THE AMERICAN PROSPECT, Vol. 14, Issue 3, March 1, 2003
Title: “A Hostile Takeover: How the Federalist Society is Capturing the Federal Courts”
Author: Martin Garbus
Title: “Courts Vs. Citizens”
Author: Jamin Raskin
Faculty Evaluator: Barbara Bloom, Ph.D., Tony White, Ph.D.
Student Researcher: Liz Medley
In 2001 George W. Bush eliminated the longstanding role of the American Bar Association (ABA) in the evaluation of prospective federal judges. ABA’s judicial ratings had long kept extremists from the right and left, off the bench. In its place, Bush has been using The Federalist Society for Law and Public Policy Studies-a national organization whose mission is to advance a conservative agenda by moving the country’s legal system to the right.
The Federalist Society was started in 1982 by a small group of radically conservative University of Chicago law students-Steven Calabresi, David McIntosh, and Lee Liberman Otis. Reagan’s Attorney General Edwin Meese was an early sponsor of the society. The society today includes over 40,000 lawyers, judges, and law professors. Well-known members include: John Ashcroft, Solicitor General Theodore Olson, Supreme Court Justices Clarence Thomas and Antonin Scalia, Senate Judiciary Committee Chairman Orrin Hatch, and Federal Appellate Judge Frank Easterbrook. Under both Bush Administrations, ‘judicial appointments have been coordinated by the office of the [legal] counsel to the president.” The counsel’s staff is comprised mainly of federalists.
Jamin B. Raskin writes that traditional concerns about conservative judges are that they will fail to “protect the rights of political minorities from an attack by an overzealous majority.” Raskin says the concern is now the opposite. These judges are a political minority undermining the “democratic rights of the people.”
With the help of the Federalist Society, Bush has the capability to turn the courts over to ultra right-wing ideologues. The Federalists intend to control all Federal circuit courts, which will be devoted to fulfilling the radical right’s agenda on race, religion, class, money, morality, abortion, and power. Currently, anti-abortion judges control seven of the twelve federal circuit courts.
Federal judges enjoy lifetime appointments, and approximately 40 percent of Bush appointees are members of the Federalist Society. The federal circuit courts are the spawning ground for Supreme Court nominees and some of these judges will be given this highest of judicial nominations. In an attempt to ensure a continuation of a conservative agenda, Bush is appointing younger judges. Justice Scalia, who was fifty years old when appointed to the Supreme Court, has already served for 17 years. There has not been a vacancy on the Court for the past 11 years.
The Federalist Society which heads this conservative judicial movement has been very aggressive in attacking judges they do not agree with. Former Senator Bob Dole spoke out against 3rd Circuit Judge H. Lee Sarokin, placing him in a judicial “hall of shame” along with some of his colleagues. This hostility forced Sarokin to resign. “I see my life’s work and reputation being disparaged on an almost daily basis, and I find myself unable to ignore it.”
One of the legal theories the Federalists are now operating under could make many federal regulations unconstitutional. Federalist Society publications, strategy sessions, and panel discussions attack cases that place individual rights above property rights, agencies that regulate business, and judges who seek to expand federal civil-rights laws and gender-equality protections. The Federalist Society sponsors “practice groups” to shape their policy. They have organized groups in areas such as, religious liberty, national security, cyberspace, corporate law, and environmental law.
UPDATE BY MARTIN GARBUS: One of the most important issues in the country is the control of one of the three branches of government, the judiciary. While Presidents and Congressmen get elected every few years, judicial appointments are for life, and some federal court appointments have gone from 40 to 50 years. Our courts deal with nearly every aspect of our life; work conditions and wages, schools, civil rights, affirmative action, crime and punishment, abortion and the environment, amongst others.
Since the publication of my article, Bush tried to force through the most conservative group of nominees ever submitted by a President. He succeeded at times, but other appointments were rejected or stalled. Bush retaliated by making appointments while Congress was not in session. On May 18, 2004, a disastrous agreement was approved – Bush agreed not to make further recess appointments and the Democrats agreed to let Bush have 25 “free” appointments.
There will, of course, be future books and articles about this subject. My book, “Courting Disaster,” is one of them. It examines the Court from 1980 to the present. The best websites are those maintained by People for the American Way: , the Alliance for Justice: , and the American Civil Liberties Union: . The sole focus of the Alliance for Justice is to try and stop extreme conservative judicial nominations.
The article and the book in which it appeared, drew a great deal of attention. One of the results was that I had a series of four debates with Ken Starr, the former Independent Prosecutor, on this and a number of other issues. I also did a good deal of television, radio and other public speaking on the issue of judicial appointments.