WARREN SMITH, HOST: I’m Warren Smith and today you’ll be listening in on conversations I had at recent gatherings of conservative activists.
Today we feature North Carolina, Lieutenant Governor Dan Forest, The Federalist Society’s Leonard Leo, and a man who helped take the Bladensburg Cross case all the way to the U.S. Supreme Court, First Liberty’s Kelly Shackelford.
Leonard Leo graduated from Cornell Law School in 1989 and after clerking for a federal judge who went to work for the Federalist Society where he has remained ever since, rising to the role of executive vice president. The Federalist Society was not that well-known outside of conservative circles until President Donald Trump tapped it and Leonard Leo to help him select federal judges. During the 2016 presidential election, when Trump was trying to gain credibility with conservatives, he said he would select any future judges and justices from a list prepared by Leo and The Federalist Society. That list and Leonard Leo himself became instant media sensations causing some people to call Leonard Leo one of the most powerful men not in government. But Leonard Leo had been working toward this position for 30 years. He had organized efforts in support of the John Roberts and Samuel Alito U.S. Supreme Court confirmations. Leonard Leo recently spoke to a group called the Council for National Policy in Orlando, Florida. These meetings are off the record, but Leo agreed to talk with me just after he came off the stage to talk about what he had said to the group and to talk about his work promoting conservative, originalist judges and justices.
Leonard Leo, first of all, thank you so much for spending a few minutes with me. I think, as a Bob McEwen said here a few moments ago that probably nobody has been given more responsibility for picking judicial appointees, judges than you have in recent memory.
LEONARD LEO, GUEST: Well, as I told Bob McEwen, it’s the president who signs the commission, and it’s a vast movement of great warriors who have defended these nominees. So, I’m just the hired help.
SMITH: Well, I appreciate that modesty and also recognize at least to a certain extent that it is true, but you’ve earned that position of trust over a long period of time. And I wanted to back up to some comments that I’ve heard you say here and elsewhere that — You served early in your career, for example, on the International Religious Liberty Commission. You talked about these issues that are being adjudicated in the judiciary, on the courts as being important because they speak to human dignity. They speak to issues like the rule of law and equal protection under the law. This is not just a game for you. These activities that you’re engaged in seem to me to come from a place of first principles for you.
LEO: Absolutely. You know, I probably visited about 48 countries when I was on the U.S. Commission on International Religious Freedom. And one of the things noticed was that the countries that had the worst conditions for religious freedom, were the ones that didn’t really have structural constitutional protections, limits on government power. Those were the countries where religious freedom was most at risk. And so, you know, I’ve seen this and so looking back at the U.S. my feeling is, look, if you want to protect freedom of religion, you want to have conscience rights, you want to have economic freedom and opportunity, you want to have dignity for all people, people having the ability to choose who they are and what they’re gonna do in their lives, you have to enforce those limitations on government power contained in the Constitution. And if you don’t, nothing’s ever going to be really sacred.
SMITH: Well, you also said, though, that the Constitution was just, I believe your words were a paper barrier or something like that. That if you didn’t have the right people in the courts, that if they didn’t have an understanding that these laws really mattered in the lives of people, that the Constitution alone was not adequate.
LEO: Yeah. This is what the framers called it. They called the Bill of Rights and the Constitution of “parchment barrier,” unless you had enforceable limitations on the power of the state, on the power of government. And that was their experience in Europe, right? And that was the experience throughout human history that unless you had, you know, real enforceable limitations on the power of the state or on the king or on the government, the rights that they accorded you were really meaningless because they could be taken away whenever somebody wanted.
SMITH: One of the things that you also told the group today was that there were four giants on whose shoulders you and many of us in the conservative movement stand. Would you briefly tell me who those four giants who were? I believe the first one you mentioned was a man who’s actually in the room here with us today, former attorney general Edwin Meese.
LEO: Yeah, the four giants on whom we rest, at least for the rule of law, are former Attorney General Ed Meese, Judge Robert Bork, Justice Antonin Scalia and Justice Clarence Thomas. They are the ones that really widened and extended that path for a limited constitutional government in our country and in a variety of important ways.
