Trump attacks Leonard Leo.

Leo advised Trump on judicial nominations, though apparently not on the one that prompted Trump's tirade.

Donald Trump ranted today against the Federalist Society and its former executive vice president, Leonard Leo. With his usual subtlety and class, Trump called Leo a “sleazebag” who “probably hates America.”

Trump’s attack was prompted, he made clear, by a unanimous decision from the U.S. Court of International Trade that struck down a big portion of Trump’s tariffs. One of the judges on the three-person panel that blocked the tariffs is Timothy Reif. Trump appointed Reif during his first term as president.

Trump blamed Leo for his decision to select Reif. However, as I understand it Reif, who had been an advisor to Democrats and a Democrat staffer on Capitol Hill, was not a Federalist Society member and was not recommended by Leo. (The Federalist Society does not recommend judges). It’s also my understanding that the court in question is required by statute to have no more than five members of one political party and that, given the court’s composition at the time, Trump had to nominate a Democrat.

Leo responded to Trump’s attack by praising the president for making “the Federal Judiciary better than it's ever been in modern history.” Kudos to Leo for taking the high road.

Leo is right about Trump’s first-term nominations, but there’s a more fundamental point to be made. The Federalist Society is a principled organization whose statement of purpose includes this key piece:

The Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.

When Trump sought advice on judicial nominations from a leading member of this organization, the only thing he had a right to expect was that the adviser would suggest candidates who share this vision of the legal order. This is what Leo did.

During Trump’s first term, this wasn’t much of a problem for Trump. That’s because Trump’s first term was conservative, to a considerable degree.

Trump’s second term is not. Tariffs might (or might not) be good policy, but they are not conservative or libertarian policy. Mass deportations without a hearing might (or might not) be a good idea, but they are not conservative or libertarian. Trying to tell colleges what they can and cannot teach might (or might not) be a necessary corrective to a higher education system that has betrayed its proper mission. But it’s not conservative or libertarian for the government to assume that role.

I’ve argued that the Trump administration is radical. George Will characterizes it as “pure progressivism in action.” Will backs up this description by citing progressivism’s nine core components and arguing that Trump is now on board with each one.

Genuine conservative jurists don’t strike down laws just because they are progressive. This largely explains why some of Trump’s most controversial policies have passed muster when scrutinized by Trump-appointed judges.

But in some cases, Trump’s radical overreach has made it impossible for Trump-appointed judges to rubber stamp his policies. That’s a credit to Leonard Leo, not a black mark — and certainly not cause to question his patriotism.

But the ideological disconnect between Trump’s second term and conservative principles is not the whole story. There’s also the fact that Trump expects personal, not just ideological, loyalty from the judges he appoints. Indeed, I believe personal loyalty comes first for Trump.

This, I think, explains Trump’s selection of Emil Bove to serve on the Third Circuit Court of Appeals? Ed Whelan argues persuasively that Bove has neither the temperament nor the credentials one should expect from a nominee to that position. What he does have is the credential of having been Trump’s criminal defense lawyer and an impeccable record as a Trump loyalist/enforcer.

There’s nothing wrong with a radical (or progressive) president nominating radical (or progressive) people to the judiciary. That’s the president’s prerogative, though it’s a mistake to ask someone like Leonard Leo for help in that endeavor.

But there is something wrong with a president nominating judges based on their personal loyalty to him. Leonard Leo would never assist in that endeavor; nor should any self-respecting person of any ideological bent.

Leonard Leo is not un-American by virtue of having recommended that Trump nominate the conservative judges he did. What’s un-American is nominating judges based on personal loyalty to the president.

It has been done, I believe, by other presidents, but only rarely. I hope Trump doesn’t make it his practice.