The Daily Sandwich

"We have to learn the lesson that intellectual honesty is fundamental for everything we cherish." -Sir Karl Popper

Location: Boston, Massachusetts, United States


Monday, November 21, 2005

The Federalist Society, the fundamentalist right, and the fight for our courts

The cryptic Shallow Larynx has forced me to put up another post today. It's a piece on the reactionary attempt to control the courts that's been proceeding on course for the last two decades. This is just the sort of post that cause conservative readers to dismiss me as some sort of leftie-paranoiac and extremist. But I know whereof I speak in this instance. I grew up with several conservatives who grew up to become lawyers and join the Federalist Society. And they love nothing more than the phrase "strict constructionist." Any objective constitutional scholar can attest to the fact that it is recent Republican appointees to federal courts who are, in fact, the dreaded "activist judges," who legislate from the bench by striking down an enormous number of acts of Congress, rather than adjudicating them through meticulous attention to the intent of the framers.

My favorite example, and one of the most blatant, is conservative judges' eagerness to promote religion through judicial means. The simple fact is, as I'm sure most of my readers know, that the nation's founders were of a religious mindset that would disqualify them as Christians according to many Protestant sects today, and they undeniably recognized the dangers of theocratic rule.

Are you a Minimalist? A Strict Constructionist? Or an Evolutionist then, a partisan of a "living Constitution?" If you find yourself scratching your head with perplexity, welcome to the club of 99.9% of Americans who understand none of these questions. If not, perhaps you were present at the annual Federalist Society dinner last Thursday in Washington. In which case, you will surely have heard Karl Rove's speech. After weeks of silence, all devoted to avoiding an indictment in "Plamegate," the White House guru chose this association to make a much-noted reappearance. The Federalist Society? A select and powerful club of jurists among whom a few leftists are numbered for appearances' sake, but which, in fact, finds itself at the heart of the most important conservative crusade of the Bush presidency: a complete takeover of the judicial system.

The choice of Karl Rove was no accident. He came to dinner with Leonard Leo, the association's vice president, who has just taken a seven month leave to help confirm conservatives to the Supreme Court. Leo is part of a group nicknamed "the four horsemen" that organizes a telephone conference every Monday with the White House. Karl Rove often participates in it. There, the latest news about the campaign to stuff the federal bench with reactionaries is exchanged. It's a longterm campaign, begun in the 1980s by Edwin Meese, Ronald Reagan's Attorney General and one of the "four horsemen."

Now, today, these men are close to achieving their objective: Republican appointees control ten of the thirteen federal courts, a number that should increase to 12 in 2008. As of today, according to the "National Law Journal," close to 85% of Appeals Court judges will have been chosen by Republicans. The jackpot is obviously the Supreme Court, where, after John Roberts's confirmation as Chief Justice, hard-line Republicans are about to obtain a solid majority with the nomination of Samuel Alito, an eminent member ... of the Federalist Society.

Why this obsession on the right? After all, the Republicans already control the Presidency, the Senate, and the House of Representatives and they've named six of the nine judges on the Supreme Court. To justify their relentlessness, the conservatives advance a convenient explanation which they've polished to a fine luster over the years. America is victim to "judicial imperialism" on the part of judges transformed into "robed legislators," as Rove repeated last Thursday. Bush, for his part, does not miss any opportunity to denounce those magistrates who "legislate from the bench" instead of "strictly" applying the Constitution, all the Constitution, nothing but the Constitution.

Recommended reading. Especially if, like me, you know a number of conservative attorneys who pay lip service to the Federalist Society as some attempt to show their support for conservative causes. The simple fact of the matter is that, like these friends of mine, they know nothing of the group's history or agenda, and just feel that it's 'something they should do' as conservatives, without having any idea of what their contributions of time and money really represent. Their rationale is, across the board, nothing more than a vague sense that the courts should contain any potential expansion of federal power. The actions of right-wing judges-- many of them FedSoc members in good standing-- have frequently betrayed even this value. The rub is that their judgments always advance the right-wing political aims of corporatism and theocracy.