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Federalist Society


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Conceived in 1982 as a conservative counterweight to the allegedly liberal-leaning National Law Guild, the Federalist Society has become an exceedingly influential organization, helping tilt the federal judiciary to the right during the last three decades—including all the way up to the Supreme Court.

According to its website, it aims to reorder "priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law." It claims to be "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."[1]

During Barack Obama's presidency, the Federalist Society has consistently pushed right-wing judicial arguments. It has published papers claiming that the Dodd-Frank financial reform is unconstitutional[2] and has cheered lawsuits against the Affordable Care Act.[3] It has also promoted hawkish legal policies in response to terrorism. For instance, during a 2011 presentation at a Federalist Society event in Washington, D.C., Michael Mukasey, attorney general under President George W. Bush, argued that the United States should establish an entirely new court system—what he called a "national security court"—for handling terrorism cases. He also staunchly defended his support for the use of torture ("enhanced interrogation techniques"), arguing that Obama administration officials are "strategically myopic" when it comes to terrorism and that "It will take a struggle within Islam, not wishful thinking, to move adherents away from the path of jihad."[4]

During a speech at another 2011 Federalist Society event, Sen. Jim DeMint (R-SC) argued that President Obama should not be considered the country's leader. "This whole idea that the President is the leader of our country is a mistake. … A candidate who goes out and makes all these promises about what he's going to do in all areas of our society needs to be removed from consideration."[5]

The Federalist Society has a track record of providing a venue for political figures who aggressively promote militarist U.S. security policies. Shortly after the November 2006 midterm elections, in which Democrats took power in both houses of Congress, Vice President Dick Cheney told attendees of the Federalist Society's annual convention in Washington that the administration was intent on pressing full-steam ahead in Iraq. "Some in our country may believe in good faith that retreating from Iraq would make America safer," said Cheney. "Recent experience teaches us the opposite lesson." Although this comment was warmly received the Washington Post noted that greater interest was given to Cheney's vow that "nothing that's happened in the last two weeks will change [President George W. Bush's] commitment to nominating first-rate talent like John Roberts and Sam Alito," a comment that garnered "big, big applause from the audience of more than 600."[6]

History, Agenda, Activities

The Federalist Society's core agenda has been to reshape the landscape of the U.S. judiciary by promoting right-wing judicial activists in positions of power. As scholar Jerry Landay wrote in a 2000 profile of the group: "With 25,000 members plus scores of close affiliates nationwide-including Supreme Court Justices Thomas and Antonin Scalia, Senate Judiciary Committee Chairman Orrin Hatch, and University of Chicago brain-boxes Richard Epstein and Frank Easterbrook (also a federal appellate judge)-the Federalist Society is quite simply the best-organized, best-funded, and most effective legal network operating in this country. Its rank-and-file includes conservative lawyers, law students, law professors, bureaucrats, activists, and judges. They meet at law schools and function rooms across the country to discuss and debate the finer points of legal theory and substance on panels that often include liberals-providing friction, stimulus, and the illusion of balance. What gets less attention, however, is that the Society is accomplishing in the courts what Republicans can't achieve politically."[7]

Established in 1982 by a small clique of conservative law students and lawyers based at the University of Chicago, Yale, and Harvard, the Federalist Society has grown into one of the country's most powerful legal associations. "In the 1980s and 1990s, the society [became] central casting for the biggest names in Washington's ideological wars—Robert Bork, Clarence Thomas, Kenneth Starr," wrote Nina Easton, author of the Gang of Five.[8] As of late 2006, according to the Washington Post, the organization boasted a $7 million budget with funding from foundations, individuals, and corporations, and "claims about 40,000 members and associates, student chapters on all 180 or so law school campuses, and 70 more chapters for lawyers and judges."[9]

In addition to its annual lawyers conventions, student division, and many publications, the Federalist Society also runs a program called NGO Watch in conjunction with the American Enterprise Institute. Ralph Nader has criticized NGO Watch and AEI: "During the past 22 years, the AEI, their nearby corporate patrons, their allied trade associations and corporate think tanks have, in effect, taken over the executive branch, the Congress, and promoted the judgeships of right-wing corporate lawyers . What's left to do? How to keep its corporate supremacists writing those big checks? Why, go after the liberal or progressive nongovernmental associations. Describe them as a collage of Goliaths running an all-points wrecking machine over government and business." [10]

