Federalist Society leader defends 'demonstrably conservative' Coney Barrett

Justice Amy Coney Barrett has been the object of the online right’s rage ever since she ruled against the Trump administration last week in its bid to freeze foreign aid payments.

But the person who played a pivotal role in bringing her to the court tells The Gavel the criticism is unwarranted.

“I wouldn't characterize his appointment of her as being a DEI hire,” Leonard Leo told us in a Tuesday interview.

“She's so well credentialed, she's so demonstrably conservative in her outlook on the role of the courts, that I just think that kind of mischaracterizes it.”

Other than President Trump and former Senate Majority Leader Mitch McConnell (R-Ky.), perhaps no one has played as central a role as Leo in shaping the Supreme Court’s 6-3 conservative supermajority.

A longtime leader of The Federalist Society, Leo over decades formed a conservative judicial pipeline fueled by an influential network of donors. He helped compose the lists Trump used to select his three Supreme Court nominees during his first term.

Though some of Trump’s most fervent supporters have bashed Barrett on social media, Trump himself on Sunday defended her as “very smart” and a “very good woman.”

Trump’s return to the White House has now ignited speculation that he may get to replace Justices Clarence Thomas, 76, and Samuel Alito, 74, the court’s leading conservatives and its two oldest jurists. If both step down, Trump would be the first president since Dwight Eisenhower to appoint a majority of sitting justices.

But Leo expressed caution, telling us it doesn’t appear there will be any “imminent” vacancies. Notably, Trump didn’t release a public list of potential Supreme Court nominees when he ran this time.

“If you look at the lawyers who have been appointed to serve in the current administration, both at the White House Counsel's Office and some at the Department of Justice, these are individuals who are legal conservatives who understand the proper role of the court, have a lot of great contacts within the conservative legal community and I think will serve the President very well as a resource for identifying future nominees,” Leo said.

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Todd Blanche's career gamble pays off

Two years ago, Deputy Attorney General Todd Blanche made a gamble.

A registered New York Democrat, Blanche gave up his cushy partnership at Cadwalader, Wickersham & Taft, leaving the world of Big Law to take on a new client: President Trump.

Fast forward two years, and Blanche holds all the aces.

He is now a registered Republican in Florida and attended the Republican National Convention. And after winning Senate confirmation in a party-line 52-46 vote last week, he’s now the Justice Department’s No. 2 official.

Blanche’s new role turns the tables after he felt slighted by both his law firm for refusing to associate with Trump and the broader criminal defense bar and TV legal punditry for their public attacks.

Reflecting during an interview last year with his friend and defense attorney David Oscar Markus, Blanche invoked Jeffrey Epstein and Hunter Biden.

“They can have Big Law represent them, and the Big Law lawyers get awards. They get to go to galas, they get to speak. They're posting on the LinkedIn how amazing they are,” Blanche said.

“But then if you're representing somebody like the former president of the United States in a white-collar case, then I have to leave my law firm,” he lamented.

Already, Blanche and his right-hand man, Principal Deputy Attorney General Emil Bove, are getting the last laugh. The duo is moving to dismantle of one of the highest-profile prosecutions brought by their former office of the U.S. Attorney’s Office for the Southern District of New York.

Blanche and Bove were the sole signatories on the government’s latest brief Friday asking a federal judge to toss New York City Mayor Eric Adams’ (D) criminal charges. Their filing detailed previously unreported text messages among federal prosecutors, warning that “any additional inquiry will not reflect well on SDNY.”

Judge puts foot down on OPM head's testimony

A battle is brewing over a judge’s order that Charles Ezell, the acting Office of Personnel Management (OPM) head, fly to San Francisco to testify at a Thursday hearing.

Ezell played a central role in the OPM instruction that federal agencies mass fire employees in their probationary period. A coalition of government unions has sought to cross-examine Ezell after he submitted a sworn declaration in their lawsuit.

On Monday, the Justice Department announced it does not wish to produce Ezell or 12 other government witnesses for Thursday’s hearing. In exchange for dropping their testimony, the government said it would agree to indefinitely extend a block on the OMB directive.

U.S. District Judge William Alsup, a Clinton-appointed judge who oversees the case, quickly rejected the proposed exchange, noting that the government previously embraced the idea of Ezell testifying or being deposed.

“If Ezell does not appear in violation of that order, then the Court will have to decide the sanction, including whether or not to strike or limit his sworn declaration,” Alsup wrote, though adding that the other government employees need not show up for the March 13 hearing as he weighs whether their testimony is necessary.

