By Robert Barnes
Washington Post Staff Writer
Friday, November 16, 2007
With 1,800 members crowding Union Station, the president of the United States on the dais and four Supreme Court justices singing its praises, last night might have marked the time for the Federalist Society to officially surrender its underdog persona.
Founded in 1982 as a debating organization for conservative law students who said they were frustrated by prevailing liberal orthodoxy, the group celebrated its 25th anniversary with a black-tie dinner and a bracing message from President Bush about the group's twin passions: interpreting the Constitution as the founders wrote it and promoting conservatives to the federal bench.
Bush criticized the Democratic-run Senate, saying it is abusing its duty to confirm judicial nominees by rejecting or leaving in limbo those who will not "guarantee specific outcomes."
"Senate confirmation is part of the Constitution's system of checks and balances. But it was never intended to be a license to ruin the good name that a nominee has worked a lifetime to build," Bush said. "Today, good men and women nominated to the federal bench are finding that inside the Beltway, too many interpret 'advise and consent' to mean 'search and destroy.' "
Democrats quickly fired back that they have moved more expeditiously on approving Bush's nominees than did the Senate when Republicans were in control.
Former solicitor general Theodore B. Olson was the master of ceremonies last night, and he called the turnout in the train station's candlelit great hall "a miracle." He poked fun at liberals' notion of a shadowy right-wing organization by welcoming the crowd to an "intimate, clandestine gathering of the secret Federalist Society."
Signs of the group's prominence were just beyond the president's podium. Justice Samuel A. Alito Jr. is a longtime member so loyal and active in the organization that Executive Vice President Leonard Leo joked in an interview that Alito is always "ahead of his dues payment."
Alito was joined at the dinner by fellow justices Antonin Scalia, who years ago was a faculty adviser to a fledgling campus chapter at the University of Chicago, and Clarence Thomas, who received a rapturous reception from the group earlier in the day when where he sold and spoke about his new book, "My Grandfather's Son." (Chief Justice John G. Roberts Jr. appeared in a video tribute, and is scheduled to address the organization today.)
Steven G. Calabresi, a Northwestern University law professor who was one of the founders of the group, said its growth to more than 40,000 members, with chapters in every state and at virtually every major law school, "is beyond our wildest dreams." He and others insist that the group's most important work is debating ideas of legal analysis unpopular with what they say is still an overwhelmingly liberal legal academia.
Thomas said yesterday that the group is challenging "the monopoly of certain organizations and certain groups and media types" who for too long dominated legal debate.
"There would be no need for the Federalist Society if the dominant organizations had allowed open debate, open discussion, did not take hard positions and become so ideologically closed that you couldn't talk anymore," he said, without naming names.
But the group has become so successful in promoting its ideas -- and in seeding the Republican administration and the federal bench with its members -- that liberals in 2001 formed the American Constitution Society for Law and Policy to be its counterpart on college campuses and in the legal community.
Central to the Federalist Society is the concept of originalism, the view that the Constitution is a document with a fixed and knowable meaning, rather than one whose principles adjust to contemporary times.
Scalia and Thomas are the idea's most prominent adherents, but Scalia wrote in a new book the organization published this year that while he and Thomas have put originalism "in the game," it "would be foolish to pretend that that philosophy has become (as it once was) the dominant mode of interpretation in the courts, or even that it is the irresistible wave of the future."
Scalia said courts and law schools embrace the alternate view of a "living Constitution" and so too does the ordinary citizen, "who has come to believe that what he violently abhors must be unconstitutional."
"It is no easy task to wean the public, the professoriate and (especially) the judiciary away from such a seductive and judge-empowering philosophy," he said.
There was no argument from the president, however. "In practice, a living Constitution means whatever these activists want it to mean," Bush said. "They forgot that our Constitution lives because we respect it enough to adhere to its words."
Such a view is the group's "mission," Calabresi said, and he and Leo point out that the group does not bring lawsuits, lobby, take positions or endorse nominees. But some of the society's most prominent members are part of a growing network of conservative legal groups that do all those things. And Leo took a leave from the group to work with the White House on judicial nominees.
Sen. Richard J. Durbin (D-Ill.) has been a particular critic of the society, saying that for the Bush administration, knowing the "secret handshake" is the most important qualification a judicial hopeful can have.
Other liberals are more than grudging admirers of the group's success. Nadine Strossen, president of the American Civil Liberties Union, said she has probably spoken at Federalist Society events more than at any other organization's except her own. She enjoys "not just preaching to the choir," she said, and finds the debates open and serious.
She said she does not understand, though, with all the group's success, why it is "still kind of whining about Yale Law School and Hillary Clinton."
Liberal law professors might still be writing the law review articles, she said, but conservatives are writing the laws.