[Congressional Record Volume 148, Number 104 (Friday, July 26, 2002)]
[Senate]
[Pages S7421-S7422]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          THE FEDERALIST SOCIETY: SETTING THE RECORD STRAIGHT

  Mr. HATCH. Mr. President, I also take this opportunity today to right 
a wrong. Over the past 2 years, members of The Federalist Society have 
been much maligned by some of my Democrat colleagues, no doubt because 
they see political advantage in doing so. The Federalist Society has 
even been presented as an 'evil cabal' of conservative lawyers. Its 
members have been subjected to questions which remind one of the 
McCarthy hearings of the early 1950's. Detractors have painted a 
picture which is surreal, twisted and untrue.
  The truth is that liberal orthodoxies reign rampant and often 
unchecked in a majority of this countries law schools and in the legal 
profession, and that the left is shocked that an association of 
constitutionalist lawyers would exist, much less include the notable 
legal minds it does.
  During the mid-1990's, Professor James Lindgren of Northwestern 
University Law School conducted a survey of law school professors and 
came to the fallowing conclusion. At the faculties of the top 100 law 
schools 80 percent of law professors were Democrats, or leaned left, 
and only 13 percent were Republicans, or leaned right. These liberal 
professors promulgate their ideology in and outside the classroom.
  Anyone associated with America's campuses or law schools knows that 
nonliberal views are regularly stifled and those espousing those views 
are often publicly shunned and ridiculed. It was this environment of 
hostility to freedom of expression and the exchange of ideas in 
universities that set the stage for the formation of the Federalist 
Society. And given my Democrat colleagues' reaction to the Society, it 
appears to be fighting against liberal narrow-mindedness still.
  In 1982, the Federalist Society was organized, not to foster any 
political agenda, but to encourage debate and public discourse on 
social and legal issues. Over the past 20 years the Federalist Society 
has accomplished just that. It has served to open the channels of 
discourse and debate in many of America's law schools.
  The Federalist Society espouses no official dogma. Its members share 
acceptance of three universal ideas: 1. that government's essential 
purpose is the preservation of freedom; 2. that our Constitution 
embraces and requires separation of governmental powers; and 3. that 
judges should interpret the law, not write it.
  For the vast majority of Americans, these are not controversial 
issues. Rather, they are basic Constitutional assertions that are 
essential to the survival of our republic. They are truths that have 
united Americans for more than two centuries. Recently we have seen the 
emergence of some groups that seek to undermine the third of these 
ideas--that judges should not write laws. These groups have attempted 
to use the judiciary to circumvent the democratic process and impose 
their minority views on the American people.
  This judicial activism is a nefarious practice that seeks to 
undermine the principle of democratic rule. It results in an unelected 
oligarchy, government by a small elite. Judicial activism imposes the 
will of a small group of politicized lawyers upon the American people 
and undermines the work of the people's representatives.
  Indeed, if the radical left is successful, if we continue to appoint 
judges that are committed to writing law and not interpreting it, than 
all of us can just go home. We can resign ourselves to live under the 
oligarchical rule of lawyers. I happen to know a few lawyers, and 
please trust me when I say, this is not a good idea.
  Beyond acceptance to its three key ideas, freedom, separation of 
powers, and that judges should not write laws, it is challenging, if 
not impossible, to find consensus among Federalist Society members. Its 
members hold a wide array of differing views. They are so diverse that 
it is impossible to describe a Federalist Society philosophy.
  The assertion that members are ideological carbon copies of each 
other is ludicrous. The Society revels in open, thoughtful, and 
rigorous debate on all issues. It rests on the premise that public 
policy and social issues should not be accepted as part of a party-line 
but rather warrant much thought and dialogue. Any organization that 
sponsors debate on issues of public importance, as opposed to self-
serving indoctrination, is healthy for us all.
  Now, how does the Federalist Society accomplish its goal? Not by 
lobbying Congress, writing amicus briefs, or issuing press releases. 
The Federalist Society seeks only to sponsor fair, serious, and open 
debate about the need to enhance individual freedom and the role of the 
courts in saying what the law is rather than what it should be. The 
Society believes that debate is the best way to ensure that legal 
principles that have not been the subject of sufficient attention for 
the past several decades receive a fair hearing.
  The Federalist Society's commitment to fair and open debate can be 
seen by a small sampling of some participants in its meetings and 
symposiums. They have included scores of liberals like Justices Ruth 
Bader Ginsburg and Stephen Bryer, Michael Dukakis, Barney Frank, Abner 
Mikva, Alan Dershowitz, Laurence Tribe, Steve Shapiro, Christopher 
Hitchins and Ralph Nader, just to name a few.
  I would like to include for the Record a list of 60 participants in 
Federalist Society events that demonstrates the remarkable diversity of 
thought of Federalist Society events. One of them is Nadine Strossen, 
President of the ACLU, who has participated in Federalist Society 
functions regularly and constantly since its founding. She has praised 
its fundamental principle of individual liberty, its high-profile on 
law school campuses, and its intellectual diversity, noting that there 
is frequently strenuous disagreement among members about the role of 
the courts. Strossen has even said that she cannot draw any firm 
conclusion about a potential judicial nominee's views based on the fact 
that he is a Federalist Society member.
  It seems to me that an organization that includes such a wide array 
of opinion serves this nation well and does not deserve the 
vilification it gets from the usual suspects.
  There are many notable conservatives that also affiliate with the 
Federalist Society. But as the members of the Senate demonstrate, even 
amongst those that are often labeled ``conservatives'' there is a much 
disagreement on most social and political issues. Some often portray 
the Federalist Society as a tightly-knit, well-organized coalition of 
conservative lawyers who are united by their right-wing ideology. This 
is far from true. Allow me to illustrate further.