The unions have raised concern that the Trump administration is preparing to ignore the judge’s order. At a hearing last week, Justice Department attorney Kelsey Helland pushed back on that notion.

“We are not contemplating simply ignoring your honor’s ruling or not complying with it. We will either comply or we will seek relief from it in advance of the hearing. I want to be very clear about that,” Helland said.

The Justice Department has not yet sought to appeal the judge’s order.

The limits of Trump's Jan. 6 pardons

Jan. 6 rioters granted sweeping pardons by President Trump are pushing the limits of his clemency in courts across the country.

In the weeks since Trump wiped clean the slates of nearly all 1,500+ defendants charged over the Jan. 6, 2021, Capitol attack, several rioters facing other criminal counts have sought to convince judges that the broad pardons encompass those alleged actions as well.

Trump's Justice Department initially opposed many efforts to drop non-Jan. 6 charges. But in some cases, they’ve changed their tune.

Prosecutors once said that the firearm convictions of Daniel Wilson, a Kentucky defendant, were not covered by the language of Trump’s pardon. In later court filings, they sought dismissal of those charges after having received “further clarity on the intent of the Presidential Pardon.”

Jan. 6 defendant Jeremy Brown was separately convicted of weapons charges after federal law enforcement found stolen grenades and classified information in his home while investigating his role in the Capitol attack. Prosecutors similarly said that after “consultation with Department of Justice leadership,” they determined that conviction should also be covered by Trump’s pardon.

But the rule’s not hard and fast for all.

The Justice Department opposed the dismissal of charges against Edward Kelley, a Tennessee rioter who was later convicted of conspiring to kill the federal agents who investigated him.

U.S. District Judge Thomas Varlan, an appointee of the younger former President Bush, on Monday agreed, declining to toss that conviction, but pointed out that DOJ’s “change in position” should signal to courts that they must interpret the pardons themselves, instead of relying solely on the government’s representations.

In addition to Kelley, the Justice Department has so far declined to drop unrelated charges for at least two other rioters: David Daniel, who faces child pornography charges, and Taylor Taranto, accused of targeting former President Obama’s Washington home with two firearms, hundreds of rounds of ammunition and a machete in tow.

Judiciary won't give up on more judgeships

The federal judiciary isn’t giving up on its ask that Congress add more judgeships to address growing caseloads.

Last year, it seemed their yearslong wish was about to be granted as the JUDGES Act garnered broad support from both parties.

And then, the election. After Trump’s political victory, then-President Biden vetoed the bill, which would’ve gradually added new federal judgeships through 2035.

The federal judiciary’s policymaking arm, the Judicial Conference, began a new push at its biannual meeting Tuesday by asking Congress to approve two new judgeships in the courts of appeals and 69 judgeships in district courts.

U.S. Circuit Judge Jeffrey Sutton, who chairs the conference’s executive committee, noted caseloads have increased 37 percent over the past three decades, and the average case now takes longer to resolve.

“So that's a problem. Justice delayed is justice denied,” Sutton told reporters.

Other notable moments from the briefing:

After the Trump-era General Services Administration (GSA) included several courthouses on a list of buildings it may seek to sell, Sutton said the conference has had communications to make sure “the work GSA is doing is coordinated with the judiciary.”
Sutton declined to answer whether the Trump administration can sell federal courthouses without the judiciary’s permission, saying he’s had “no reason to even consider that question.”
U.S. Circuit Judge Richard Sullivan, who chairs the Judicial Conference’s security committee, said threats to judges “continues to be a problem” and it remains “a top priority,” but he didn’t have specific data on how many threats have been investigated.
Sullivan also cautioned Republican lawmakers who have vowed to impeach judges who’ve ruled against Trump, saying “impeachment shouldn't be a short circuiting” of the appeals process.

In or Out: The Order List

At its recent conference, the Supreme Court took up two new cases. Regular readers of The Gavel will be familiar, as both were highlighted in “Cert Watch” in previous editions.

In: Conversion therapy ban challenge

In a major case for its next term, the Supreme Court agreed to hear a First Amendment challenge to conversion therapy bans for LGBTQ+ minors.

The justices said they would hear a challenge to Colorado's ban brought by Kaley Chiles, a licensed counselor and practicing Christian. The court’s decision in the case, Chiles v. Salazar, stands to impact similar laws in more than 20 states.

