Second in a series of occasional articles
For years, small chapters of the Federalist Society met on college campuses trying to inject their conservative ideas into the mainstream of legal thought. Now, members of this once obscure group are emerging as intellectual forces in the Bush administration, pushing policy to the right on such issues as judicial appointments and environmental regulations.
Three Cabinet secretaries are active supporters of the Federalist Society -- John D. Ashcroft at Justice, Gale A. Norton at Interior and Spencer Abraham at Energy. Federalists also hold top legal positions throughout the administration, including solicitor general and at least three slots in the White House counsel's office.
Only a few months into the Bush presidency, these and other Federalist Society members are making their influence felt in a number of controversial subjects.
Bush, in announcing his plans to break a campaign pledge to regulate carbon dioxide, said he based his decision on "important new information" contained in a controversial and disputed Department of Energy report. That report had been requested by one of the founding members of the Federalist Society, David M. McIntosh, a former GOP representative from Indiana who lost a gubernatorial bid last year.
Another prominent Federalist, Princeton Prof. Robert George, who has chaired the society's Religious Liberties Executive Committee, was crucial in killing the bid of Montana Gov. Marc Racicot to become Bush's attorney general. George wrote a memorandum describing fears in the conservative religious community that Racicot was not sufficiently committed on such key issues as abortion and the defense of religious expression in schools and other facilities, according to sources.
Perhaps most significant, members of the society -- including Larry D. Thompson, the deputy attorney general -- are playing a central role in a 15-member special White House-Justice Department committee picking candidates to fill openings in the federal district and appeals courts. The Bush administration's decision to end the American Bar Association's central role in rating judicial candidates was a major Federalist victory. Since 1996, the society has published "ABA Watch," documenting the ABA's liberal stands on abortion, the death penalty and gun control.
Leaders of the Federalist Society describe their group as an intellectual forum for conservatives to encourage debate with the left on issues such as affirmative action, vouchers for private education and allowing religious expression in public facilities. They contend the organization takes no official positions, does not lobby, support or oppose nominations, and remains above the political and legislative fray.
But the numerous appointments of Federalist members and their success in influencing policy are testament to two decades of organizing and aggressive efforts to promote a conservative vision of the law and public policy.
Now, many members of the right say the Federalist Society has become a powerful force in Washington, gaining leverage not by the traditional route of lobbying but by nurturing a new generation of conservative lawyers who have joined with older conservatives in a determined bid to challenge the left in the courts, in Congress and now in administration policymaking.
"The society is one of the unsung successes of the Reagan years," said conservative activist Grover Norquist. "If Hillary Clinton had wanted to put some meat on her charge of a 'vast right-wing conspiracy,' she should have had a list of Federalist Society members and she could have spun a more convincing story."
The group's prominence has won praise as well as concern from some law professors. Jeffrey Rosen of George Washington Law School said the society "deserves credit for transforming the terms of the legal debate." It "created a path for smart, politically engaged conservative law students," he said. "If you join the Federalist Society, do well, get to know the right professors and clerk for the right judges, at a very early age you can be running the country."
But Rosen added that while calling for legal and judicial restraint, society members have supported the overturning of legislatures' decisions by the courts, the "opposite of judicial restraint," to achieve outcomes they desire on issues such as affirmative action or voting rights.
American University law professor Jamin Raskin said that although the society welcomes debates involving all points of view, its "political agenda [is] to completely undo the landmark civil rights and civil liberties decisions of the last half of the 20th century."
Established in 1982, the organization has chapters in 60 cities, along with student chapters at 150 of the nation's 182 accredited law schools. Major supporters include conservative foundations, including the John M. Olin Foundation ($376,000), the Sarah Scaife Foundation ($175,000) and the Lynde and Harry Bradley Foundation ($135,000).
Although the society does not take stands, its members are closely associated with conservative positions on some of the most controversial issues in law and politics. In court cases, books and speeches, prominent members of the society have argued:
* That affirmative action policies amount to unconstitutional discrimination against whites.
* That the "takings" provision of the Constitution's Fifth Amendment -- "nor shall private property be taken for public use, without just compensation" -- places in legal jeopardy much of the state, federal and local regulatory system, from zoning laws to workers' compensation.
* That punitive damages assessed by juries amount to "a capricious, unpredictable, randomly destructive scheme of punishment."
* That workplace anti-harassment laws amount to "stealth statutes that consistently trump free-speech rights."
In its mission statement, the Federalist Society calls for a sustained challenge to the "orthodox liberal ideology which advocates a centralized and uniform society."
As "conservatives and libertarians interested in the current state of the legal order," the society "is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be."
Eugene Meyer, the society's executive director, said the contrast between the neutrality of the organization on major issues and the active role of its members and supporters in setting a firmly conservative public agenda "is a little bit confusing." Meyer stressed: "We are not a position-taking organization; we really are interested in discussion and in getting ideas heard."
But as the Federalist Society's influence grows, it is coming under attack from liberal groups.
Ralph G. Neas, president of People For the American Way, has warned that "the White House counsel's office and the Department of Justice are being turned over to Federalist Society lawyers -- a bastion of far-right legal thought."
Meyer dismissed such criticisms. The extensive presence of Federalist Society members in all branches of government, he said, means that "a lot of our people are very active, we encourage them to be very active, we actively urge them to play their full role as citizens, and that certainly does mean government service, working hard for the ideas they believe in."