'Moderates' V. Madisonians: Some Excitable People Want You to Find the Federalist Society Frightening. Stay Calm

By Will, George F. | Newsweek, May 14, 2001 | Go to article overview

'Moderates' V. Madisonians: Some Excitable People Want You to Find the Federalist Society Frightening. Stay Calm


Will, George F., Newsweek


During the Second World War the allies used "bomber streams," sending so many bombers so rapidly over a particular point on the ground--sometimes 40 or more per minute--that German air defenses were overwhelmed by the profusion of targets. Now comes, for a similar reason, President Bush's "judicial-nominee streams," as he begins trying to fill, in the teeth of flak from Senate Democrats, 101 vacancies on federal courts.

So it is time NEWSWEEK readers became acquainted with a tentacle of the Vast Right-Wing Conspiracy that may hitherto have escaped their notice, but that recently has been in the news and soon will be even more so. Actually, it is about as conspiratorial as a steam calliope: its members sometimes even wear identifying neckties, emblazoned with little silhouettes of James Madison. On a single day a few weeks ago the society was the subject of stories in The Washington Post ("Federalist Society Becomes a Force in Washington") and on The New York Times's front page ("A Conservative Legal Group Thrives in Bush's Washington"--how is that for a revelation?).

The society, which is indeed an important source of appointees for Bush's administration, has 25,000 members nationally and a well-staffed Washington office. The society sponsors a full calendar of conferences on legal topics, but unlike the liberal (on abortion, gun control, racial preferences, etc.) American Bar Association, does not take stands on policy questions. The society resulted from spontaneous combustion in the nation's law schools among students discontented with the prevailing liberal orthodoxies of professors like... well, consider Bruce Ackerman.

An excitable academic at Yale's law school, Ackerman will be a prominent voice in the chorus claiming to represent moderation against the "extremism" of Bush's nominees. To rally the forces of moderation, as he understands it, he may lobby Democratic senators, who may not be familiar with his flamboyant theorizing. A measure of his moderation is his argument that the Senate should refuse to confirm any Supreme Court nominees "until the American people return to the polls in 2004." Ackerman dislikes the outcome of the 2000 election, and of all the Florida recounts, and he especially dislikes the U.S. Supreme Court's role in preventing Florida's Supreme Court from making Al Gore president.

He approvingly cites the action of the Senate after Lincoln was assassinated, an event Ackerman considers analogous to Florida's voting against Gore. The Senate said that because John Wilkes Booth, not the voters, had made Andrew Johnson president, retiring justices should not be replaced, and they were not.

Given that Ackerman is not bashful about reading judges less radical than he is out of the jurisprudential "mainstream," consider Ackerman's moderation as expressed in his theory that the Constitution can be amended without reference to the two ways of amending stipulated in Article V (by two thirds of both houses of Congress and three quarters of the states, or by a constitutional convention). …

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'Moderates' V. Madisonians: Some Excitable People Want You to Find the Federalist Society Frightening. Stay Calm
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