of the president's judicial nominees to federal courts from one end of the country to the other.
Donald Trump: You know when I got in, we had over 100 federal judges that weren't appointed. I don't know why Obama left that. It was like a big, beautiful present to all of us. Why the hell did he leave that?
Ilya Marritz: In 2019, Trump makes yet another nomination to the federal bench.
Lawrence VanDyke: Thank you, Chairman Graham, Ranking Member Feinstein, and committee members. Thank you--
Ilya Marritz: The former Solicitor General of Nevada and Montana, bobblehead owner Lawrence VanDyke.
Lawrence VanDyke: I'm deeply honored and grateful to be before this committee today, and I want to thank the President for the honor of this nomination.
Ilya Marritz: His path from Montana to here looks like this. After complaining that he didn't have enough say over what cases to take, VanDyke quit his Solicitor job to run for state Supreme Court.
Lawrence VanDyke: Hi, I'm Lawrence VanDyke, and I'm running for the Montana Supreme Court. Most Montanans are understandably fed up with an overreaching federal government. As a fifth-generation--
Ilya Marritz: The Federalist Society hosted the only public forum for candidates. Dark money poured into the race. VanDyke lost. He wasn't out of work for long. Leo made at least one call to an AG. VanDyke soon became Solicitor General in Nevada. There, VanDyke gets a court injunction to block expanded overtime pay. He joins friend of the court briefs on supporting religion in the public square and against greenhouse gas regulation.
Much more than in Montana, VanDyke is simpatico with Nevada's conservative AG. One former colleague told us VanDyke could have done what he did in Nevada in any state with an attorney general who happened to want to push a Federalist Society agenda. When that job ends, VanDyke goes to the Department of Justice briefly in the Environment and Natural Resources Division, where he defends Trump policies undoing earlier efforts to limit the emissions that cause climate change. This is his job when President Trump nominates him to the federal bench. To the Senate Judiciary Committee, VanDyke presents himself as a Westerner and a bit of an outsider.
Lawrence VanDyke: I followed in my father's footsteps and got degrees in engineering and management and worked in the family business. It was only later in life, after Cheryl and I had children, that we made the momentous decision to drive a U-Haul clear across the United States to attend Harvard Law School. What a culture shock for a family from the rural West?
Ilya Marritz: He's confirmed to the Ninth Circuit Court of Appeals.
Lawrence VanDyke: Thank you all. Congratulations, and that will conclude the hearing.
Ilya Marritz: Once on the bench, VanDyke quickly gets a reputation for abrasiveness. The New Republic calls him the rude Trump judge who's writing the most bonkers opinions in America. In one COVID lockdown's case, VanDyke opines that in a crisis, access to guns can be considered a "strong moral check" on government power.
Lawrence VanDyke: I thought when I became a judge, the days of advocacy are over.
Ilya Marritz: Lawrence VanDyke on the podcast, Regulatory Oversight.
Lawrence VanDyke: There's several things in our court that I think actually means that your days of advocacy are not over when you become a judge, at least on the Ninth Circuit like if you think this case is wrong, and you're trying to convince your colleagues of that. To accept people out there are like, "You know I would try to become a judge, but I just enjoy advocacy too much." Well, come to the Ninth Circuit.
Ilya Marritz: In September of 2020, President Trump releases a new list of possible nominees for the US Supreme Court. It's his fourth.
Donald Trump: Our chairs' rights are at risk including the right to life and our great Second Amendment.
Ilya Marritz: It's now the height of the presidential race so each of these names is a campaign promise.
Donald Trump: The 20 additions I am announcing today would be jurists in the mold of Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. Their names are as follows, Bridget Bade of Arizona, judge on the Ninth Circuit Court of Appeals.
Ilya Marritz: By the time Trump comes to the end of the alphabet, more than a third of the names are alumni of state attorney general offices.
Donald Trump: Lawrence VanDyke of Nevada, judge on the Ninth Circuit Court of Appeals.
Ilya Marritz: Lawrence VanDyke had been a federal judge for all of nine months. Now he was being talked about for the United States Supreme Court.
Mike Black: The first thing I thought was, I thought of the Leonard Leo of bobblehead and Leonard Leo.
Ilya Marritz: Mike Black, Leo's law school classmate and colleague of Lawrence VanDyke in the Montana attorney general's office.
Mike Black: You don't end up on that list of potential Supreme Court Justices put out by President Trump without Leonard Leo's blessing. Given the position that Lawrence is in, it's deductive reasoning. He got on that list because of Leonard.
Brooke Gladstone: Next week, Leonard Leo moves his family to an idyllic coastal village in Maine, where his vision for American society collides with American society.
Andrea Bernstein: He was writing your name on the sidewalk as you were jogging by.
Bettina Richards: Yes, again, how completely surreal is that?
Brooke Gladstone: That's next week, in the final episode of We Don't Talk About Leonard. This series is reported by Andrea Bernstein, Andy Kroll, and Ilya Marritz, and edited by OTM executive producer Katya Rogers and ProPublica's Jesse Eisinger. Molly Rosen is the lead producer with help from Shaan Merchant. Jennifer Munson is our technical director. Jared Paul wrote and recorded all the original music. Our fact-checkers are Andrea Marks and Hannah Murphy Winter.
Ilya Marritz: We'd like to say some thank yous to people who helped us to report this series. Anjeanette Damon, Lynn Dombek, Doris Burke, Justin Elliott, Josh Kaplan, Alex Meyer Jeske, Ken Schwencke, John Adams, Mara Silvers, David ArmiaK in the Center for Media and Democracy, the Campaign for Accountability, accountable.us, and many, many people from the world's Leonard Leo has moved in who didn't wish to be named. Tracy Weber is the managing editor, and Steve Engelberg is the editor-in-chief of ProPublica. I'm Ilya Maritz.
Brooke Gladstone: I'm Brooke Gladstone.
New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.