A Hostile Takeover: How the Federalist Society Is Capturing the Federal Courts. (Court Packing)

By Garbus, Martin | The American Prospect, March 2003 | Go to article overview

A Hostile Takeover: How the Federalist Society Is Capturing the Federal Courts. (Court Packing)


Garbus, Martin, The American Prospect


If you want to understand the systematic nature of the right's takeover of American public life, consider the Federalist Society. During the first Bush presidency and less than a decade after its founding in 1982, the society had already gained control of the process of vetting federal judicial appointees. By 2001 the Federalists were so dominant that George W. Bush simply eliminated the longstanding role in the evaluation of prospective judges by the resolutely centrist American Bar Association (ABA), whose ratings had long kept extremists and incompetents off the bench. Today the Federalists have more influence in judicial-selection than the ABA ever had.

The Federalist Society for Law and Public Policy Studies was begun by a small group of radically conservative University of Chicago law students--Steven Calabresi, David McIntosh and Lee Liberman Otis--who had been undergraduates together at Yale University. Harvard law student and future U.S. Sen. Spencer Abraham (R-Mich.), who started a Harvard University chapter, later joined them. Edwin Meese, who had been Ronald Reagan's attorney general, was an early sponsor.

Much of the society's leadership consists of formidable, active politicians (Utah's Republican Sen. Orrin Hatch is co-chair), important right-wing organizations (the American Enterprise Institute) and judicial voices (former Solicitor General Robert Bork and current Supreme Court Justice Antonin Scalia). Former Iran-Contra special prosecutor Lawrence Walsh wrote during the first Bush administration that he was especially troubled by one of White House Counsel C. Boyden Gray's assistant's open declaration that no one who was not a member of the Federalist Society had received a presidential judicial appointment from President George Bush Senior. In both Bush administrations, judicial appointments have been coordinated by the office of the counsel to the president, a staff composed nearly entirely of Federalists and their allies, people who consider Chief Justice William Rehnquist too moderate.

With seed money from the Institute for Educational Affairs (then headed by neoconservatives Irving Kristol and the late William E. Simon) and millions of dollars over the years from the Lynde and Harry Bradley, John M. Olin, Sarah Scaife, Charles Koch and Castle Rock foundations, the Federalist Society grew quickly. The Federalists targeted clerkships at the Supreme Court and appellate levels, recognizing the power of clerks to influence one another, justices, judges and the law itself. Calabresi went on to clerk for Bork and Scalia on the U.S. Court of Appeals for the District of Columbia Circuit, then worked at the White House and in the Department of Justice under Reagan and Bush Senior. McIntosh became a special assistant to then-Attorney General Meese and to President Reagan, and, later, a three-term congressman from Indiana who lost a race for governor. Otis became an assistant attorney general under Meese, then clerked for Scalia at the Supreme Court. And Abraham became a U.S. senator and is now the secretary of energy.

POWER POINTS

The society today includes cabinet members (Attorney General John Ashcroft and Interior Secretary Gale Norton), Solicitor General Theodore Olson, White House Counsel Alberto Gonzalez (in charge of passing on all judicial nominations before they are submitted to Congress) and five of 11 lawyers on his staff. Donald Paul Hodel, secretary of the interior and the Energy Department in the Reagan administration (and later the president of the Christian Coalition), is a board member. Several sitting Supreme Court justices have spoken under the auspices of the society, and other leading judges on the federal bench advise local chapters.

The society membership today includes more than 40,000 lawyers, federal and state circuit and trial judges, law professors, policy experts and business leaders in 60 Lawyers Division chapters nationwide. …

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