SMITH: One of the reasons that Ed Meese was so important, has been so important for the last 40 plus years in the conservative movement and in sort of the judicial history of this country generally is that he, I don’t know if he originated this phrase, but he certainly popularized the phrase that personnel is policy when he was in the Reagan administration, and that seems to be exactly what is guiding you today. This idea that I’m getting the right judges in the right courts really does matter.
LEO: Judicial selection is the game. And Ed Meese understood that more than anybody else. He realized that you had to have a highly regimented, disciplined, philosophically, and intellectually grounded judicial selection process. One that understood that judicial philosophy mattered. It wasn’t just about whether you had a good look and resume, it mattered whether you were committed to certain principles, whether you really embrace the Constitution, whether you understood the proper judicial role, and also whether you had courage, whether you were fearless.
One of the things that I loved was when Brett Kavanaugh was sworn in at the White House. Who did the president put in the front row right next to Don McGahn. So Don McGahn, the White House counsel, very key to this process, another one of these giants who really has helped move judicial selection. And right next to him was Ed Meese, the man who started it all, the architect. There was tremendous symbolism there about how our movement started and how it got to where it is today.
SMITH: Well, I think given what you just said, people understand why Ed Meese will be on your four horsemen, so to speak. And Clarence Thomas, of course, a member of the court and Antonin Scalia, recently passed, but a member of the court. Why is Robert Bork such a key figure?
LEO: Well, because Robert Bork was in many ways one of the earliest, if not the earliest spokesman for this concept that it’s the duty of a court to interpret the Constitution the way the framers meant it to be, the way the framers intended it.
And that’s really how the movement got kicked off. And people don’t realize this, but, you know, Judge Robert Bork ignited a generation of young law students to embrace these principles and to fight for them. And, you know, the confirmation process of course, was brutal. And, of course, he wasn’t successful. But that moment also, I think in a lot of ways, mobilized and incentivized our movement to be more focused on making sure that his judicial philosophy was promoted and held sway. So in lots of different ways he’s had impact. And I don’t think that the movement we have today would exist were it not for those early efforts and, frankly, early sacrifices that Robert Bork made.
SMITH: You said, though, that there are a couple of barriers that exist now, barriers to moving forward in a even greater success on the bench for conservative and originalist ideas. One of those is the 30 hour rule. And I think a lot of our listeners might kind of be rolling their eyes or, you know, their eyes in fact glazing over at such a procedural matter being touted as an important matter. But can you say why?
LEO: I don’t know how in the world any human being or a group of human beings could spend 30 hours talking about a single nominee to a trial court in the federal system. It is asinine. At most, you need two to four hours. At most. And so what we’re doing here isn’t scrutinizing nominees to make sure they’re qualified for the bench. What we’re doing here when we have 30 hours of debate, is allowing people who don’t like this president to engage in an act of resistance and there is no reason why we have to permit that.
Have a fair debate and let senators vote for or against the nominee. I’m perfectly fine if a Republican or Democrat senator wants to vote against a nominee. Have the vote. Go on record as opposing someone. Give your speech. But 30 hours is just Sturm und Drang. It’s not meant to be a meaningful conversation about the qualifications for service on the federal bench.
SMITH: Well, I understand that. I think if I were going to play devil’s advocate on that position though, Leonard, I might say, yeah, but you can’t take the politics out of politics and it is the role of the Senate to provide that kind of oversight and consent. Your response to that would be enough is enough?
LEO: Yeah. You know, I’m all for having, you know, Senate advice and consent. 30 hours for a Supreme Court nominee is perfectly acceptable. Eight hours or so for a court of appeals nominee because it’s an important job. You know, really important job is perfectly acceptable. And if you want to do two or four hours or so for a district court nominee, that’s fine. I mean, I’m all for having the debate, having the advice and consent, but that’s not what they’re using the 30 hours for. They’re not using the 30 hours for advice and consent. They’re using it for search and destroy. And that’s not the constitutional role of the Senate.
SMITH: You’ve said that if things proceed along the current pace that as many as one third of the judiciary might have Trump’s stamp on it by the end of his first term, but there are still a whole lot of vacancies. What’s it going to take from here other than repealing the 30 hour the law or amending the 30 hour rule? What’s it going to take other than that to sort of advance the ball to move this process forward?