A large number of the Federalist Society's current and former members—about two dozen in all—were tapped to serve in the first George W. Bush administration, including Spencer Abraham as energy secretary, Gale Norton as interior secretary, John Ashcroft as attorney general, and Theodore Olson as solicitor general. Others include: Alex Acosta (deputy assistant attorney general), Bradford Berenson (associate counsel to the president), Ralph Boyd (assistant attorney general), Michael Chertoff (assistant attorney general and secretary of homeland security), Paul Clement (principal deputy solicitor general), Daniel Collins (associate deputy attorney general), R. Ted Cruz (associate deputy attorney general), Viet Dinh (assistant attorney general), Noel Francisco (associate counsel to the president), Sarah Hart (director, National Institute of Justice), Brian Jones (general counsel, Education Department), Brett Kavanaugh (associate counsel to the president), Thomas Sansonetti (assistant attorney general), Eugene Scalia (Department of Labor solicitor; son of Antonin Scalia), Larry Thompson (deputy attorney general), and Edward Whelan (principal deputy assistant attorney general).[11]

In response to media scrutiny and criticism of its undue influence, Homeland Security Secretary Chertoff, responded in an interview: "Some people now have taken up the idea that, really, the Federalist Society is kind of like a modern-day da Vinci conspiracy, a secret society that controls all the legal jobs and all the legal decision-making in the administration. And of course that is nonsense." [12]

Among the founders and early supporters of the Federalist Society were Edwin Meese, Irving Kristol, Antonin Scalia, and David McIntosh. In the society's early days, it was regarded as the right-wing counterpart to the National Lawyers Guild. As Bruce Shapiro wrote in a profile of the group for Salon.com: "In 1982, Meese, William Rehnquist, and other first-generation legal conservatives reached out to law students and encouraged the founding of a new organization: the Federalist Society. Funded generously by Richard Mellon Scaife and patrons, the Federalist Society became a national networking organization that nurtured young conservatives and swiftly became the crucial channel to Supreme Court clerkships and prestigious jobs in the Reagan administration. In Closed Chambers, former clerk [Edward] Lazarus outlines how Federalist Society clerks formed a self-described 'cabal against the libs' to push justices in a rightward direction. Conservative donors like Scaife were encouraged to endow professorships and to fund conferences and training institutes to tutor judges in corporate deregulation and other articles of conservative legal faith." [13]

In November 2003, the Federalist Society hosted a conference on International Law and American Sovereignty that included presentations by a number of Bush administration hardliners, including John Bolton, John Negroponte, and Paula Dobriansky. In his conference speech, Bolton addressed the legitimacy of the war in Iraq, the rejection of the International Criminal Court, and the Bush administration's counterproliferation policy. He argued: "The question of legitimacy is frequently raised as a veiled attempt to restrain American discretion in undertaking unilateral action or multilateral action taken outside the confines of an international organization, even when our actions are legitimated by the operation of our own constitutional system. The fact, however, is that this criticism would de-legitimize the operation of that constitutional system, while doing nothing to confront the threats we are facing. Our actions, taken consistently with constitutional principles, require no separate external validation to make them legitimate. Whether it is removing a rogue Iraqi regime and replacing it, preventing weapons of mass destruction proliferation, or protecting America against an unaccountable court, the United States will utilize its institutions of representative government, adhere to its constitutional structures, and follow its values when measuring the legitimacy of its actions. This is as it should be, in the continuing international struggle to protect our national interests and preserve our liberties." [14]

The nomination of Supreme Court Chief Justice John Roberts renewed criticism of the society's disproportionate influence and secretive ways. Well-liked by Federalist Society members, Roberts denied during the confirmation process that he'd ever been a member of the organization, even though he once was listed in its leadership directory. Similarly, when Bush nominated Harriet Miers to the Supreme Court, she oscillated on her opinion of the Federalist Society, but admitted that she regarded the Federalist Society as an important White House ally. [15]

Supreme Court Justice Samuel A. Alito is a longtime Federalist Society member who was nominated by President Bush to replace retiring Justice Sandra Day O'Connor. He moderated a panel discussion about the USA PATRIOT Act at the society's November 2004 national conference, introduced a debate on the independent counsel law at the 1989 national conference, and has addressed the society on other occasions. An article he wrote on the role of the lawyer in the criminal justice system, based on a speech he made at the 1997 convention, was published in one of the society's newsletters. [16]

Despite the strong conservative leaning of the Supreme Court, many Federalist Society members surprisingly complain that the court strays too far into liberal territory with its decisions. "What is there to be jubilant about?" asked Edward Whelan, a society member and the president of the Ethics and Public Policy Center. "We have a Supreme Court that has been essentially lawless in so many respects for decades now, and a lot of work has to be done to restore it to its proper role."

