Federalist Society

  • December 6, 2013
    BookTalk
    The Federalist Society
    How Conservatives Took the Law Back from Liberals
    By: 
    Michael Avery and Danielle McLaughlin

    by Michael Avery and Danielle McLaughlin. Mr. Avery is Professor of Law and Director of Litigation at Suffolk University Law School. Ms. McLaughlin is an associate at Nixon Peabody.

    In mid-November the Democrats finally exercised the so-called “nuclear option,” barring filibusters for all votes on judicial appointments in the Senate, other than for Supreme Court Justices. The change in the Senate Rules followed the Republican filibuster of three of President Obama’s nominees for the very conservative D.C. Circuit Court of Appeals and the radical increase in opposition to presidential judicial choices by Republicans since 2009. According to Harry Reid, almost half of the filibusters of presidential judicial nominations in our Nation’s history have been used against President Obama’s selections. The rules change will allow a simple majority of senators present and voting to approve presidential nominees to the federal bench and eliminate the 60-vote supermajority required to overcome a filibuster.

    Right-wing ideologues have been successful since the 1980 election of President Reagan in securing judicial appointments for conservatives during Republican presidencies. Ed Meese, the Reagan Attorney General and now elder statesman of the conservative legal movement, said that “no President exercises any power more far reaching, more likely to influence his legacy, than the selection of federal judges.” The Federalist Society, whose founders were mentored by Meese in the Reagan White House and Department of Justice, has always believed that the easiest way to change the law is to change the judges. We document their success in doing so at all levels of the federal judiciary in our book, The Federalist Society: How Conservatives Took the Law Back from Liberals. Federalist Society members are just as active with respect to judicial selection when a Democrat is president as they are when a Republican is in the White House. For example, in 2010, the Judicial Confirmation Network, formed to promote George W. Bush’s judicial nominations, simply changed its name to the Judicial Crisis Network (JCN), once President Obama began nominating judges. The leadership of the group remained in the hands of key Federalist Society members and it lobbied actively against the president’s appointments.

  • October 7, 2013

    by Jeremy Leaming

    Former Attorney General Edwin Meese III is frequently credited with helping to pack the federal bench with judges that adhere to strict construction or orignalism, a method of trying to interpret today’s legal controversies through the lens of the Constitution’s framers.

    The Federalist Society notes Meese via his work at the right-wing Heritage Foundation, “counseled White House staffers, Justice Department officials and Senate Judiciary Committee members about the importance of filling judicial vacancies with people committed to interpreting the Constitution according to its original meanings.”

    Meese a member of the Federalist Society’s Board of Directors, has also been instrumental in the shutdown of the federal government over the 2010 landmark health care law, the Affordable Care Act. In an extensive piece for The New York Times, Sheryl Gay Stolberg and Mike Mcintire note that he helped launch a “loose-knit coalition of conservative activists” early in Obama’s second term to craft a new push to “repeal” the Affordable Care Act.

    “It articulated a take-no-prisoners legislative strategy that has long percolated in conservative circles: that Republicans could derail the health care overhaul if conservative lawmakers were willing to push fellow Republicans – including their cautious leaders – into cutting off financing for the entire federal government.”

    The Meese coalition created a defunding “tool kit” with talking points saying it “simply is calling to fund the entire government except for the Affordable Care Act/Obamacare.”

    Meese, as the newspaper notes, also helped launch a group, the Conservative Action Project (CAP) to peddle the defunding plan. Its “welcome friends!” message says President Obama “is trying to remake our government and economy into the image of today’s European social welfare state.”  

    Groups like the Heritage Foundation, where Meese is the Ronald Reagan Chair in Public Policy, and the billionaire Koch brothers have also been involved in pushing the defunding campaign, which has led to the shutdown.

    As noted here, scholars and prominent commentators have blasted the strategy as undermining and endangering democratic processes. The Affordable Care Act became law after extensive debate in Congress, survived a constitutional challenge by lawmakers, and the House’s outlandish number of votes to repeal the law have been for naught. And yes, as The Dish’s Andrew Sullivan noted, the American electorate spoke clearly in 2012 when Obama won a second term in strong fashion.

  • June 5, 2013

    by Jeremy Leaming

    The federal appeals court judge under an ethics investigation for allegedly making racist comments at a Federalist Society event has been building a rather tawdry track record on and off the bench. The ethics complaint lodged by civil rights groups against Judge Edith H. Jones of the U.S. Court of Appeals for Fifth Circuit has become somewhat high-profile thanks to coverage from The New York Times.