LEO: Well, that’s probably the most important thing. I mean, if you can get the 30 hour rule modified and really reduced substantially the amount of time for debate — have reasonable debate, but reduce it to what you really need, then I think you could get many of those district court judges appointed by the end of the year. I think just doing that would be sufficient.
SMITH: Leonard Leo, thank you so much for your time. Appreciate it.
LEO: Thank you Warren.
SMITH: Next, Kelly Shackelford. Kelly Shackelford founded the First Liberty Institute in 1997 to defend Christian groups and individuals engaged in religious liberty or free speech lawsuits. The group’s profile has grown significantly in recent years in part because of two cases that made their way to the U.S. Supreme Court.
One involved coached Joe Kennedy of Bremerton, Washington who was fired for engaging in public prayer. The other case involved eight memorial cross that an anti-Christian group wanted removed from public land. The Coach Kennedy case will not be heard by the Supreme Court this term, but the so-called Bladensburg Cross case was heard two weeks ago.
We talk about both cases in this conversation that I had with Kelly Shackelford just before the Bladensburg Cross case was argued before the U.S. Supreme Court on February 27.
Kelly Shackelford, welcome back to the program because you and I have talked to a number of times in the past and I want to talk about two particular cases. One is the Bladensburg World War One veterans memorial in the shape of a cross, which is a case that has important implications for the establishment clause of the constitution. And it’s coming up to the Supreme Court real soon, right?
KELLY SHACKELFORD, GUEST: It is. February 27th is the argument before the Supreme Court. And this is a memorial that was put up almost a hundred years ago by mothers who lost their sons in World War One as well as our client, The American Legion. And it’s of course been there. And they ended up building a highway around it, but they didn’t want to disturb this memorial, certainly. And then all of a sudden a lawsuit was brought by the American Humanist Association and we won at the district court. But at the court of appeals, we actually had an interesting panel. We had two Obama-appointed judges in one Clinton-appointed judge and one of the Obama judges actually asked during the oral argument, what if we just cut the arms off the cross? Won’t that take care of any problems? So we knew our panel wasn’t exactly the one we were hoping for, but we ended up with a two-to-one split decision.
The Clinton judge went with us and said, “Of course we don’t tear down veterans’ memorials because they’re in the shape of a cross. I mean that’s all over the country.” But the two Obama appointed judges said it was unconstitutional and it has to come down. And that’s not only important for that memorial, which it is. The 49 men and their families that were recognized there, it’d be like tearing down their tombstone. But Arlington National Cemetery is close by and if this is not overturned, they have to go into Arlington and tear down the large freestanding crosses there.
SMITH: Well not only that, but would they have to tear down all the crosses and stars of David that are on thousands and thousands of graves there as well or would that be exempt?
SHACKELFORD: They would argue that the graves are different because people get to choose. But what a lot of people don’t realize there’s a lot of things that people didn’t choose. There’s a the Cross of Sacrifice given us by Canada. That’s a 24 foot tall cross. There’s the Argon Cross. There’s the Tomb of the Unknown Soldier that says “known but to God.” I mean, the sandblasting and the bulldozing that would occur across our country, including in Arlington National Cemetery, I think would be breathtaking. And so for that reason, I think everybody in the country is watching this case. But it’s actually much deeper than that even because what you ask yourself is why is this even being considered? Because we did a poll. Barna did a poll for us and the country said, 84% said leave it alone. I mean, everybody realizes this is crazy.
We got here because the court has been creating these tests to try to interpret the establishment clause. And they’ve become somewhat a joke. I mean, they’re like, well, can you have the Nativity scene? Well, how far is Rudolph from the Nativity scene? Let’s get out a tape measure. And it’s stuff that the founders would look at and go, what are you doing? And it’s because the establishment clause was meant to stop the government from establishing a national church and coercing people with regard to their religion. And instead of that, what it’s now being looked at as is well, is there a Ten Commandments? Is there a cross in public? Those are things that founders would never have any problem with. So what we’ve asked them to do in this case, let’s get rid of all this stuff that’s causing this confusion and these problems. Let’s go back to the Constitution. The real test should be coercion. If the government is not coercing anyone with regard to their religion, there’s no violation.
And think of what that would mean for our country if they did do that. Right now when you see religion and public, people tense up. They wonder if there’s a problem. They wonder if that’s okay. That would all be gone because people would go, there’s nothing wrong with religion in public as long as there’s no government coercion.