"Membership in or participation in Federalist Society events doesn't disqualify someone from office, but it can help people understand the judicial philosophy of the nominee," said Ralph Neas, president of People for the American Way. "The Federalist Society likes to pretend it's just a debating club, but for the last 20 years it has been at the forefront of the efforts to push a right-wing counterrevolution in the courts and undo decades worth of precedent" (Associated Press, November 2, 2005).[17]

Funding

Initial funding for the Federalist Society came from the Institute for Educational Affairs, a group founded by Irving Kristol and William Simon. Kristol remained an important funding adviser, while his son William Kristol became closely involved with the Federalist Society, writing for its publications and speaking frequently at its gatherings. Other early funding came from Pittsburgh mogul Richard Mellon Scaife, the Olin Foundation, the Bradley Foundation, and the Smith Richardson Foundation. In recent years, the society has received grants from a number of foundations, including Sarah Scaife, Carthage, Koch, Olin, Bradley, Earhart, and Castle Rock.[18] In its 2009 Form 990 the Federalist Society listed public support of nearly $8,775,000 and reported nearly $10 million in total revenues.[19]

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Sources

[1]The Federalist Society, "About Us," http://www.fed-soc.org/aboutus/.

[2]The Federalist Society, "The Dodd-Frank Wall Street Reform & Consumer Protection Act of 2010: Is It Constitutional?" November 16, 2010, http://www.fed-soc.org/publications/detail/the-dodd-frank-wall-street-reform-consumer-protection-act-of-2010-is-it-constitutional.

[3]FedSoc Blog, "First Appeal on Health Care Reaches Supreme Court," July 28, 2011, http://www.fedsocblog.com/blog/first_appeal_on_health_care_reaches_supreme_court/.

[4]Catholic University of America, "Former U.S. Attorney General Speaks to Federalist Society," February 7, 2011, http://www.law.edu/2011-Winter-Spring/february/Former-US-Atty-Gen-Speaks-to-Fed-Society.cfm.

[5]Ryan Reilly, "Jim DeMint: President Barack Obama Is Not The Nation's Leader," Talking Points Memo, February 17, 2011, http://tpmdc.talkingpointsmemo.com/2011/02/jim-demint-president-barack-obama-is-not-the-nations-leader.php.

[6]David Montgomery, "No Secrets Here: Federalists Society Plots in the Open," Washington Post, November 18, 2006, http://www.washingtonpost.com/wp-dyn/content/article/2006/11/17/AR2006111702069.html.

[7]Jerry Landay, "The Federalist Society: The Conservative Cabal That's Transforming American Law," Washington Monthly, March 2000, http://www.washingtonmonthly.com/features/2000/0003.landay.html.

[8]Nina J. Easton, Gang of Five: Leaders at the Center of the Conservative Ascendancy (New York: Touchstone Books, 2000).

[9]Nina J. Easton, Gang of Five: Leaders at the Center of the Conservative Ascendancy (New York: Touchstone Books, 2000).

[10]Ralph Nader, "Has the American Enterprise Institute Lost Contact with Reality?" Common Dreams, June 13, 2003.

[11]"The Conservative Movement Moves In," Mediatransparency.org, http://old.mediatransparency.org/story.php?storyID=20.

[12]David Montgomery, "No Secrets Here: Federalists Society Plots in the Open," Washington Post, November 18, 2006, http://www.washingtonpost.com/wp-dyn/content/article/2006/11/17/AR2006111702069.html.

[13]Bruce Shapiro, "True Believer," Salon.com, July, 3, 1998, http://www.salon.com/news/1998/07/03news.html.

[14]John Bolton, Address to the Federalist Society Conference, November 13, 2003.

[15]"Alito a Longtime Federalist Society Member," Associated Press, November 2, 2005.

[16]"Alito a Longtime Federalist Society Member," Associated Press, November 2, 2005.

[17]David D. Kirkpatrick, "Despite Recent Gains, Conservative Group is Wary on Direction of Court," New York Times, November 11, 2005.

[18]Media Matters Action Network, Conservative Transparency: Federalist Society for Law and Public Policy Studies, http://mediamattersaction.org/transparency/organization/Federalist_Society_for_Law_and_Public_Policy_Studies/funders.

[19]Guidestar, Federalist Society: 2010 Form 990, http://www.guidestar.org/FinDocuments/2010/363/235/2010-363235550-06cf42f4-9.pdf.

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Federalist Society Résumé

    Contact Information

    The Federalist Society

    1015 18th Street, NW

    Suite 425

    Washington, DC 20036

    Phone: (202) 822-8138

    Email: info@fed-soc.org

    Founded

    1982

    About (as of 2011)

    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. The Society seeks both to promote an awareness of these principles and to further their application through its activities.

    Selected Principals (as of 2011)

    • Edwin Meese (Co-Founder)
    • John Ashcroft (Member)
    • Robert Bork (Member)
    • Michael Chertoff (Member)
    • Gale Norton (Member)
    • Theodore Olson (Member)
    • John Roberts (Member)
    • Antonin Scalia (Member)
    • Samuel Alito (Member)
    • Richard Mellon Scaife (Patron)
    • Irving Kristol (Co-Founder, deceased)

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