The think-tank fellow and former top congressional staffer talks to Michael E. Hartmann about effective and ineffective nonprofit projects and activities related to the judicial-nomination and -confirmation processes, what could perhaps be done legally or regulatorily about improper endeavors in this context, if anything, and the benefits of philanthropically supporting efforts in the area.
In early March, Michael Fragoso become a fellow at the Ethics and Public Policy Center in its program on The Constitution, the Courts, and Culture. Now an attorney in private practice, Fragoso has served in all three branches of the federal government.
Most recently, he was chief counsel in the Office of the Republican Leader, Sen. Mitch McConnell, where his responsibilities included judicial nominations and confirmations. He has also been chief counsel for nominations and constitutional law for Senate Judiciary Committee Ranking Member Chuck Grassley and Chairman Lindsey Graham, and he was once deputy assistant attorney general for nominations in the Department of Justice’s Office of Legal Policy, where he directed the department’s work on over a hundred judicial nominations. He clerked for Judge Diane Sykes on the Seventh Circuit Court of Appeals.
Fragoso was kind enough to join me for a recorded conversation last week. In the first part of our discussion, which is here, we talk about the role of the American Bar Association (ABA) and other, different kinds of nonprofit groups in the federal judicial-nomination and -confirmation processes.
The just more than 15-minute video below is the second part, during which we discuss effective and ineffective nonprofit projects and activities related to the nomination and confirmation processes, what could perhaps be done legally or regulatorily about improper endeavors in this context, if anything, and the benefits of philanthropically supporting efforts in the area.
“In this space in particular, there tend not to be people in the government who do it for a very long time,” Fragoso tells me. “It’s an area where there’s a lot of turnaround, so having people on the outside who have this knowledge can be very helpful.
“There’s a bit of a difference too, between how Republicans and Democrats operate in this space,” he adds. “What I’ve found is that Republican staff tend to do a lot of their own work. Our guys really dig through these people’s records.” Liberals “tend to rely more, especially when they’re on offense, on their outside groups to give them the information. … How the groups play with relation to the official side, it really does vary from party to party.”
This “could be function of the resources available,” according to Fragoso, or it
could just be the tradition of it. Again, they’ve been doing that for a long time. Or, the other sort of difference is, as a general matter, their base and their organizations are a lot more animated in trying to take out Republican nominees, and ours are a lot more animated in trying to get Republican nominees over the finish line.
Citing historical examples, he says liberal groups have “spent a lot of time and money just hammering Democrats from the top to make specific tactical decisions,” including aggressive use of the Senate’s filibuster rules, among others. “These are the sorts of things that sort of your average Democrat probably was uncomfortable doing, but they were under tremendous pressure on the tactical side from the left to do that,” with “all sorts of negative effects, even from their own perspective ….”
The former McConnell staffer notes that “focusing specifically on tactical stuff” is “in the province of members and leadership.” When nonprofits try to assume that role, “I think it tends to backfire.”
Asked whether exempt activity in this context is truly charitable, Fragoso says, “Educating the public seems pretty charitable … I’m not sure by the dictionary definition, but given what the IRS considers charitable.”
And if not, what could perhaps be done legally or regulatorily about it? “Probably not that much,” he answers. “I’m not especially interested in advocating for any sort of regulation of this space, because at the end of the day, it is a question of speech.” Maybe a solution is “just get rid of any caps on political spending and then you won’t necessarily have to deal with these kinds of regulatory fictions.”
Overall, “I think there’s probably few things more important in the long term than the composition of the courts, either for the right or for the left, and I think there’s really the capacity to do a lot of good in this space if you’re a philanthropist,” Fragoso concludes. “The nonprofit, unofficial side” provides “institutional knowledge that allows the official side to operate effectively. … It depends on what the grant is for, but insofar as it is funding the capabilities to maintain institutional knowledge, that actually is potentially very helpful ….”
This article first appeared in the Giving Review on April 1, 2025.