[[Page S7422]]

  Two years ago the Washington Monthly published an article entitled 
``The Conservative Cabal That's Transforming American Law,'' which 
cited a 1999 decision by a panel of the D.C. Circuit's Court of Appeals 
as the ``network's most far-reaching victory in recent years''. The 
decision overturned some of the EPA's clean-air standards on the 
grounds that it was unconstitutional for Congress to delegate 
legislative authority to the executive branch. C. Boyden Gray, a former 
White House Counsel for the first President Bush and a member of the 
Federalist Society's Board of Visitors, filed an amicus brief making 
the winning argument.
  However, this is not the smoking gun case that opponents of the 
Federalist Society would have us believe it to be to prove that it is 
part of the vast right wing conservative conspiracy. First, the case 
was overturned on appeal by the Supreme Court, in a decision written by 
Justice Antonin Scalia, a frequent participant in Federalist Society 
activities who was the faculty advisor to the organization when he 
taught at the University of Chicago.
  Second, the Washington Monthly piece also attacked Boyden Gray as a 
water carrier for the Federalist Society for advancing Microsoft's 
effort against antitrust enforcement. Of course, Mr. Gray serves on the 
Society's Board of Visitors with Robert Bork, who has been Microsoft's 
chief intellectual adversary.
  Not quite the vast right wing conspiracy hobgoblin some of my 
colleagues would have the American people believe in.
  A close examination of the Federalist Society reveals not a tight-
knit organization that demands ideological unity, but an association of 
lawyers, much like the early bar associations that first appeared in 
this country in the late 19th century, made up of individuals from 
across the political spectrum who are committed to the principles of 
freedom and the rule of law according to the Constitution. As a former 
co-chairman myself, I applaud that the President has sought out its 
members to fill the federal bench.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

          60 Diverse Participants in Federalist Society Events


                         Supreme Court Justices

  1. Justice Stephen Breyer
  2. Justice Ruth Bader Ginsburg
  3. Justice Anthony Kennedy
  4. Justice Antonin Scalia
  5. Justice Clarence Thomas


                            Cabinet Members

  6. Griffin Bell
  7. Abner Mikva
  8. Bernard Nussbaum
  9. Zbigniew Brezinski
  10. Alan Keyes


                                Elected

  11. Barney Frank
  12. Michael Dukakis
  13. George Pataki
  14. Eugene McCarthy
  15. Charles Robb
  16. Jim Wright
  17. Mayor Willie Brown


                                 Judges

  18. Robert Bork
  19. Guido Calabrasi
  20. Richard Posner
  21. Alex Kozinski
  22. Pat Wald
  23. Stephen Williams


                            Law School Deans

  24. Robert Clark--Harvard
  25. Anthony Kronman--Yale
  26. Paul Brest--Stanford
  27. John Sexton--NYU
  28. Geoffrey Stone--Chicago


                         Law School Professors

  29. Alan Dershowitz--Harvard
  30. Laurence Tribe--Harvard
  31. Cass Sunstein--Chicago


                            Interest Groups

  32. Nadine Strossen--President, ACLU
  33. Steve Shapiro--General Counsel, ACLU
  34. Ralph Nader--Public Citizen Litigation Group
  35. Patricia Ireland--Fmr. President, NOW
  36. Anthony Podesta--People for the American Way
  37. Martha Barnett--Fmr. President, ABA
  38. George Bushnell--Fmr. President, ABA
  39. Robert Raven--Fmr. President, ABA
  40. Talbot ``Sandy'' D'Alemberte--Fmr. President, ABA
  41. Larry Gold--Assc. General Counsel, AFL-CIO
  42. Damon Silvers--Assc. General Counsel, AFL-CIO
  43. Nan Aron--Exec. Dir., Alliance for Justice
  44. Richard Sincere--Pres., Gays and Lesbians for Individual Liberty
  45. Michael Myers--NY Civil Rights Commission
  46. Samuel Jordan--Fmr. Dir., Program to Abolish the Death Penalty--
Amnesty Int'l
  47. Marcia Greenburger--Co. Pres., National Women's Law Center
  48. Victor Schwartz--Gen. Cnsl., American Tort Reform Assoc.
  49. Linda Chavez--Pres., Center for Equal Opportunity
  50. Ward Connerly--Founder/Chairman, American Civil Rights Initiative
  51. Thomas Sowell--Hoover Institute
  52. Michael Horowitz--Hudson Institute
  53. Clint Bolick--VP, Institute for Justice


                               Columnists

  54. Christopher Hitchins--The Nation
  55. Michael Kinsley--Slate/The New Republic
  56. Juan Williams--NPR/The Washington Post
  57. George Will--ABC News
  58. Bill Kristol--The Weekly Standard
  59. Nat Hentoff--The Village Voice
  60. Richard Cohen--The Washington Post

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