[Congressional Record Volume 149, Number 3 (Thursday, January 9, 2003)]
[Senate]
[Pages S120-S123]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  IN DEFENSE OF THE FEDERALIST SOCIETY

  Mr. HATCH. Mr. President, I am very pleased that the President has 
wasted no time in delivering his judicial nominations left behind in 
the last Congress. The President's judicial nominees have proven to be 
superb and among the best I have seen in all my years of service in 
this body.
  As chairman of the Judiciary Committee, I expect that my colleagues 
on both sides are eager to do the people's business and move as 
promptly as President Bush to fill judicial vacancies.
  Of course, I realize that the distortions have begun.
  The usual special interest lobbies, pursuing their political and 
economic interests, have already been busy painting a very scary 
picture with the usual shrillness and tired old tactics.
  The President of the United States has nominated men and women who, 
whatever their personal politics or views, are constitutionalists who 
are committed to enforcing the law as the people's elected 
representatives have adopted, and who will interpret the Constitution, 
not rewrite it as if they were in the room with the founding fathers--
Constitutionalists, not Republican or Democrat, not liberal or 
conservative, who will approach their roles in a common sense manner.
  But today, I rise to right one particular wrong. A recent report by 
People for the American Way, with, oddly enough, a remarkably biblical 
title, paints President Bush's nomination as an Armageddon. In reading 
the report, one would well think the President is choosing judges from 
the ranks of the Raelians.

[[Page S121]]

  But they especially go out of their way to malign the thousands of 
honest, smart and hard-working lawyers and law students who are members 
of the Federalist Society as if these fine men and women wear the mark 
of the devil.
  Mr. President, I am a member of the Federalist Society and I am proud 
of it. Last year, the Federalist Society celebrated its 20th 
anniversary, and we are all proud of that.
  Of course, the childish games played against the Federalist Society 
are not new. Over the past 2 years, members of the Federalist Society 
have been much maligned by some even in this body. 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 1950s. 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 country's law schools and in the legal 
profession, and that the left is shocked that an association of honest, 
non-partisan, constitutionalist lawyers would exist, much less include 
the notable legal minds it does.
  During the mid-1990s, Professor James Lindgren of Northwestern 
University Law School conducted a survey of law school professors and 
came to the following 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.
  Mr. President, anyone associated with America's campuses or law 
schools knows that non-liberal 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 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 may of America's law schools.
  The Federalist Society espouses no official dogma. Its members share 
acceptance of three universal ideas: One, that government's essential 
purpose is the preservation of freedom; Two, that our Constitution 
embraces and requires separation of governmental powers; and, three 
that judges should interpret the law, not write it.

  Tell me if you disagree with any of these ideas. Most Americans do 
not, but it seems like some in this town do.
  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 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, the abortion on demand lobby, and some 
predatory businessmen who happen to hold law degrees and call 
themselves trial lawyers are successful; if we appoint judges that are 
committed to writing the law and Constitution and not interpreting it 
only, then all of us can just go home. We can resign ourselves to live 
under the oligarchic rule of lawyers--or should I say judges.
  I happen to know a few lawyers, and please trust me when I say, this 
is not a good idea.
  Not surprisingly in an association of lawyers, the truth is that 
beyond acceptance of the Federalist Society's 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 at the very least 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 dialog. Any organization that sponsors debate on 
issues of public importance, as opposed to self-serving indoctrination, 
is healthy for us all and it is good for this body as well.
  Now, how does the Federalist Society accomplish its goal? Not by 
lobbying Congress, writing amicus briefs, or issuing press releases. 
And, no, it does not threaten members with withdrawal of support in 
campaigns or running negative smear ads, which some of the special 
interest groups that smear this President's good judges engage in. 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. I venture to say the Federalist Society's meetings and 
symposiums are among the most well attended and among the most widely 
attended and among the most diversely attended and among the best 
symposiums held by anybody in the judicial field. But those 
participants who have participated--maybe we should look at some of 
them. They have included scores of liberals such as Justices Ruth Bader 
Ginsburg and Stephen Breyer, Michael Dukakis, Barney Frank, Abner 
Mikva, Alan Dershowitz, Laurence Tribe, Steve Shapiro, Christopher 
Hitchins, and Ralph Nader, 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 many of us know, respect, and have worked 
with, and who has participated in Federalist Society functions 
regularly and constantly since its founding, and who attended the 
recent 20th anniversary dinner.
  The ACLU's president has praised the Society's 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. Ms. Strossen 
has 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 here in Washington.
  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 much 
disagreement on most social and political issues. Some, unfortunately, 
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.
  Three 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

[[Page S122]]

