The Bipartisan Legal Institutions Empowering Activist Federal Judges
The Rodel Institute is a Symptom of a Deeper Problem in America’s Judiciary
This report originally appeared in Restoration of America News, and is reprinted with permission.
The immediate political conflict in America isn’t partisan, between Republicans and Democrats. It’s constitutional: between the Executive which is implementing policies and the Judiciary which is blocking them. The Executive, Donald Trump, is well-known; most federal judges, and their influence from Administration to Administration, are not. They form a state within a state: a little less than 1,500 people, active and senior jurists, who hold the entirety of any Executive’s agenda in their hands. As of now, by one count, 28 of them have blocked Executive orders issued since January 20. How they gained their influence—and maintain it—should concern us all.
Recently, Restoration News reported on why these judges have power. The investigation showed that the eighty-year growth of Washington, D.C. has meant a concomitant rise in administrative laws and corporate regulations, national security legislation and public interest lawsuits from nonprofits. A new elite legal class has risen off of the ensuing demand. Today, they orbit around organizations that emphasize their importance as the legal arbiters of American politics.
These organizations and their influence are the subject of this report. As beneficent and bipartisan as they seem, in reality they are political wolves in sheep’s clothing: creating the illusion of judicial objectivity through the false hue of bipartisanship. The window onto this subtle institutional play is the Rodel Institute. Rodel made the news recently for its ties to Federal District Judge James Boasberg, currently President Trump’s most influential judicial nemesis.
The Rodel Institute has dual mechanisms for promoting players like Boasberg, and reinforcing their claims to influence: Spreading its reach into unlikely places using philanthropy; and bringing in, or co-opting, originalist opponents of judicial supremacy. These originalists, Republican-appointed judges in the mold of Justices Thomas or Gorsuch, want the Courts to leave most decisions about governance to Congress and the Executive. In these ways, Rodel and like-minded organizations exercise quiet but enormous encouragement to judges to interfere in politics—encouragement that, to be addressed, has to be understood.
The Rodel Judicial Fellowship’s Deceptively Bland Bipartisanship
Boasberg’s ties to the Rodel Institute come via its sponsorship of the Rodel Judicial Fellowship, and they surfaced in a surprising way. According to the conservative website Just the News, which broke the story:
Just the News was alerted to the [Rodel Judicial Fellowship] conference and to Boasberg’s attendance by a retired Democrat-appointed judge, who was concerned the July 2024 conference’s focus on judges’ role in a democracy was too close to a political party’s theme for comfort.
Despite this concern, though, on the surface much of the Fellowship seems surprisingly bland and bipartisan. According to various judges who participated in 2022, the program is “different in kind, not just degree from other judicial conferences…”; “the weekend has wonderfully challenged me”; and “[the conference] was a very helpful and thought-provoking weekend.” None of these comments move past the generic, and some of the offerings at the conference don’t fall far short of generic, either.
One guest speaker of this variety was Kevin Charles Parker, the founder of DutchBros Inc., an Oregon-based coffee chain. He also founded a leadership institute at Whitworth University which promotes “the history of leadership theory and practice.” Before this he was a Washington state legislator, making a reputation as a compassionate conservative with bipartisan leanings; and he had short-term stints—as a “facilitator,” “adjunct faculty,” and “lecturer”— in “leadership studies” at Harvard’s Kennedy School, Gonzaga, and the University of Virginia. Parker seems to be generally if non-specifically well-liked, but what does someone with his background have to tell highly-trained judges about interpreting constitutional law?
At least two 2024 speakers did offer coherent legal philosophies, but the philosophies balanced each other out. One speaker was Cara Drinan, a professor at Catholic University and an exponent of Restorative Justice and other progressive techniques whose harms Restoration News has reported on recently. The other was Jeff King: the Vice President and C.O.O. of the Rodel Institute who comes from a conservative judicial background.
