Conservative Federalist Society Can Expect Its Status to Shrink

Justice Samuel A. Alito Jr., left, and Chief Justice John G. Roberts Jr. did not get Supreme Court confirmation votes from President-elect Barack Obama.
Justice Samuel A. Alito Jr., left, and Chief Justice John G. Roberts Jr. did not get Supreme Court confirmation votes from President-elect Barack Obama. (By Lucian Perkins -- The Washington Post)
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By Robert Barnes
Washington Post Staff Writer
Friday, November 21, 2008

Last year, there was a candlelight dinner at sold-out, shut-down Union Station to celebrate the 25th anniversary of the Federalist Society, with President Bush on stage and three Supreme Court justices in the audience.

This year, it's "welcome to the wilderness," as a former Clinton administration appointee good-naturedly told the group of lawyers yesterday at its annual meeting. William P. Marshall, a former deputy White House counsel for President Bill Clinton who teaches law at the University of North Carolina at Chapel Hill, promised to share survival tips after his party's eight-year absence from power.

During that time, the conservative legal organization served as a catalyst for Bush's efforts to change the federal judiciary. But the group now finds itself sorting through the role it should play in scrutinizing President-elect Barack Obama's forthcoming efforts to bring about a similar change of his own.

Senate Minority Leader Mitch McConnell (R-Ky.) warned that although Obama campaigned during the general election as a moderate, McConnell expects any judicial appointments to be from the far left.

Obama has "some very unorthodox views about the nominating and confirmation of federal judges," McConnell said, noting that as a senator from Illinois, Obama voted against the confirmation of two of the group's icons: Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr.

Federalist Society executive vice president Leonard A. Leo laughed when asked about the wilderness remark, saying, "I know the media likes to talk about us in terms of power and influence." But he said the group's primary goal has always been discussion of legal interpretation and limited constitutional government, and that that "remains as important as it was on November 3rd."

The organization has always believed that the promotion of judges who share its conservative views is the most lasting way to enshrine its principles, and it has been extremely successful. The liberal Alliance for Justice estimates that 46 percent of Bush's appointments have ties to the Federalist Society.

At one of the group's events last month, Bush bragged that he has appointed more than a third of the federal judiciary that will be in place when he leaves office. While he has appointed slightly fewer appeals court judges than Clinton -- 61 to 65 -- Bush's mostly young appointees will soon make up nearly two-thirds of the judges at that level, and Republican-appointed judges are in the majority on 10 of the 13 circuits.

Soon, it will be Obama's turn. He will immediately be presented with 15 circuit court vacancies, and there is a good chance that Congress will soon approve 14 new judgeships at the circuit level. Russell Wheeler, a scholar at the Brookings Institution, estimates that at the end of four years, Obama will have had the chance to increase the proportion of Democratic-appointed judges overall to nearly 60 percent.

McConnell and other speakers at the event were wary of Obama, who taught constitutional law at the University of Chicago and has talked about the intangibles that should go into choosing a judge. In particular, they recoil at a quote from Obama in a speech to Planned Parenthood in the summer of 2007.

"We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom," Obama said then. "The empathy to understand what it's like to be poor, or African American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

Said McConnell: "If President Obama's top criterion in selecting nominees is 'empathy,' then the burden will be on them to demonstrate that their political views do not trump their even-handed reading of the law."

Obama's defenders have said he was not suggesting judges put aside the law.

How contentious a role Republican senators and legal activists want in opposing Obama nominees, though, is itself controversial. Republicans have sharply criticized the way Democratic senators have treated Bush nominees, while Democrats contend that Republican senators started it when Clinton was president.

William K. Kelley, an associate professor of law at Notre Dame and a former deputy counsel to Bush, recommended detente to society members. "My own view is that Republicans ought not to escalate," he said.

But he had sobering words for the group that has recently seen its own elevated to the Supreme Court. If and when Obama has a chance to make an appointment, Kelley said, he will be able to place there "whomever he wants."

"That's what 58 or 59 votes in the Senate does for you," said Kelley, referring to the size of the Democratic caucus in the 100-member body.

© 2008 The Washington Post Company