WASHINGTON — With the nomination of Judge John G. Roberts Jr. to the Supreme Court by President George W. Bush, Democrats and liberals — usually one and the same — are again fastening their attention on a national organization composed mainly of libertarian conservative lawyers and judges called the Federalist Society. The Society is not open solely to adepts of the law. Others too can join. I myself have been a member in good standing for some years and can report that the Society exerts no secret demands on its members. I have not had to learn any secret handshake or attend late night meetings in any sacred groves. We learn no mumbo jumbo save for the usual legal terms known by many Americans, for instance, malum prohibitum, quid pro quo, dormio ergo sum.
Nonetheless the Federalist Society fetches Democrats’ curiosity and occasional indignation. Says Professor Erwin Chemerinsky of the Duke Law School, “I only want the left to have its own Federalist Society.” He is a man of the left, and I hope his aspirations will be realized. Such groups are vital to the life of the mind and to the commonweal, whether they adopt secret handshakes or wear funny hats as do the Shriners and the Elks.
The matter of the handshake has proved to be a particular sudorific for Democrats, along with the frequent incidence of Federalist Society members among the President’s appointees to the judiciary. Applying his stethoscope to Judge Roberts, the Hon. Richard J. Durbin, Democratic Minority Whip has observed, “As we try to monitor the legal DNA of President Bush’s nominees, we find repeatedly the Federalist Society chromosome” — another of the Hon. Durbin’s literary flights! “Why is it,” he asks, “that membership in the Federalist Society has become the secret handshake of the Bush nominees…?” I repeat; there is no handshake. What there is is an intelligent interest in the law.
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. Professor Chemerinsky and Senator 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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