Chiles is represented by Alliance Defending Freedom (ADF), a conservative Christian legal powerhouse that has notched many significant high court wins in recent years. The group has a history of taking lawsuits against Colorado’s LGBTQ+ protections to the Supreme Court, including on behalf of a cake baker and a wedding website designer.

Separately, in Berk v. Choy, the court will examine the scope of state laws that, for certain lawsuits, require plaintiffs to attach an expert affidavit confirming the suit has reasonable grounds. The justices will decide whether such laws apply to lawsuits filed in federal court, not just state court.

Out: Firing the Christian fire chief

The court declined to take up an appeal from Ronald Hittle, the former Stockton, Calif., fire chief who claimed his firing amounted to religious discrimination.

The city says Hittle showed favoritism toward Christian employees and improperly selected a religious program after the city ordered him to attend leadership training. Lower courts ruled against Hittle’s challenge.

The case gave the justices an opportunity to revisit the McDonnell-Douglas framework, a burden-shifting test used to prove employment discrimination cases that dates back 50 years to the Supreme Court’s decision in McDonnell Douglas Corp. v. Green.

Justice Clarence Thomas, joined by fellow conservative Justice Neil Gorsuch, voted to take up the case, saying the framework was distorting the lower courts’ analysis and that Hittle “more than likely” had shown enough evidence to move ahead in his lawsuit.

“I am not aware of many precedents that have caused more confusion than this one,” Thomas wrote.

Looking ahead

Today:

A federal judge in New York will consider a habeas petition filed by Mahmoud Khalil, who led pro-Palestinian demonstrations at Columbia University and was arrested by immigration authorities.

A federal judge in Chicago will hold a status conference in a challenge brought by Chicago Women in Trades to three executive orders Trump signed on his first day in office.

A Washington, D.C. federal judge will hold a preliminary injunction hearing after transgender members of the military challenging Trump’s apparent ban filed a renewed application for relief.

Another federal judge in D.C. will hold a temporary restraining order hearing in a lawsuit Catholic Charities Forth Worth brought against the Department of Health and Human Services for not paying millions owed under an existing grant for refugee resettlement efforts.

Another temporary restraining order hearing will be held before a D.C. federal judge in Climate United Fund’s lawsuit over its Environmental Protection Agency grant funding.

Thursday:

A federal judge in Baltimore will hold a hearing over injunctive relief in a challenge by three teachers associations to the Education Department’s freeze of several programs.

An evidentiary hearing is set to be held before a federal judge in San Francisco, but the Justice Department is opposed to producing the key witness: Ezell, acting director of the Office of Personnel Management.

Friday:

A federal judge in D.C. will hold hearings for injunctive relief and efforts to stay removal of noncitizen detainees in cases involving custody at Guantanamo Bay.

A Maryland federal judge will hold a hearing for injunctive relief in a coalition of government unions’ challenge to the Department of Government Efficiency (DOGE)’s access to the Social Security Administration.

Monday:

A preliminary injunction hearing is set to be held by a federal judge in Virginia in IRS probationary employee Rebeccah Thornock’s challenge to her termination. She’s representing herself in the lawsuit.

A federal judge in Maryland will hold a preliminary injunction hearing in a challenge by six individuals and unions to DOGE’s takeover efforts and access to personal identifying information.

A D.C. federal judge will hold a preliminary injunction hearing in a coalition of pro-immigration groups’ lawsuit challenging Trump’s executive order directing a review of all grants supporting undocumented migrants and to pause those grants during the review.

What we’re reading

The New York Times’ Adam Liptak: Aftershocks of Supreme Court’s Immunity Ruling Echo in New Trump Cases

Reuters’ Nate Raymond: Trump-appointed judge quits judicial group over warning about threats

POLITICO’s Ben Schreckinger: Pleas on X, Biden dirt, and attacks on the FBI: As Trump flexes his pardon powers, defendants angle for their get-out-of-jail free card

Vanity Fair’s Michael Calderone: “Harassed, Bullied, Intimidated”: Behind the Right’s Legal Crusade Against the Press

Los Angeles Times’ James Queally, Hannah Fry and Richard Winton: Menendez brothers’ bid for freedom hits roadblock: D.A. Hochman opposes resentencing

We’ll be back next Wednesday with additional reporting and insights. In the meantime, keep up with our coverage here.

Questions? Tips? Love letters, hate mail, pet pics?

Email us here: elee@thehill.com and zschonfeld@thehill.com.

Securely reach us on Signal here: @elee.03 and @zachschonfeld.48.

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