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Monday, January 30, 2006

The Federalist Society Rejoices At Alito's Confirmation; Conservative "Reformation" Of the Court is Nearly Complete

I have often made the point that the Federalist Society is nothing more than the legal arm of the Republican party, a tool in the conservative movement (as they call it) or the Vast Right Wing Conspiracy (as some of us call it.) Today's New York Times has an article explaining the utter delight in which the founding members of the Federalists take in Alito's nomination. Here's a snippet from the article:

Judge Alito's ascent to join Chief Justice Roberts on the court "would have been beyond our best expectations," said Spencer Abraham, one of the society's founders, a former secretary of energy under President Bush and now the chairman of the Committee for Justice, one of many conservative organizations set up to support judicial nominees.

He added, "I don't think we would have put a lot of money on it in a friendly wager."

Judge Alito's confirmation is also the culmination of a disciplined campaign begun by the Reagan administration to seed the lower federal judiciary with like-minded jurists who could reorient the federal courts toward a view of the Constitution much closer to its 18th-century authors' intent, including a much less expansive view of its application to individual rights and federal power. It was a philosophy promulgated by Edwin Meese III, attorney general in the Reagan administration, that became the gospel of the Federalist Society and the nascent conservative legal movement.

. . .

With grants from major conservative donors like the John M. Olin Foundation, the Federalist Society functioned as a kind of shadow conservative bar association, planting chapters in law schools around the country that served as a pipeline to prestigious judicial clerkships.

Make no mistake about it, the Federalist Society was created as a way for the Republican party to take firm control of the judiciary away from independant jurists. The group's law school chapters provide the breeding ground for future Republican appointees. No such group serves as a liberal counterweight. There are many liberal legal organizations, but none of them serve as the kind of "litmus test" that membership in the Federalist Society does. For those who would like to claim that the Federalist Society is non-political, I offer another tidbit from the New York Times:

Conservatives had begun planning for a nomination fight as long ago as that February meeting, which was led by Leonard A. Leo, executive vice president of the Federalist Society and informal adviser to the White House, Mr. Meese and Mr. Gray.

The founding members of the Federalist Society were mostly Reagan appointees who were determine to effectuate social change, not to provide some kind of new legal legitimacy. Theories such as originalism are but methods for the right-wing to rewrite the law without being totally obvious about it.

The revelation that emerged that Alito admitted that "the Constitution does not protect the right to abortion" was dealt with just as any corporate would shrug off negative news. The Federalist Society turned to their PR firm:

"It was a done deal," one of the Democratic staff members of the Senate Judiciary Committee said, speaking on the condition of anonymity because the staff is forbidden to talk publicly about internal meetings. "This was the most evidence we have ever had about a Supreme Court nominee's true beliefs."

Mr. Leo and other lawyers supporting Judge Alito were inclined to shrug off the memorandum, which described views that were typical in their circles, people involved in the effort said. But executives at Creative Response Concepts, the team's public relations firm, quickly convinced them it was "a big deal" that could become the centerpiece of the Democrats' attacks, one of the people said.

Judge Bork, a far-right conservative jurist whose nomination to the Supreme Court was rejected by the Democratic Senate in 1987, is an active member of the Federalist Society and a huge proponent of Alito and Roberts. This is the same man who said that anytime you take away one person's rights, you necessarily take away another's. Apparently someone has the "right to segregate", under this demented quasi-logic. Bork loves Alito and Roberts:

"It has been a long time coming," Judge Bork said, "but more needs to be done."

What do Judge Bork and the rest of the Federalists mean as "more"? I'll tell you -- they want to overturn Roe v. Wade, they want to increase the power of big corporations, they want to continue to narrow down the Commerce Clause until it only protects the interests of "morality" (as Scalia claims it can), they want to ultimately eliminate the right to privacy, prevent any future social progress (as exemplified by the activist destruction of VAWA). None of these goals has anything to do with legitimate legal theory. Legal goals are procedural in nature, but the Federalists are more concerned with results.

I have a question for conservatives: how come "originalism" and other theories used by conservative jurists always result in acheiving conservative social change? How come originalism just happens to do away with laws protecting against spousal abuse and gun violence, but doesn't stop the federal government from telling states if they can allow medicinal cannabis? How come the interests of the rich are always favored? It's because legal theory provides but mere rationalizations for stealing rights and making the law work only for rich, white males.

Comments on ""


Anonymous Tom said ... (7:37 PM) : 

I think most conservatives just want the judiciary to be limited to the role it should properly have, which is just to say what the law IS (originalism). They should not be able to make new laws as they see fit as they are just 9 unelected people, not answerable to the public. Politicians should make the laws since they are answerable to the people.

I believe that is what is driving originalism with most conservatives, not an underlying agenda to overturn Roe v. Wade, or increase corporate power, etc...

We should have amendments to the constitution to protect all the rights which you complain are going to be stripped away and then we could all agree.

If you read enough Sup Ct cases (and I know you do) you will see both Thomas and Scalia taking positions you wouldn't expect conservatives to take, so I don't think originalism "always" results in conservative social change


Blogger Michael Alexander said ... (10:03 PM) : 

Both sides want an impartial judiciary. But a judge's job necessarily requires interpretation. The Constitution is explicit in the 9th amendment that other rights, not enumerated, are still held to the people. These are privacy, abortion, etc. Conservatives such as Bork betray the Constitution when they claim otherwise.

Liberals -- or those who believe what Justice Breyer calls "Active Liberty" -- believe that the Constitution should guarantee fundamental freedoms and the way to guarantee these freedoms may change slightly over time.

I wholeheatedly disagree with your statement that conservatives' goal is simply "good law" rather than increasing corporate power and giving scraps of religious fundamentalism to the red state wolves. Are you really trying to tell me that what motivates George W. Bush is a passion for a limited judiciary instead of a judiciary that benefits him and his corporate cronies? The facts demonstrate that the Rehnquist court was hugely activist and struck down Congress laws frequently. This argument that conservatives want judges who don't tell Congress what to do is 100% contrary to the facts. I've posted them before; the conservatives are far more likely to strike down Congress' laws based upon their far-right interpretation of the Constitution. See VAWA and the Brady Bill.

What Republicans want when they speak of a "limited judiciary" is nothing more than a judiciary that refuses to check Congress and the President. Democracy requires a judiciary that can tell Congress "NO" when Congress tries to take away people's rights. Under originalism, the Civil Rights Movement never would have happened. Originalists consider the Constitution a dead document that can only be used in the way that people 225 years ago saw fit.

The limited judiciary that conservatives favor would be just the type of judiciary that would always come out in favor of those with power -- big corporations, disgraceful pollutors and religious lunatics.

P.S. Thomas and Scalia only ever come to "unexpected" decisions in certain cases because to do otherwise would be to undermine their reasoning in "more important" cases. Hence Thomas' decision in Raich -- he dissented because to do otherwise would be to come out in favor of an expansive Commerce Clause, something Thomas doesn't want to do because he wants a neutered Federal government. Originalism is nothing more than an attempt to legitimize the right-wing revolution of the Courts.


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