Brooke Gladstone: This is On The Media. I'm Brooke Gladstone. You're listening to We Don't Talk About Leonard, a series made in collaboration with ProPublica. Before the break, we heard how Leonard Leo helped pull the United States Supreme Court's center of gravity to the Right, but he didn't rest on those laurels.
Amanda Hollis-Brusky: The Right's revolution in the United States didn't happen just because you magically got five justices on the Court who agreed with you.
Brooke Gladstone: Pomona College Professor Amanda Hollis-Brusky says the highest court in the land didn't come to their recent controversial rulings by chance.
Amanda Hollis-Brusky: You needed the scaffolding for these new constitutional frameworks, and you need a broader political culture that looks at these ideas and looks at these decisions and doesn't see them as totally wacky and off-the-wall.
Brooke Gladstone: One of the big ways to inject ideas into the judicial ecosystem was from the state supreme courts. Andrea Bernstein takes it from here.
Andrea Bernstein: The 2007 edition of the Federalist Society Annual Report gushes about some "very exciting developments," including the implementation of the State Courts project.
Leonard Leo: Some of you may be wondering, why are we here talking about the merits of electing judges, and why are we here talking about state supreme courts?
Andrea Bernstein: This is Leo at a Federalist Society forum from around that time.
Leonard Leo: State supreme courts and state courts are an incredibly important part of the American jurisprudential scene. In fact, one can very ably argue, I think, that state supreme courts are in many cases where the rubber really meets the road.
Andrea Bernstein: Leo travels around, making speeches and moderating forums.
Leo: Somewhere in the neighborhood of 95% to 98% of all litigation takes place in the state courts. I dare say that many of you in this room when you're practicing law may end up trying or arguing one of your most important cases, if not your most important case, before a state supreme court or in some part of the state court system.
Andrea Bernstein: The Federalist Society puts its money where its mouth is. While Leo is making these speeches, the group spends one and a half million dollars, nearly a fifth of its budget, on its state court efforts, tax returns show. The Judicial Confirmation Network is also about to get "heavily involved" in state supreme court nominations, according to its tax returns. There's one state that's particularly important, Missouri. There's a reason for that. I got someone to explain.
Michael Wolf: [chuckles] Michael Wolf, former Chief Justice of the Missouri Supreme Court.
Andrea Bernstein: He served on the Court from 1998 to 2011. Missouri has a system for selecting justices. It's called the Missouri Plan.
Michael Wolf: This proposal, that basically became the Missouri Plan, became the Missouri Plan because Missouri was the first state to do it, and it's been copied more or less in various forms in more than 30 states. It was a big deal. I think if you could beat the Missouri Plan in Missouri, you could tell the rest of the states there is no more Missouri Plan.
Andrea Bernstein: To avoid politics in judicial selection, Missouri has relied on a nonpartisan commission of lawyers, gubernatorial appointees, and the Chief Justice to screen candidates for the state's high court.
Michael Wolf: The commission screens those candidates, sends three candidates to the governor, and the governor has to appoint one of those three.
Andrea Bernstein: The system was put in place in 1940 and stayed mostly untroubled until 2007. That's when Leo and his allies get involved. They say the Missouri Plan produced judges who were too far to the Left. They won elections.
Michael Wolf: It's not enough to own a House and own a Senate and own a governor. We've got to own the courts too, so that is- it is a power grab. There's no question about that. That's the way you control the Court.
Speaker 2: Please give a warm welcome to Governor Matt Blunt, Governor state of Missouri.
Andrea Bernstein: In the summer of 2007, Missouri is a purple state with a 36-year-old centrist Republican governor, Matt Blunt. He's the scion of a Missouri political family. His future in politics is bright.
Governor Matt Blunt: I have to say, I do want to thank you for the opportunity, though, to visit with members of the Federalist Society and--
Andrea Bernstein: He ticks off decisions the Missouri Supreme Court made that he doesn't like.
Governor Matt Blunt: Just last year, the Court struck down a voter identification law. December, the Court ruled that planned parenthood could keep nearly a million dollars it had received from state coffers in clear violation of Missouri's very clear ban on abortion funding.
Andrea Bernstein: Just before Blunt makes this speech, a vacancy has come up on the state's high court. The judicial commission is getting to work screening potential justices. Leonard Leo has been speaking to Federalist Society chapters in Missouri too. He's hosting polite, ostensibly nonpartisan forums in accordance with the Federalist Society's nonprofit status. That's public.
Privately, Leo is a lot more direct, partisan, and fierce. We know this because there are emails between Leo and Governor Blunt and Blunt's Chief of Staff, Ed Martin. The email records were obtained by the Associated Press as part of a 2008 legal settlement with the Missouri Governor's Office. Putting the pieces together years later, we found a revealing story about Leo's gloves-off approach, one that's never fully been told.
