Since its beginning in 1982, the Federalist Society, a discussion group devoted to speculating on the law and promoting certain principles of judicial behavior, has grown to include more than 25,000 members. Prof. Chemerinsky and Sen. Durbin are welcome to join. The reason for the group's growth is to be found in one of my few idealistic beliefs, to wit, intelligent minds yearn for intelligent thought. Years ago, many of the "best and the brightest" were on the left, and there, one would find intelligent advocacy of at least plausible positions. Now, there does not seem to be a great deal of intelligence on the left, only anger and name-calling. In part this is because the so-called liberal is immersed in identity politics often solely to pursue power.
Any dissent from the liberal orthodoxy is greeted with indignation. The dissenter's motives are always called into question. In the Federalist Society there is a serious regard for the law and how a law might square with the Constitution. There is a sense that judicial restraint must be practiced. If the law does not conflict with the Constitution, it is not a judge's role to change the law. This, the liberal calls judicial activism, but of course it is not activism. It is restraint.
Much of the criticism of the Federalist Society issues from what historians since the 1950s have recognized as "the paranoid style" of politics, seeing opponents as conspirators, not simply opponents. One so-called liberal group, the Institute for Democracy Studies, has claimed that the Federalist Society is part of "the infrastructure underlying the right-wing assault on the democratic foundations of our legal system." Yet there is no "infrastructure" and there is no assault on democratic foundations. At the Federalist Society there is mainly an ongoing debate on the law and the role of courts. All members of the Society believe that the courts, being the least democratic of our branches of government, must not gain preponderate influence over the elected branches, the presidency and the legislature.
If any people in the debate are anti-democratic, it is those who denounce opponents as conspirators and advocate a judiciary superior to elected officials. Thankfully, they are in the minority, and they will remain in the minority so long as they propound unintelligent ideas. That is my idealistic belief. Just call me a progressive.
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