25 years ago, four law students — Lee Liberman (now Lee Otis), Spencer Abraham, David McIntosh, and Steven Calabresi — founded the Federalist Society. Their goal, in the words of their then faculty adviser Antonin Scalia, was to “plant a wild flower in the weeds of academic liberalism.” They faced considerable resistance, but with the help of academic heavyweights like Scalia and Robert Bork, they were able to plant that flower.
Soon, lawyers’ chapters began to spring up in major cities. Samuel Alito, then a young Justice Department lawyer, recalls running into a colleague at a luncheon meeting of the Washington, D.C. chapter. His colleague said, “this is like meeting a friend at a bordello.”
Just how far the Federalist Society has advanced since the bordello days was evident tonight at the gala 25th anniversary dinner at Union Station in Washington (I thank Mark Paoletta and the law firm of Dickstein Shapiro for hosting me at their table). More than 1,500 people attended. They included Justices Scalia, Thomas, and Alito (Chief Justice Roberts will deliver the Barbara K. Olson lecture tomorrow night).
President Bush gave the opening address (or warm up act, as master of ceremonies Ted Olson put it). Bush praised the Federalist Society and its transformation “from a student organization into a national institution.” He then launched a powerful attack on judicial activism. Judicial activists, the president observed, talk of a living Constitution, which to them is a Constitution that means whatever they want it to. But the Constitution lives because we respect its words and their wisdom.
Bush then turned his guns on the Senate for what it has done to the judicial confirmation process. This process, he argued, is not a license to ruin a person’s good name. When the Senate demands that judicial nominees promise to reach a particular outcome, “we lose something as a constitutional democracy.” So too when Senators talk about a nominee’s religious beliefs (Judge Pryor), or when the supposedly neutral American Bar Association changes its rating of a nominee in response to political pressure (Judge Kavanaugh), or when a nominee’s past decisions are grossly distorted to make him out to be a racist (Judge Southwick), or when a nominee’s wife is reduced to tears because Senators unfairly make the nominee out to be a bigot (Justice Alito). Bush warned that such attacks will cause some lawyers to decline the opportunity to serve as a judge, to the detriment of the federal bench.
Bush concluded on an optimistic note, however. He pointed out that thanks to the Federalist Society, a new generation of lawyers has found its way into the profession and into the corridors of power, and he urged that generation and its successors never to lose the sense of wonder it experienced upon first beholding the nation’s founding documents.
But why has the Federalist Society succeeded beyond the wildest dreams of its founders? Tonight, the best answers came from Justice Thomas and from the Society’s president Gene Meyer. For Thomas, the key is courage — beginning with the courage of the four founders to go against the grain of the academic environment in which they found themselves,
For Meyer, the key is intellectual integrity. He told the story of an interview in which the reporter asked him for the Federalist Society’s position on presidential power. Meyer explained that, while the Society’s members generally agree on certain broad principles, the Society doesn’t take positions on specific issues. The reporter then asked for the Federalist Society’s position on abortion. Meyer gave the same answer, and gave it again when the reporter asked about gun control. Finally, the exasperated reporter said, “you must take positions or you wouldn’t be so influential.”
But the Federalist Society is influential because it is not result oriented, but instead focuses on promoting broad principles, including fidelity to the written text of the Constitution, and vigorous debate. As Justice Alito put it, the Federalist Society stands for talking about the big issues and for the belief that rational debate will lead to good outcomes. More than anything else, the courage of that conviction explains why the wild flower Antonin Scalia thought he was helping to plant has become, in his words, an oak.
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“Arise and take our stand for freedom as in the olden time.” Winston Churchill