But the bland bipartisan hue is surface level, because the Fellowship’s leadership and funding are ideological. The Fellowship is run by Lizzy McCourt Noonan, a former principal at Global Strategy Group, whose client roster—from Josh Gottheimer to Kirsten Gillibrand, Ritchie Torres to Andrew Cuomo—is entirely Democratic. The conference is funded, via the Rodel Institute, by the Rockefeller Brothers Fund, the William and Flora Hewlett Foundation, the Henry Luce Foundation, and the M.J. Murdock Charitable Trust—the first three being longtime liberal-progressive donors. These players do not fund organizations by accident. So what, exactly, is the function of these ideologues funding Rodel’s strange combination of the bland and the bipartisan?
Origins of the Institute: The Aspen Model
One can explain the Rodel Judicial Fellowship’s purpose by its origins. It came out of the Rodel Institute, itself a 20 year old product of the nonprofit the Aspen Institute, which came on the map with the Aspen Ideas Festival in 2005.
The Aspen Institute has deep links by personnel to Emerson Collective, the nonprofit juggernaut of “practical progressives” founded by Laurene Powell Jobs, the widow of Steve Jobs, who also owns the majority stake in The Atlantic, Washington’s premiere magazine of the bipartisan establishment. A typical session of the Aspen Festival has twelve people, from MIT social theorists to Broadway directors to the editor-in-chief of The Atlantic, come on stage for three minutes each to “pitch” their topics for global improvement. Aspen also goes out of its way to recruit conservatives (or not quite conservatives): among them Kevin Charles Parker, the Rodel speaker from 2024; and prominent anti-Trump and anti-populist voices Bret Stephens and David Brooks.
This general model also illuminates the Rodel Institute’s founders, both tied to Aspen: Mickey Edwards, a former Republican congressman, and Bill Budinger, a philanthropist, whose successes have deep ties to the power structures of Washington.
According to his biography, Budinger gained his wealth from a manufacturing company which started in his garage but, by the 1990s when he sold it to a multinational, had business in Germany, Japan, Taiwan, France and Malaysia. During this time, Budinger also kept busy working as “a panelist on NPR’s Talk of the Nation and as a guest lecturer at several universities including MIT and Harvard” and serving on the boards of “the Aspen Institute, Third Way . . . the Brookings Institute Governance Studies . . . [and] the Democratic Leadership Council.”
These two sides of Budinger’s biography, the professional and philanthropic, share intimate connections. The Third Way, Brookings, and the Democratic Leadership Council were key advocates for the deregulation of trade and outsourcing of labor that occurred in earnest with NAFTA in the 1990s. They got their ideas, sometimes quite literally, from MIT and Harvard, ideas then spread to an “educated public” by vehicles like NPR. Budinger, in other words, positioned himself inside exactly those institutions pushing the breakdown of trade barriers that helped his business expand to foreign markets, foreign markets to which he then offloaded that business at a handsome profit. He is a globalist. This means he can have absolutely no interest in a return to non-elite economic governance proposed by the new populist Republican Party.
Edwards, who retired from Congress in the early 1990s and denounced the Republican Party in the wake of the January 6, 2021 protests at the U.S. capitol, has similar interests. He made his post-congressional career in the lobbying and nonprofit world which, as Restoration News has reported, sprang up in Washington in earnest in the mid-1990s.
Budinger and Edwards, then, know how to play the system. This knowledge is reflected in the growth of the Rodel Institute after 2005 at the hands of Budinger, Edwards, and John Kroger—a veteran of the Aspen Institute and Chuck Schumer’s Senatorial office, Bill Clinton’s 1992 presidential campaign, a former Attorney General of Oregon, and the former president of Reed College from 2012 to 2018, that institution’s identitarian-progressive heyday.
The Origins of the Rodel Judicial Fellowship…
Just as the Aspen Ideas Festival put the Aspen Institute on the map, the vehicle for the growth of the Rodel Institute was the Rodel Fellowship—a precursor to the Rodel Judicial Fellowship. The Rodel Fellowship calls itself “the nation’s premier leadership development program for elected leaders.” Each year it, “selects 24 outstanding state and local-level leaders, divided equally between the two political parties, to come together for a series of three multi-day seminars held over a two-year period.”
