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: <http://www.pfaw.org/>,
the Alliance for Justice: <http://www.allianceforjustice.org/>
, and the American Civil Liberties Union: <http://www.aclu.org/>.
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.