SMITH: Kelly, you mentioned something a few minutes ago that, you know, the Clinton judge and the Obama judge and all that kind of thing, which suggest to me that who sits on the court also matters a great deal. And I want to come back to that idea in a minute, but first I want to ask you about another one of your clients, another case that you’re working on and that’s with Coach Kennedy. Can you talk to me about that?
SHACKELFORD: Coach Kennedy is a great guy, a marine for 20 years got out and before he started coaching, he had saw this movie Facing the Giants about Christians and coaching. And it just convicted him and he made a pledge. He said, God, you know, after every game when the game’s over and we go to the center of the field to shake his other team’s hand, the first thing I’m going to do is I’m going to go to a knee and give you thanks for the privilege of coaching these young men. So that’s what he did for seven years. All of a sudden, at the end of seven years, somebody went up to the the school and said, that’s really neat what your coach to us. And they said, what do you mean? And the next thing you knew there was an investigation.
And then he got a letter from the school saying, if you go to a knee again, you’re going to be fired. Well, he made a pledge. So he went to a knee by himself, said a silent 15 to 20 second prayer. He was fired. Went all the way to the ninth circuit. The ninth circuit ruled in, really, a breathtaking ruling, they said, coaches are not allowed to pray in public if anyone can see them. That was their ruling. And so this went to the Supreme Court and everybody was really watching what was going to happen because this would obviously affect people all over the country.
Well the Supreme Court is something very unusual. The way it works at the Supreme Court is you ask them to take the case but they don’t have to. You’re asking them to grant certiorari. And you know, 99% of the cases they say “denied” cause I just can’t take everything. And usually that’s all they have the ability to do. They get about 8,000 requests a year, 7,920 of them, they say cert denied and no explanation. Well they said cert denied in this case, but then they did something I’ve almost never seen in the history of the court. They issued a statement — the four conservative justices — attached to it and they said this is just cert denied for now. We want you to go back down, prove this one other fact — which if we prove we win. And then they said we found the ninth circuit opinion below very troubling and we can’t believe that they meant what they said. Because that would mean if a coach was like praying at a restaurant at night, if somebody saw him, that that would be a violation. You could fire him. That’s just insane.
And so they were like, you can’t mean what you said. But then the real shocker of all shockers is they did something at the end. They said, we noticed that this was the free speech claim. They said maybe this wasn’t a free exercise claim because of the Smith decision, which has so damaged the free exercise of religion claims, which is an incredible admission because all of us in this arena know that that’s what the Smith decision did. They said, but we haven’t been asked to revisit that yet. So that was an incredible invitation. So I think everybody now across the country that is in this industry of fighting for religious freedom and even law professors, the talk has been exploding because people realize we might be about to really change 30 years of bad law and religious freedom and get rid of the Smith decision.
And meanwhile we have this establishment clause case where we might be able to get rid of the Lemon Test and a lot of the bad cases that had been leading us to confusion and chaos and sort of hostility to religion on that clause. So I’ve been doing this for 30 years and I have never been more excited about what I see beginning to happen that I think will affect the next 30, 40, 50 years of our country in a positive way for religious freedom.
Just be in prayer because these cases are really important. But the signals we’re getting from the Supreme Court are really good signals.
SMITH: Well, not only are you getting these signals from the Supreme Court, but there’s also been some victories lately as well. The Hobby Lobby decision, the Jack Phillips decision, some other decisions. And now, and we alluded to this early on and I’d like for you to say more about it, the composition of the courts seems to be changing under Trump. What’s your perspective on that?