These “leaders” have included current Secretary of State Marco Rubio and former Vice President Kamala Harris, back when they were operating at the state level. Young and ambitious, they and others like them would almost surely have seen a Fellowship as an opportunity for advancement and credentialing. Then, having attended, the Fellowship became part of their resumes: a marker of professional camaraderie in a profession, politics, whose entire point is accountability to voters, not to fellow professionals.
Rodel took this model of bipartisan elite camaraderie and weaponized it when a non-professional politician, Donald Trump, came on the scene and began appointing originalist judges who wanted to give the executive and legislative branches of government the power they’d once enjoyed on behalf of the people. According to a statement the Rodel Institute sent Just the News:
The Rodel Judicial Fellowship began in 2022 as an effort to counter the appearance of a more fractured, more political, and less collegial judiciary and as a way for judges to grow by sharing their beliefs and experiences with each other. Fellows read and discuss…foundational [legal] texts, exploring similarities and differences between participants’ judicial philosophies.
This line seems to work on participants. Among the federal judges participating with Boasberg in 2024 were nine Democratic appointees but also three Trump appointees from the federal appellate courts: Amal Thapar, Elizabeth Branch, and Joel Carson. Of five state-level judges who participated, four are Republican.
What attracts them to the Fellowship?
…and the Conservative Judges it Draws In
For state judges, it is almost surely the opportunity to rub elbows with esteemed colleagues on the federal bench. For federal appellate judges like Joel Carson and Elizabeth Branch, relatively unknown recent Trump appointees, perhaps the chance to enhance their professional standing and gain knowledge from their colleagues. But what attracts someone like Thapar, a star in the originalist legal firmament who was in the running for a Supreme Court seat during the first Trump Administration?
One plausible reason Thapar attended is the prospect of discussing and sharpening legal ideas. Many originalists feel this way, including on the Supreme Court, where conservative justices have distinct views of originalism that sometimes lead them to different conclusions. The problem with this ideal of exchanging ideas? Liberals and establishment Conservatives don’t feel this way. James Boasberg is not an open-minded practitioner of law: as Restoration News has noted in a past report, his rulings consistently increase the power of unaccountable bureaucrats. The same holds true with Boasberg’s like-minded colleagues such as the showily bipartisan Supreme Court Justice Elena Kagan. Kagan, a deeply experienced institutional operator with ties to the Aspen Institute, always votes with her fellow Democratic appointees—unless, tellingly, she can extract a major compromise from conservatives by voting with them.
The other plausible, and problematic, reason a practitioner like Thapar might be drawn to the Rodel Judicial Fellowship is that he is worried about his fellow judges. By 2022, the year the Fellowship was founded, the originalists President Trump had appointed to the Court had received public backlash for their rulings reducing judicial power. Chuck Schumer and various progressive D.C. nonprofits encouraged this backlash.. In this context, Thapar may have seen value in a Fellowship which seemed to promise to bolster the notion of judicial impartiality—despite the fact that one of its leaders, John Kroger, came from Chuck Schumer’s office; and another, Lizzy McCourt, elected Democrats for a living. Practically speaking, Thapar’s good intentions only served to link him to Liberal judges, diminishing the chances he might criticize them, even as they continue to criticize originalists.
The Proliferation of Bipartisan Institutes…
A number of institutes like Rodel have popped up, all flying under the public’s radar, all the seeding grounds for judicial elitism.
For instance, the National Constitution Center, run by Jeffrey Rosen, a former writer for the ultra-progressive New Republic. Rosen’s brother-in-law is Neal Katyal, the former acting solicitor general for President Obama. Katyal, a Democrat, gained fame for his strong partisan political statements against the current Supreme Court, but he also plays the bipartisan angles, appearing at Federalist Society events. Katyal’s approach matches Rosen’s, who regularly stacks the National Constitution Center’s deck with Liberals or Establishment Republicans. In this way, Rosen promotes the Center’s image as a place for the free exchange of ideas while getting judges from across the ideological spectrum to buy into what the Center really stands for: a permanent legal elite.
