The following remarks on stocking the federal courts with judicial candidates chosen by the Religious Right were delivered at the Council for National Policy meeting held in February, 2020 at the Ritz Carlton Hotel in Dana Point, California. The speaker is Kelly Shackelford, who at the time was President and Chief Executive Officer of the First Liberty Institute (a non-profit that litigates and lobbies on behalf of religious causes based in Plano, Texas), vice president of the Council for National Policy, and chairman of CNP Action.
My job is to update you very quickly on the judicial happenings and what’s really going on in a little more depth. About three and a half years ago there were a number of people in this room that were with me in New York to meet this new candidate, this Trump guy, it was like a thousand evangelical and Christian leaders, and I was asked to ask him the questions about judges. I didn’t just ask about Supreme Court but all the hundreds of lower court judges, and he made a promise to us, he said I’m going to appoint very strong conservative judges and I’m going to rely on groups like Federal Society, and Heritage, and groups like, you know, First Liberty on the religious liberty issues.
And so how has he done. This is what I’m here to talk about. Well, I’m gonna tell ya, yeah you know, some people know, but I’m gonna show you a little more detail. I mean some of us opened a whole operation on judicial nominations and vetting, we poured millions of dollars into this to make sure the president has good information, he picks the best judges, and that’s what’s happening.
Look at the first two years, you see the 85, that’s 85 (points to a chart of new federal judicial appointees), these are appointed for life, OK, and these are not like in the past – like, hey, I helped you get elected president and my brother is an attorney, so maybe you want to consider him. That’s not how it’s working, it’s people with strong judicial philosophies, people with the highest credentials we’ve ever seen, 85 in the first two years. But I want to show you what’s happening in the second two years. 85 in the first two years, we plan to be at 250 by the end of this year.
And it’s not just the numbers, it’s the quality of these people, I wish I could explain to you, talk through each of these people. I mean for one of the people for instance he picked, a guy who is one of the most conservative, brilliant attorneys I’ve ever met, he worked for me, he would rather die than ever turn from the Bible or the constitution, and at age 38 the president appointed him to be a federal judge for the rest of his life. OK, start multiplying that many times over.
Let’s talk about the Federal Court of Appeals, there are about 179 appellate judges, this is where all the cases in, there’s only 75 cases a year that make the Supreme Court, all the rest die at the Court of Appeals. Who are these people? Well, Obama in eight years confirmed 58, in eight years. In the first three years, Trump’s already confirmed 50, in three years, okay, and that is a huge, we’re talking about a fourth of all the appellate courts where all these things end. Who was number 50, what kind of person? Lawrence VanDyke, Lawrence VanDyke number one in his class from Harvard Law School, solicitor general the state of Nevada. Lawrence is so conservative that I’m liberal compared to Lawrence VanDyke. He was just confirmed at age 46 for the rest of his life to the ninth circuit. That is change, okay, and Lawrence is just the beginning, there’s already been another one since Lawrence, there’s now 51. Who was 51? 51 was 38 years old, for the rest of their lives on the Federal Court of Appeals. So what is happening is incredible.
I just want to show you, just the Federal Court of Appeals, when we started the average age of the liberal appointed judges, or the Democrat appointed judges, on the Federal Court of Appeals was 61. I think we’ve got a chart, yeah, okay. The average age at that time, three years ago when Trump took office, of Republican, or more conservative appointed judges, was 71. Now, let’s go three years later, three years later the average age of the Democrat went from 61 to 65. Now look at where the Republican went in those three years (chart shows average age of Republican judges is now 58). That is a switch of the future, you can see the future now of what’s beginning to happen, instead of like this (points to chart), it’s now flipped, and we’re literally changing the future of the country, and the judges we’re gonna have for our grandkids. And so when we go into the elections which we’re going to talk about in a little bit, this is a long term issue of who gets elected, you know, who is in the Senate confirming these judges, who is the president, you because that’s either going to stop all this, or continue this in a way that is incredibly dramatic for the future.
But I wanted to help connect for you a little bit was what this means, okay, we’ve got these judges changing, and what that’s happening is that’s changing all of our fundamental principles back to the founding principles. An example I give you is just the area I work in is religious freedom. There are two religion clauses, an establishment clause and a free exercise clause. There is a horrible case under both of those that has been around, maybe one for 50 years, one 30 years, that has caused incredible damage to religious freedom, back in the 60s or 70s, the liberal Warren court. And if you had asked me four years ago can you get rid of those cases? I’d say not in my lifetime, we can chip away at it, maybe get some progress, but no.