    But Nicole Flatow and Ian Millhiser of ThinkProgress add to the story. First Flatow notes that Jones, appointed to the bench by President Ronald Reagan, “is known for her hostile and discriminatory comments.” Flatow continues that Jones “erupted at one of her fellow judges during oral argument in 2011, and told him to ‘shut up’ while asking him to leave the courtroom.” Flatow also notes Jones (pictured) wrote an opinion arguing for dismissal of a woman’s sexual harassment lawsuit. It was not enough that the woman’s male co-workers repeatedly groped and grabbed her and plied her locker with pornographic pictures. The woman’s supervisor dismissed her complaints and Judge Jones argued for the same thing to be done. Fortunately her opinion was in dissent. Nonetheless that dissent suggests Jones harbors an incredibly callous or cynical view of sexual harassment charges.

    Millhiser in a separate post expounds on Jones’ ethically suspect behavior and wobbly jurisprudence. Millhiser writes that Jones “joined an opinion holding that a capital defendant could be executed despite the fact that his lawyer slept through much of his trial. Though that opinion was eventually reversed by the full Fifth Circuit, Jones dissented from that reversal.”

    The Texas Civil Rights Project, Austin NAACP, the League of United Latin American Citizens and Mexican Capital Legal Assistance Program lodged the ethics complaint against Jones arguing that her comments at a Federalist Society event at the University of Pennsylvania School of Law violated the Judicial Conduct & Disability Act. That code of conduct, in part, requires judges to remain impartial.

    The event was not recorded, according to the law school, but the complaint includes affidavits from members of the gathering. The Times’ Ethan Bronner reports that the groups’ complaint says Jones declared, “racial groups like African-Americans and Hispanics are predisposed to crime.”

    When prodded on that comment by a lawyer in the audience, Jones allegedly added that blacks and Latinos “get involved in more violent crime.”

    Jones, the complaint alleges, expressed incredibly base comments about death penalty defenses. Most of them, such as claims of racism, are “red herrings,” The Times reports. According to the newspaper witnesses added that the judge maintained “Mexicans would prefer to be on death row in the United States than in prison in Mexico.”

  • December 13, 2012

    by Jeremy Leaming

    With Republicans seemingly hell-bent on tossing the country over the so-called fiscal cliff, showing no signs of agreeing to tax hikes on the nation’s superrich, and continuing their strategy of obstructionism polling shows that a majority of Americans support filibuster reform.

    Sen. Minority Leader Mitch McConnell (R-K.Y.) embraced obstructionism during President Obama’s first term, saying his party’s top priority was to ensure Obama did not serve a second one. McConnell, however, is still set on obstructionism and not surprisingly arguing that the Constitution forbids the Senate from altering its procedures by majority vote.

    A bipartisan group of law professors – including former Reagan solicitor general Charles Fried and a former conservative federal judge Michael W. McConnell – in a Dec. 12 letter to senators says McConnell is wrong. (The letter can be read here – thanks to the Brennan Center For Justice).

    “When a newly-elected Congress convenes,” the letter states, “the newly-constituted Senate, like the newly-elected House, can invoke its constitutional rulemaking authority to make changes to the Standing Rules. At that time, a majority of the new Senate can choose to reject or amend an existing rule.”

  • December 5, 2012

    by Jeremy Leaming

    Filibuster reform is needed because Senate Republicans have gone over a cliff of some sort, using the tool in an unprecedented manner to thwart consideration of significant legislation and, of course, scuttle or delay some judicial nominations.

    At People For Blog, Paul nails Sen. Chuck Grassley (R-Iowa) for his wildly misleading blather about the filibuster. Pointing to Grassley’s Dec. 3 statement on supposedly “setting the record straight” on consideration of judicial nominations during lame-duck sessions, Paul notes that the senator avoided the “topic completely,” and instead crowed about his party’s generosity for voting on at least one nominee during the lame-duck Congress. Grassley claimed in his statement that it is rare for the Senate to confirm judges during lame-duck sessions in presidential election years. “Republicans have been more than fair to this President and his judicial nominations,” Grassley’s statement reads.

    Beyond misleading, Grassley’s statement is disingenuous. Senate Republicans have been anything but generous to President Obama. Instead they have used the threat of filibuster and other delaying tactics to slow the pace of confirmations. Their actions have led to a federal bench with more than 80 vacancies, many of them considered judicial emergencies. (See JudicialNominations.org for more on the crisis surrounding the federal courts.)  

    The blockade of judges, as Paul notes, has also created “a huge backlog” of nominees to confirm. This week the Senate has confirmed two of the 19 nominations left pending when it recessed in August for campaigning. The Senate confirmed Paul Grimm, for a seat on the district court in Maryland and Michael P. Shea for a district court seat in Connecticut. Both nominees cleared the Senate Judiciary Committee months ago. That means up-or-down votes on those nominees and the 17 others in a functioning Senate should have occurred months ago. Republicans, however, may have wanted to stall those nominations in hopes that their party would capture the White House and fill the vacancies with right-wing judges.