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 — again fasten their attention on a national organization 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 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 other Americans — for instance, malum prohibitum, quid pro quo, dormio ergo sum.
Nonetheless, the Federalist Society fetches Democrats’ curiosity and occasional indignation. Professor Erwin Chemerinsky of Duke Law School says, “I only want the left to have its own Federalist Society.” He is of the left, and I hope his aspirations are realized. Such groups are vital to the life of the mind and to the commonwealth, whether they adopt secret handshakes or wear funny hats like the Shriners and the Elks.
The handshake has proved a particular sudorific for Democrats along with the frequent appearance of Federalist Society members among the president’s judicial appointees.
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. There is is an intelligent interest in the law.
Since its beginning in 1982, the Federalist Society, a discussion group focusing on the law and promoting certain principles of judicial behavior, has grown to include more than 25,000. Professor Chemerinsky and Sen. Durbin are welcome to join.
The reason for the group’s growth is 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 meets 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 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 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 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 no assault on democratic foundations.
At the Federalist Society, there is mainly an ongoing debate on the law and the role of courts. All Society members believe the courts, as 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 involved 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 will be so long as they propound unintelligent ideas. That is my idealistic belief. Just call me a progressive.
R. Emmett Tyrrell Jr. is founder and editor in chief of The American Spectator, a contributing editor to the New York Sun, and an adjunct scholar at the Hudson Institute. His latest book is “Madame Hillary: The Dark Road to the White House.”