I am now in the process of watching both of those things maybe being blown up, and really I’m watching history change. What do I mean. Let’s take the Coach Kennedy case, I think a lot of people, I think I’ve got a picture, I think a lot of people know Coach Kennedy, the coach who was fired for going to a knee after the football game. Unfortunately for Coach Kennedy, he lives in the 9th Circuit. And by the way, we flipped four Circuit Court of Appeals so far with the judges, okay, and at the 9th Circuit we are two seats from flipping for it to be totally controlled by conservatives. This close. But we’re not there yet.
So Coach Kennedy got a 9th Circuit opinion that said coaches are not allowed to pray in public if anyone can see them. That was the ruling. We go to the Supreme Court, and what we didn’t want from the Supreme Court was cert denied, which, they get 9000 cases a year, they only take 75, you mostly get cert denied meaning your case is over. Well, we got cert denied and we went Oh no, this is horrible, and then somebody said wait, there’s a statement attached to the cert denial which almost never happens. It was the four conservative judges including the two new ones, Kavanaugh and Gorsuch, and they said this is only cert denial for now, we want you to go back down, there’s some facts we want developed. And then they added this thing at the end, they said by the way we noticed that the first claim to reach us in this case was a free speech claim, not a free exercise claim, maybe that’s because of the Smith decision which has caused so much damage to religious freedom over the past 30 years. But we haven’t been asked to review that decision, yet. I mean the court, they’re basically ready to blow up this horrible case that has strangled religious freedom in this case for decades. I mean, incredible, right?
What about the establishment clause, the establishment clause says Congress shall make no law respecting the establishment of religion. What does that mean? I think most of us know what it means – we don’t want there to be a national established church, that then we’re forced to support in some way that robs us of our religious freedom. But 50 years ago, liberals in the Warren Court said no, no it means so much more than that, it means separation of church and state, it means offended observer status, it means – what’s offended observer status, it means if you walk through a community and you see a religious symbol and you are offended, you can now bring lawsuits. You can’t bring lawsuits because you’re offended in any area of the law except here. So our whole lifetime what have we seen, nativity scenes under attack, ten commandments under attack, prayer in public under attack, all these religious….do you think the founders thought there was a problem with any of those things? Of course not. But they were perverting the establishment clause, the case was called Lemon, it was aptly named, it was a lemon, okay.
So we have this case, I think many of you saw this, the Bladensburg cross, I’ve got a picture I think outside the Supreme Court, you see the cross, that memorial was put up a hundred years ago by mothers who lost their sons in World War I right outside of DC in Prince George’s County, Maryland, to honor the 49 young men who died in World War I.
A lawsuit was filed by the American Humanist saying you have to tear this down because this has a cross. And at the Court of Appeals one of the Obama judges, the federal judge we had, literally said why don’t we just cut the arms of the cross off ’cause that way nobody will be offended and we won’t have to tear it down. So we got a ruling, the two Obama appointees ruled unconstitutional, the Clinton appointee went with us, and they said after 100 years you gotta tear this memorial down.
Well, we went to the Supreme Court, and we could’ve gone for the bunt single, hey, let’s protect all the memorials, and try to win, but we thought look because of who’s now on the Supreme Court, let’s get rid of Lemon, it’s caused all this damage for 50 years, let’s see, let’s go for the grand slam. And so that’s what we argued for. Well, the first person to ask a question was Justice Gorsuch, he said you know, I kind of feel like Lemon is a dog’s breakfast and it’s lived its day. I said I think Gorsuch is with us (!). And then Kavanaugh said something, and the Chief said something, and we thought we might have 5 votes. The decision was 7-2 protecting this cross and this memorial, but more importantly it was 5-4 saying we’re not following Lemon, it’s no good. And I just want you to understand for 50 years we’ve gone in a hostility to religion by the government approach, that is now up blown up and we are now going a whole different direction. We still have to build this other side out, but I am watching history change on its axis. Every American alive in my opinion is about to have more religious freedom than they’ve ever had in their lifetime. And it’s because of what’s happening with the judges, so this so important, I could go through other issues, the 5th amendment, property rights, I can show you the same thing, the best thing way I can, when I end here, the best thing I want to tell you is, it’s kind of like the continental divide, and the rain was raining over here, and it’s just moved and it’s now raining over here. It doesn’t look like a big move, but this water is going to a totally different ocean, it’s going in a totally different direction, we’re watching the foundation shift and we’re going back to our founding principles. And if we want to keep that, the elections are going to be really, really important.
So, it’s now my turn to invite up all of our candidates, we have a time now where the candidates who are here get to spend 30 seconds to introduce themselves, telling you how to support them, so you can see some people you can really get behind.
This transcript was developed from a video of these remarks obtained by Documented, an investigative watchdog and journalism project committed to holding the powerful interests that undermine our democracy accountable.