SHACKELFORD: That’s why this is happening. I mean, the four justices who signed the statement, you know, connected to the Coach Kennedy case, I mean, that included Kavanaugh. I’ve known Brett Kavanaugh for 20 years. Brett Kavanaugh as a young attorney donated time with me on a religious liberty case. This is a guy who understands the Constitution and religious freedom and is committed to it. So it doesn’t surprise me at all. That is why we have these opportunities I just talked about. Yes, we’ve had some victories in the last 20 years. I mean, I’ve been fighting for these victories, but I’ve never seen the ability to change these huge problems that now we’re about to see. Why is that? Because really for the first time since the 1920s we now have five justices whose committed position is to follow the written words of the Constitution, not what they feel like, not a living, breathing Constitution where they kind of can insert their own thoughts. We’ve got five justice, as you say, their job is is originalism and to go back to what the founders meant. And that’s why we can get back to what the religion clause, what does free exercise mean? What were the founders doing? They were trying to protect the fullest and most vibrant religious freedom we could have. And so these tests and things that make the government almost hostile to religion have to go. And we’re actually on the cusp of maybe seeing that happen. So I am really encouraged by what I’m seeing. I think the justices do want to follow the Constitution. And I think the justices that we have now give us opportunities we haven’t had in our lifetime to actually move back to a really vibrant free exercise clause and a protection for freedom of religion and really a stopping of the abuse of the establishment clause where they almost treat it as a weapon where they’re looking for a veteran’s memorial that has a cross or a Star of David to tear it down.
Again, what do you really think the founders would say if you brought them back? Do you think they’d say, yeah, that’s what we were after. We wanted to strike down, you know, any sort of displays of religion in public. They would be appalled at what has happened. And the good news is we’ve had so many justices make fun of their own tests that I think they’re aware this has got to change. And the Solicitor General’s Office of the United States filed a brief in our Bladensburg case, you know, the American Legion case, and they said, First Liberty’s right. These tests are out of control. They’re not what the Constitution says. We really do need to go back to a coercion test, a proper approach under the religion clauses.
SMITH: Up next, North Carolina Lieutenant Governor Dan Forest. You might think Dan Forrest would be a natural as a politician and in some ways he is though he didn’t come to politics until a little bit later in life. That’s unusual because his mother, Sue Myrick, was after all the first female mayor of a major American city, Charlotte, North Carolina. She then went on to serve nearly 20 years in the U.S. House of Representatives. But politics was not Dan Forest’s first career choice. He became an architect and didn’t run for public office until 2012, when he was in his mid forties. However, against all odds, he was elected lieutenant governor of North Carolina in his first political race. Almost immediately, he ran into controversy though. Transgender activists had pressured the city of Charlotte to pass a law making bathrooms in the city open to both sexes. Dan Forrest led an effort at the state level to pass a law that would prevent the Charlotte Ordinance from taking effect.
That state law, HB 2 became known as the bathroom bill. In part because Dan Forest’s stand on that issue, he became the first Republican in North Carolina history to get reelected as lieutenant governor in 2016 even though the Republican governor himself lost his bid for reelection. Forest recently formed an exploratory committee aimed at a run for the governorship in 2020.
Dan Forrest, welcome back to the program. I got to interview you a couple of years ago during all the HB 2 controversy in which you stood strong on that. Now we’re here again in Charlotte, North Carolina, which is your hometown and my hometown now, talking to this conservative group here that’s meeting. What did you tell the group?
DAN FOREST, GUEST: I really don’t remember, Warren. I was just thinking about following Nikki Haley on the stage and a little nervous about doing that. So you might be able to tell me.
SMITH: Well, let me just say honestly, I know that before you had talked about, you know, that’s tough duty following Nikki Haley, which it is. You did a great job though. You did a fantastic job. Standing ovation. So I guess they must’ve enjoyed what you had to say.
FOREST: Thanks, Warren. No, really just talking about the changes that we’ve seen in America over the last 20 years. Certainly when I was growing up as a kid 40 years ago, right here in Charlotte, very, very different times and trying to, you know, just state the case that, you know, we have a job to do in this culture that politics is so far downstream of culture, how do we get engaged? What are the things that we need to do? And there’s kind of a playbook for that, right? We know what to do, especially in the Judeo-Christian world. We have a playbook about how to get engaged and trying to really just be an encourager to say it’s not enough to come to these events and listen to a speaker speak, but we need to engage the culture ourselves.
SMITH: Well, you know Dan Forest, one of the things that has impressed me about you is that you’re a politician but you bring around yourself a group of advisors that are steeped in that Christian worldview and that Judeo-Christian tradition. As a learner, as a student, as a teacher I know John Stonestreet of the Colson Center for example, is one of those guys. And you actually called out Frank Turk today who wrote a book, I Don’t Have Enough Faith To Be An Atheist, as one of the guys that you turn to whenever you’re looking for a biblical understanding. Where did that come from in you and why don’t more politicians do it?