The panel is getting ready to give three names of possible state supreme court justices to Governor Blunt. Two are Democrats, out of the question. The third, Patricia Breckenridge, is a Republican, but Leo and his allies are alarmed. They don't think she's conservative enough. They collect research, they say, indicates she might not be unequivocally opposed to abortion, that she's too soft on crime.
Leo lobbies the Governor through his chief of staff Ed Martin. Leo shop sends negative research about Breckenridge to Martin who forwards it to the Governor. There are discussions about "framing up Breckenridge." Martin makes a request, could Leo send an email to Blunt, one that would appear "unsolicited"? Leo soon writes the Governor. "I was shocked to see the slate tendered by the commission the other day." Leo adds, "It would be very appropriate for you to carefully scrutinize the candidates, and if they fail to pass those tests, to return the names."
Scott Eckersley: The idea was if all three choices were equally distasteful, that there'd be a willingness to reject the panel, but it was kind of just this long shot.
Andrea Bernstein: Scott Eckersley was working as deputy counsel in the Governor's Office at the time. Leo and Federalist Society leaders pushed the idea, Eckersley and others told me, to discredit Breckenridge and spike her candidacy, then use that as leverage to upend the Missouri Plan. That's what Leo was pushing for.
Scott Eckersley: I think it was clear that they wanted to sell the Governor on rejecting the panel, which would've been a pretty out-of-character move for a pretty vanilla, run-of-the-mill type traditional Republican governor, which was what he was.
Andrea Bernstein: Word gets back to Leo, Blunt isn't going to reject Breckenridge. Leo let's loose. He writes to Martin, "If this is true and if this happens, there will be fury from the conservative base, the likes of which you and the Governor have never seen." Leo adds, "We on the outside need to decide who's on our team and treat them accordingly. On a personal note, you need to be very, very careful right now about sugarcoating the state of play. Your long-term reputation is on the line."
Martin writes a long response ending with, "I have no idea who your source is, and we have not made a decision." Leo ups the ante. He says that Governor Blunt will most certainly lose reelection "if he turns his back on this issue and thereby, turns his back on conservatives, and he will have zero juice on the national scene if he ends up picking a judge who is a disgrace." Leo does not get his way. He loses.
A person familiar with Blunt's thinking told me, Blunt felt if he didn't pick the best judge of the three, the commission would pick the worst judge of the three. This person said Blunt didn't feel threatened. Blunt approves Breckenridge. "I am sorry to let you down," Martin writes Leo. "You are a man who I admire so much and feel grateful to know." Leo responds, "Your boss is a coward, and conservatives have neither the time nor the patience for the likes of him." He adds, "It is shortsighted cowardice and leaves a big problem for many future generations of Missourians." A few months later, Governor Matt Blunt announces he will not run for reelection. He leaves politics.
Martin did not respond to ProPublica's request for an interview.
After their failure with Breckenridge, Leo, the Federalist Society, and the Judicial Crisis Network don't give up. JCN spends hundreds of thousands of dollars to convince the Missouri legislature to upend the Missouri Plan. They fail, but they'd be back. They'd learn from their mistakes. They'd come to spend tens of millions of dollars to boost their chosen judges and attorneys general all across the country, and they'd start winning, with profound implications for democracy.
That's next week in part two of our series, We Don't Talk About Leonard.
Brooke Gladstone: We Don't Talk About Leonard is made in collaboration with ProPublica. 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. Our legal team is Ivan Zimmerman, Lauren Cooperman, Jeremy Kutner, and Sarah Matthews.
Andrea Bernstein: We'd like to say some thank yous to people who helped us report this story, but whose names you won't hear in the show. ProPublica's Eric Umansky, Jeremy Kohler, Megan O'Matz, Lynn Dombek, Doris Burke, Alex Mierjeski, Mariam Elba, Ken Schwencke, Ruth Talbot, Nick Lanese, Justin Elliott, Josh Kaplan, and Brett Murphy. Missouri journalists Tony Messinger, Jo Mannies and David Lieb. And Tom Carter, C. Boyden Gray, Robert McGuire, John Malcolm, Adam White, Lisa Graves, and Evan Vorpahl of True North Research. And Nick Surgey and the team at Documented. And the many, many current and former justices, judges, elected officials, Trump administration appointees, and others who spoke to us confidentially for fear of the consequences to their careers or livelihoods if we used their names in We Don't Talk About Leonard. Tracy Weber is the managing editor, and Steve Engelberg is the editor-in-chief of ProPublica.
Thanks for listening. I'm Andrea Bernstein.
Brooke Gladstone: I'm Brooke Gladstone.
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