Tuning Up For the War of the Federal Judiciary

Posted: Apr 24, 2001 12:00 AM
Away in the woods can be heard the boom-lay, boom-lay-boom of drums, pounding out laconic warnings. Beware: they come -- people who would take over our federal judiciary come -- many people -- rouse the village, spread the word. Don't worry, fellows. They're doing it already: big stories in the Washington Post and New York Times, telling strange tales of lawyers and judges who believe in a government of laws, not men. Telling of the Federalist Society. "Only a few months into the Bush presidency," the Post writes (same day as the Times), "Federalist Society members are making their influence felt (on) a number of controversial subjects." They "promote a conservative vision of the law and public policy." And don't forget Attorney General John Ashcroft -- he supports the Federalists. Both stories quoted the irrepressible Ralph Neas, president of People for the American Way, who calls the society "a bastion of far-right legal thought." Boom-lay, boom-lay, boom-lay ... Now we have to understand what goes on here. But before we do, I must declare my interest. I am a known associate of Federalist Society members, as well as an advisor to their Dallas Lawyers Chapter. Under Federalist Society auspices, I have addressed students at Stanford Law School, Dickinson College, etc., etc., OK? You ask why I would do this. I answer: Because I like my laws straightforward and plain; written by lawmakers; unsliced, untoasted, unbuttered by judges. The way of federal courts in the latter half of the 20th century was to contrive imaginative means by which the law could be "updated" -- made more relevant for a new day. Not all the jurists who so contrived were imps of Satan; perhaps none were. Most imagined themselves to be walking in the shoes of the founding fathers, which is the problem. The fathers left us a way to update their work. It is called the amendment process. We have used it 27 times, most recently in 1992. Back to the Federalist Society. Founded in 1982, with 25,000 members -- including, if you please, women and minorities -- it promotes civil and open discussion of constitutional law and constitutional issues. You needn't be one of Ralph Neas' "far-right" types to join; you need only love the Constitution. For all I know, Neas may meet that particular qualification. The "Federalist" name owes its parentage to that subversive, underground publication, The Federalist Papers. Federalism, as a constitutional principle, presupposes delicate balance: between states and the national government, and among the three branches of national government. All this, so justice truly can reign, rather than hang on the whims of the powerful and well-connected. But such a commitment doesn't earn you spreads in two powerful newspapers on the same day. In due course, Bush's judicial appointments commence. Even the Supreme Court, as a follow-up Times story indicated, could produce a vacancy soon, and a knock-down, drag-out for control of the court. The administration has said it no longer will ask the club-chair liberals of the American Bar Association to vet judicial nominees. So, boom-lay, boom-lay -- BOOM! The Federalist Society will choose our judges, stuff a bunch of right-wing nuts down our throats, and take away "reproductive rights." Expect to hear it from the left. But don't believe it. I wouldn't mention it now but for those drums. The Ashcroft hearings reminded us that the variety of leadership some liberal senators would stuff down our throats, if they could, would gag the authors of the Federalist Papers. I think we can expect some dirty pool when hearings begin, some outraged display of red herrings. The Federalist Society, dignified intellectual group that it is, doesn't exist to stuff anything down our throats. Nonetheless, I am bound to say that its principles, if digested widely enough, would do more than almost anything else I can think of for the renewal of the American spirit.