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Thursday, October 27, 2005

The Federalist Society: Dedicated to Corporate Evil

There's nothing wrong with an organization committed to presenting the other side of a legitimate debate. This is essentially the self stated goal of the Federalist Society, a right wing network of judges and lawyers. Here's the purpose statement from the Federalist Society homepage:

  • Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society. While some members of the academic community have dissented from these views, by and large they are taught simultaneously with (and indeed as if they were) the law.
  • 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.
Part of the purpose just attacks liberal ideology. First, it's highly unclear what a "centralized and uniform society" is. Second, it's unclear why it's bad to have a "centralized and uniform society." Third, no evidence backs up the bold statement that the legal profession engaged in a massive conspiracy to teach orthodox liberal ideology as if it were the law. I attend law school in liberal San Francisco; my professors leave their opinions at home, for the most part. But for the purposes of this article, it really doesn't matter whether "orthodox liberal ideology" is really being taught in schools as if it were the law. The problem is that the Federalist Society has a very different goal.

The real goal of the Federalist Society is to to transform the independant judiciary that we now have into a craven Republican machine. Creating a large network of young conservative lawyers is essential to the GOP's goal of ensuring that judicial appointments are not based on qualifications but rather on politics. This defies the Constitutionally mandated purpose of an independant judiciary. Republican politicians use the Federalist Society as a kind of vetting for potential appointments. If you aren't a Federalist, you aren't going to get appointed by Republicans.

What's so bad about trying to remake the judiciary as a Republican institution? Other than my disagreement with their politics, it turns the Federalist Society into lying hypocrites. The Federalist Society is against so-called activist judges according to this line from their purpose statement: " it is emphatically the province and duty of the judiciary to say what the law is, not what it should be." The problem, of course, is that the Federalist Society and other Republicans have no problem with activist judges as long as they are conservative. Liberal judges are framed as "activist judges," while conservative judges who stretch the law in the same manner are hailed as "originalists."

Former Judge Catherine Crier recently wrote a book titled "Contempt: How the Right is Wronging American Justice." Crier is no liberal; 3 years ago she wrote a book called "The Case Against Lawyers" which largely attacked trial lawyers and huge damage awards. As a thinking centrist, Crier points out the danger in the increasing power of the Federalist Society and the covert Republican revolution in the courts:

An activist judge, or one who “makes law,” is frequently called “liberal” and denigrated, while “originalists,” or those who “strictly interpret” the Constitution, are usually deemed “conservative” and revered, at least by the very vocal extreme right wing that is putting American justice on trial. But these terms ignorantly pit political ideology against legal realities. As weapons, this rhetoric sounds quite damning, but the words are meaningless.

When opinions are analyzed, judges regularly move from one camp to another regardless of their labels or stated philosophy. “Originalists” have discovered meaning in the Constitution that does not exist, and “activist” judges have exercised considerable restraint when asked to strike down or change our laws. Often, judges render decisions that cannot be explained by their legal philosophy because they are more interested in justice than rigid consistency with a theory of constitutional interpretation. Ultimately, these categories are effective buzzwords used to inflame an uninformed electorate. In recent years, the Far Right has utilized this tactic for one purpose alone: to capture the last somewhat-independent branch of our government.

The Far Right wants to control our federal judiciary in order to enact its specific reactionary agenda. At first blush, this agenda would seem to center on social issues — abortion, gay rights, affirmative action, and religion in schools. These items certainly garner the most press attention, but don’t be fooled. There is another insidious aspect to their designs. Economic and political issues are crucial to them as well. If they are successful in our federal courts, this plot will have a profound impact on citizens in every arena. They are making efforts to curtail federal regulation of businesses, environmental protections, worker’s rights, bankruptcy laws, tort liability, and property interests, among other causes.

This radical group also wants much more control exerted by the states. For over a century, the federal courts have built a safety net in order to uniformly protect the constitutional rights of every American. But as Edwin Meese began arguing in the 1980s that the Bill of Rights does not apply to the states, the extreme Right believes that such Constitutional protections only exist to inhibit action by the national government. They want our individual guarantees surrendered back to the states, where enforcement will diminish and maybe disappear altogether.

Despite the Far Right’s claims that they want the courts to leave Congress alone, they actually aim to reduce congressional authority. They want ultraconservative judges to strike down a great deal more federal legislation and to negate decades of legal precedent — the very definition of “reactionary.” The extreme Right may argue against judicial “activism,” but they certainly know how to practice it.

If the Federalist Society and other conservative lawyers want to transform the court into a reactionary body that caters to the demands of the Republican Party, they have a moral duty to inform the public as to their true goal. By practicing deceit and dishonesty, the Federalist Society reveals their true goals to be too evil to honestly hold.

Comments on ""


Anonymous fellow student said ... (5:13 PM) : 

A few points - The Federalist society does not cater to the Republican party, rather there are many non-Republicans associated with the organization, namely libertarians. The organization does not litigate cases, and does not support any political candidates (unlike the ACLU), many members would disagree over which candidate to support in any case.

The thing that members have in common is that they are conservative, and they desire to hear both sides of issues. If you don't think that law schools are more liberal than the rest of society than how do you explain that all of the professors at our school are liberal, none are conservative. That there are approximately 5+ progressive/ liberal poltical student organizations, while just one conservative one. When talks are organized at school to discuss the upcoming Prop's in the election only the liberal side is presented.

I don't consider the Federalist society to be evil. I believe they represent an opinion that needs to be heard in the liberal ivory tower of law schools.


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