FOREST: Well, I think it actually came from Frank Turk. Frank and I had been friends for a number of years and he was a consultant in my architecture business, not doing anything related to politics long before I got involved. And so I kind of got engaged and kind of grew up in the apologetics world through Frank. And so it became an integral part of everything that I became about in life, in Christian life and culture. But then when I got engaged in politics, it became a differentiator. So when the media comes in and sticks a camera in your face or a microphone in your face and ask you some kind of crazy question, it’s easy to flip the tables on them and ask them, oh, you know, use a Greg Kokal tactic, you know, and say, what do you mean by that?
And just some really simple tools that I’ve learned apologetically to help. But then I also, my lifelines, if you will, John Stonestreet, Frank Turk, Jeff Myers, these guys that are, you know, just mainstays in the Christian apologetics world are the guys that I call when the times get tough and we say, we have a real tough issue here. How do we engage in culture with this? Not to offend somebody, but to draw somebody in and draw them into conversation where a light bulb will go off in their head to say, you know what I really… I’ve never thought of it that way before. And that’s what these guys do. That’s what they’re professionals at.
SMITH: Well, if I’m remembering this right, and you can correct me if I’m wrong, you’re only the second Republican Lieutenant Governor in North Carolina history, the first that’s ever been reelected to that office. How do you prepare for something like that? I mean, you know, as lieutenant governor, the HB 2, the so-called bathroom bill that you can get sort of thrown to the sharks pretty quickly. And that was as the lieutenant governor, which is not historically been a super high profile position. You’re going to be on more of a national stage. How do you prepare for that?
FOREST: Well, I think, you know, one of the ways is that you have to make the left own this. We didn’t make up this bathroom fiasco. That was done by the left. You know, we’ve always known what bathrooms to go to. We know that men use men’s rooms and women use women’s rooms, and there’s a very good reason for that. It’s been upheld by the Supreme Court. They’ve said you can discriminate based on sex, you know, and the challenge comes from the left who says, well, we don’t believe that sex means sex anymore. A man and woman doesn’t matter anymore. Now we’re talking about, you know, all kinds of gender dysphorias out there. And how do you create legislation related to that? It’s a very dangerous, slippery slope that’s created by the left, not created by us. So I think you need to flip the tables. You know, you don’t always need to take the burden of proof on for yourself. That’s what we always do. The left says, how dare you do this thing and we take the bait, you know? And so we just don’t need to take the bait. We need to know how to defend ourselves and we need to be able to know how to turn the tables back on them for these crazy ideas that they come up with.
SMITH: So at the end of the day, Dan Forest, are you hopeful, not hopeful? I mean, because as you said that we do live in really complicated times and it is easy and tempting to get nostalgic and to not accept and own the fact that God put us here now for a reason. God is sovereign. And so given that sort of way of looking at the world, are you concerned? In despair? Hopeful? Somewhere in between?
FOREST: Oh, I’m always hopeful. I mean, I kinda know the end game. So, there’s always hope out there. I think that that’s the challenge with the world today. And I think that’s really the epicenter of the leftist insanity that we see in America today. It’s a bunch of hopelessness. You know, if you don’t know who God is and you don’t believe there’s anything past this life, but the craziness that we see in this world today, then we would probably all be doing similar things if we didn’t have that hope. So it’s my hope really in the future and my ultimate future in eternity that drives a lot of what I do. So, no, there’s never any hopelessness. There’s always some sadness about watching where your country has gone and how far down that slope it’s gone.
But I’m also hopeful they can bring it back. I mean, we saw some tough times in the 70s, not like culturally, like we see today. But leadership matters, you know. And Ronald Reagan’s leadership in America turned America around. Barack Obama’s leadership turned America around the other way. We can have leaders that can turn this country back around again, culturally. And I think that’s what I pray for, you know. I mean, it’s good to see… we saw Nikki Haley here this morning. It’s good to see a leader like Nikki Haley up on the stage representing the United States on the world stage, the way she does with boldness and with grace and with power. And so I think leadership matters and we can see some significant changes by electing the right people to office. But again, remembering as Chuck Colson said, the savior doesn’t arrive on Air Force One.