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Feingold: Judicial Group Wouldn’t Be Gatekeeper for Democrat (1)

March 2, 2020, 9:51 AMUpdated: March 2, 2020, 5:51 PM

Russ Feingold, the incoming president of the American Constitution Society, said the organization is ready to help a Democratic president identify progressive legal minds for federal judgeships, but it won’t become a “gatekeeper” as the conservative Federalist Society has been for President Donald Trump.

“It’s not appropriate to turn over to a private entity basically a gatekeeper role about who gets to be a judge,” Feingold told Bloomberg Law on Friday. “The Constitution is very clear, the president is to nominate and the Senate is to advise and consent. There should not be a prior gatekeeper.”

Feingold, a Democrat who represented Wisconsin in the U.S. Senate for 18 years, will take the reins at the progressive legal group for lawyers and law students March 9. The ACS is often seen as a liberal foil to the Federalist Society, a conservative legal group where the Republican Trump has found many of his appointees in the judiciary and across the administration.

The Federalist Society didn’t immediately provide comment on Feingold’s comments.

Feingold’s stewardship comes at a “pivotal time” for the country, ACS’s board chairman Peter Karanjia said in a Feb. 26 statement announcing the former senator’s new role. The former senator echoed that sentiment during the Friday interview. This is a time of “unprecedented attack on the rule of law,” Feingold said, one that can be seen in Trump’s efforts to pack the courts with conservative judges, his treatment of the Justice Department, and his “undermining” of its traditional role in the power to pardon.

While Feingold shunned the idea that ACS would play a Federalist Society-like role for a Democratic president, he said the group is prepared to help a Democratic White House identify those progressives who could potentially fill presidentially-appointed roles, such as federal judgeships.

“That is something that ACS will be ready to do because we’re particularly well positioned to know who are some of the bright stars coming up through the legal system,” Feingold said.

The American Constitution Society has more than 200 student chapters across the country and lawyer groups in all 50 states.

Membership in ACS

The ACS and Federalist Society were recently put on the same plane when a leaked draft advisory opinion from the Judicial Conference revealed the judicial policy-making body was considering restricting membership for judges in both organizations.

“Official affiliation with either organization could convey to a reasonable person that the affiliated judge endorses the views and particular ideological perspectives advocated by the organization,” the advisory opinion said.

That letter caused a stir, especially among conservatives, who said it was a way for the Judicial Conference to limit Federalist Society membership.

For ACS, however, the critical issue isn’t membership, Feingold said, it’s whether judges will still be allowed to participate in legal events. Guarding against conflicts of interest is important, but it’s also important for judges to attend these events, he said.

“I think that’s consistent with the draft advisory opinion,” Feingold said.

Feingold said he’ll be talking to the ACS board of directors about the issue in March.

Judge Fight in 2020

As part of his new role, Feingold said he’ll be working on implementing a strategy crafted by the group that includes efforts bolstering the progressive pipeline of lawyers and law students to prepare them for legal service and supporting efforts to take on issues involving the rule of law including litigation.

And over the next few months, he said, ACS and other legal groups should focus on showing they’re up to the task of nominating progressive judges should a Democrat be elected.

Courts have typically been a more popular conservative talking point during elections, but groups like Demand Justice, a judicial advocacy organization, have been pushing the issue of judges with the 2020 Democratic candidates. The group put out its own list of potential Supreme Court nominees and held a candidate forum on the federal courts in February.

Brian Fallon, executive director of Demand Justice, called Feingold’s new role “a shot in the arm” for efforts to make courts a centerpiece of progressive politics.

Groups on the left need to better align the legal movement with the progressive base the way that conservatives have done with their base, Fallon said, adding that Feingold’s stature and network in the Senate will aid that effort.

Like Demand Justice, ACS also plans to boost the issue of courts among Democrats, Feingold said.

“I think we’ve seen enough awful attacks on the rule of law and enough bad decisions that we should certainly know by now that this is something we have to put at the top of the list,” Feingold said. “We’ll be reminding people of that.”

(Updates with comment from Demand Justice in paragraphs 18 and 19.)

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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