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. 
They are on opposite sides.
  There is not quite the vast right wing conspiracy hobgoblin some of 
the special interest groups in this town would have the American people 
and members of this body believe in. Indeed, I urge my colleagues to be 
extra careful when and look at the record before they attack this fine 
organization or its members.
  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 co-chairman myself, I am not surprised that the President has 
sought out its members to appoint for position on the bench and in the 
government. I applaud his foresight and wisdom. I am proud that its 
members are solid constitutionalists, whether they are liberal or 
conservative, Democrat or Republican.
  Mr. President, contrast that with People for the American Way, which 
has waged every obnoxious rotten fight against President Bush's 
nominations that has been waged in the last year. This is a very well-
heeled organization. It is totally ideological. If you disagree with 
their far left liberal viewpoints, then they vilify you and try to 
impugn your motives. That is not what I call fairness in the debates 
that we should have around this body. Yet it is amazing to me how some 
in this body seem to be absolutely in tune, or should I say marching to 
the drumbeat of People for the American Way.
  I started off by mentioning criticisms by the People for the American 
Way of the Federalist Society, and I have to say, if you add it all up, 
this is a well-heeled, very liberal organization that is as partisan, 
combative, obnoxious in many ways, and false in its arguments and 
accusations as any organization I have seen in this country.
  In almost every case where there has been any type of conservative of 
stature nominated to the courts, they have come in and completely done 
their best to deliver body blows to that nominee. It all seems to come 
down to basically one issue, and that is, if they suspect that a 
nominee is pro-life, then that is just an absolute no-no to them. It 
isn't just that. They have taken other nominees nominated by this 
President and others in the past, have taken their records and, in my 
opinion, have distorted in many ways their record. I don't think People 
for the American Way should be in a position to criticize the 
Federalist Society which primarily conducts the best symposia in law in 
America today. That is a fact.

  I will never forget; I was invited to the University of Chicago by 
the Federalist Society members--150 members at that time--to speak at 
the law school at the behest of the Federalist Society. I figured there 
would be 100 or 150 people there. They had this one hall rented. They 
had to take me in the back way because of the protesters out front. 
Although I was willing to go through the protesters, they were afraid 
some of them were violent. We went inside the hall, and they were 
absolutely jampacked, people hanging from the rafters. Almost all of 
those who disagreed with the Federalist Society principles--in other 
words, principles that were not the left-wing principles--had a heavy 
piece of parchment paper. As I went to speak, they would stand up and 
rattle that paper. And that sound was deafening. You could not be 
heard. I have to say that what was going to be about a 20-minute speech 
turned out to be 145 minutes, or 2 hours by the time I could complete 
it.
  I have to say I enjoyed the experience. But it was disconcerting that 
people at a major university--these were not people from the law 
school, in my opinion. And I am not sure they were even students at the 
university, many of them--would try to stop discourse from a U.S. 
Senator or anybody else, for that matter, who came there in good faith 
to deliver points of view that certainly I felt were worthy of 
consideration in this field of law.
  I have to say there was one young lady three or four rows down who 
kept yelling epitaphs at me throughout my remarks. I tried to humor 
her, and I tried to go along and be reasonably thoughtful and kind to 
her. But, finally, I could tell she was getting on the nerves of almost 
everybody because she was really out of line and loud. I kind of 
enjoyed the confrontation to a degree. But it was getting old. Finally, 
after about an hour and 15 minutes, I looked at her, and, I said, I 
finally figured it out. You could not possibly be a member of this 
great law school, because, No. 1, you are so rude. I said, No. 2, you 
are so stupid. Of course, even at that point, even those who were there 
to oppose me and to rattle their parchment so I couldn't be heard 
started to cheer and applaud. I was able to end my remarks, which I 
felt were remarkably good for anybody in the field of law, whether they 
were from the left or the right or the center. I think in the end they 
were good for everybody there.
  That is what is going on in the debate on judges today. We have some 
of these well-heeled left-wing groups that don't care what the facts 
are and distort anybody's life by coming in and utilizing their 
economic swat because they have all kinds of left-wing money behind 
them to malign and to slander and sometimes libel very good nominees.
  I know a number of people in People from the American Way, and I have 
respect for some of them, but I have to tell you I hope they will 
elevate their discourse so that we will have true debates and not 
distortions and slander and libel and complete ignorance of what people 
stand for and what their records are.
  I think we are getting down to where we are getting very close in 
this country to where single litmus tests are going to determine 
whether we can have judges. And we are getting to the point where the 
great jurists of the future might not arise because we might have to go 
to the lowest common denominator.

  Having said all of that, I look forward to working with every group 
in this coming year. Hopefully, we can get a greater sense of discourse 
and a greater sense of responsibility, and that when we raise 
objections we hope they will be legitimate and honorable objections 
rather than objections geared to trying to smear somebody because of 
their disagreement. I think it is time we elevate the discourse around 
judges in this country, and I hope this year we can prove we can do 
that. But, in any event, my hopes have not been fulfilled today.
  I ask unanimous consent to have printed in the Record 60 diverse 
participants who have participated in Federalist Society events at this 
point.
  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

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     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

  Mr. HATCH. Mr. President, I yield the floor.

                          ____________________