Republican National Convention in Cleveland, OH (Natan Dvir/Polaris Images/Newscom). ()
Jones Day served up a healthy serving of red meat at a panel discussion on the state of the federal judiciary on Wednesday, on the sidelines of the Republican National Convention in Cleveland.
The tone of the event—overtly partisan and often strident—appeared aimed at staunchly conservative business interests and government officials in town for the convention. The discussion, which was held at Jones Day’s offices in the city, included partner Donald McGahn II, the general counsel of the Trump campaign; partner and litigator Michael Carvin; and Sen. Jeff Sessions of Alabama.
Cleveland partner Chris Kelly, who is a co-chairman of the nonpartisan RNC Host Committee, kicked off the event by asserting that corporate America is under attack by the “chattering class and the shouting networks” and, most importantly, by policies that are damaging wealth creation and jobs. (Jones Day has earned more than $1.3 million from the Trump campaign through the end of June, according to Federal Election Committee records.)
McGahn, the general counsel to the Trump campaign, gave the most moderate presentation of the three speakers. He explained the criteria that the Trump camp had used to assemble a list of potential U.S. Supreme Court judicial nominees: judges only, no personal friends of Trump, and no one who is one of the “usual suspects” in Washington.
He noted that many consultants would have advised Trump not to specify potential nominees so early. But, McGahn added, “true to his style, he came right out into spotlight and said, ‘Here are the names.’”
Sessions, a senior member of the Senate Judiciary Committee, took special aim at U.S. Supreme Court justices Elena Kagan and Sonia Sotomayor, as well as President Barack Obama, suggesting that they are threats to the Constitution. The judges, he said, are “untethered in their judicial philosophy from the words and meaning of the Constitution.” He attacked Obama for stating that he looks for judges with empathy: “Whatever empathy is, it’s not law.”
The senator recalled one quote from Sotomayor that, he said, “still makes the hair stand on my neck.” He explained: “She said there is no objectivity, just a series of perspectives.” He suggested that the problem may be that Sotomayer and other judges aren’t sufficiently religious: “If you have secularization in the world and don’t believe in a higher being, maybe you don’t believe there is any truth.”
(In a 2001 speech, Sotomayor approvingly quoted several law professors who said “there is no objective stance but only a series of perspectives,” according to a 2009 article in The New York Times.)
Jones Day’s Carvin sounded the alarm even more bluntly. “Not to put too fine a point on it, but if Hillary Clinton is elected, we will descend into a lawless Hobbesian nightmare that we will not emerge from for at least two decades,” stated Carvin, who has handled a series of cases for conservative groups such as the United States Chamber of Commerce and the Washington Legal Foundation and for businesses challenging government rules.
Carvin cited, for example, Clinton’s “outrageous” notion that the high court should overturn its Citizens United ruling, which struck down federal restrictions on corporate campaign contributions. “Everybody knows about the kinds of activist things the judiciary has done that she’s endorsed, like same-sex marriage and Roe v. Wade and that sort of stuff,” he added.
“The parade of horribles is not simply limited to inventing constitutional rights,” he claimed. “The notion that there are moderate appointees that could come out of the Clinton administration is like saying there are moderate Iranians to deal with on the nuclear front. It’s something that doesn’t exist in nature.”
Carvin maintained that the Supreme Court is quite liberal now, and the vast majority of circuit courts have come under “undeniable liberal control.” In fact, he said, “I don’t like the federal judiciary,” though he cited the Fifth and Eighth Circuits as exceptions.
Near the end of the discussion, Sessions reminded the audience that he believes the future of the American legal system is at stake. “[The Supreme Court] gets to decide what marriage is in America,” he exclaimed. “To me, that is one of the most breathtaking overreaches I can imagine.”