There is also the American Bar Association (ABA), the nation’s most storied organization for legal professionals. Like Aspen and Rodel and the National Constitution Center, the ABA owes a portion of its funding to not just federal grants but also to donors including the Rockefeller Brothers Fund and the Hewlett Foundation, the same liberal-progressive nonprofits funding the Rodel Institute. Like the Rodel Institute, the ABA follows the ideas or sets of policies in vogue among these classes: see, for example, its 10 year embrace of identity politics. It also conveys these ideas and policies to lawyers and judges, whom it hosts at conferences and awards ceremonies.
Only a few days after Just the News revealed Boasberg’s membership in Rodel, two incidents hinted at the result of the influence of Rodel, the National Constitution Center, the ABA, and other like-minded groups.
…and their Effects
The first incident was that James Boasberg, already engaged in a public battle with the Trump Administration, was appointed to oversee upcoming litigation related to Trump officials’ accidental release of possibly classified information via a Signal Chat. These judicial appointments are by lottery, but what’s noteworthy is that Boasberg did not recuse himself. Nor, unlike when conservative originalist justices have come under criticism for alleged conflicts of interest, have any federal judges or lawyers spoken out against Boasberg hearing the case.
Instead, Boasberg has received professional support for his stand. Indeed, when the ABA held its annual antitrust conference last week, it featured Boasberg as a speaker. What made that odd was that Boasberg’s most notable experience is in criminal prosecution and national security law. Boasberg, seated two spots away on a speaking panel from the legendary Reagan federal appellate appointee Douglas Ginsburg, began his remarks with what the transcript of the conference video called a “reference to news about himself and Trump.” Judging by the laughter picked up on audio, Boasberg’s sly joke (“I’m very happy to be here where we’re talking just about antitrust”) brought down the house.
The second incident involved Senior Federal District Judge Royce Lamberth, a Reagan appointee, halting or modifying two Executive orders exercising authority over foreign policy and domestic security. The rulings are of a piece with Lamberth’s background. He is known for his harsh sentencing of January 6 defendants and his stewardship of the FISA court which facilitates the surveillance of American citizens and which, as Restoration News has reported, was also stewarded by James Boasberg. Lamberth has deep bipartisan institutional connections, including awards from the ABA in Washington, D.C., and for employing law clerks who later build up links to nonprofits including the Aspen Institute.
Of course, there’s no way to “prove” that these outcomes—the lack of outcry over Boasberg’s selection; Lamberth’s judicial interventions—flow directly from the influence of Rodel, the ABA, the National Constitution Center, and other bipartisan groups. But these groups inarguably serve as a support and reinforcement system for those judges who reinforce the inside the beltway institutions while asserting their authority as arbiters of politics.
What to Do?
Restoration News has listed possible ways to reduce judicial power, but, when it comes to judges’ broader support networks via organizations like Rodel and the National Constitution Center and the ABA, the establishment’s insidious bipartisanship is a hard problem to solve. Removing any federal funding for organizations like the ABA could offer one partial solution. Congress could provide another with investigations into these nonprofits, their politicization, and their influence on judges.
A final, much bigger fix to the problem of judicial empowerment and the system which promotes it has emerged. Thought leaders on the Right have begun discussing limiting or diluting judicial authority by changing our view of the role of the Courts. This fix has received attention Jonathan Mitchell, the originator of the argument that won Dobbs v. Women’s Health, but different versions of it have made inroads with some on the Left.
Mitchell argues for taking a view of judges that is similar to that of the Founders, particularly Thomas Jefferson and James Madison. They saw the judiciary as the most suspect branch of government because it was the least directly accountable to the people. For the crafters of the Declaration of Independence and the Constitution, legislatures and executives in states and nationally were the proper drivers of politics. In fact, the very idea that “it is emphatically the province and duty of the judicial department to say what the law is,” the idea of judicial supremacy that became the basis of federal courts’ authority after Chief Justice John Marshall stated it in 1803, was rejected by Madison and Jefferson.
For Mitchell, like for Madison and Jefferson, judicial supremacy is “a choice that must be defended”; and his view implies that Marshall’s 1803 proclamation was “a power grab that we have mostly accepted for more than two hundred years.” This has put him at odds with both the Liberal and Conservative judicial establishments. But it is faithful to the vision of the crafters of the Declaration of Independence and the Constitution. As we confront the deep-rooted problem of judicial interference, it’s a perspective worth considering.