Balkinization  

Monday, December 01, 2008

A Modest Proposal for Restoring Trust In Federal Judicial Appointments

Brian Tamanaha

Just about everyone who is paying attention agrees that the appointments process for federal judges is far too politicized. Neither side trusts the other. Both sides are guilty of hypocrisy. It’s a mess that threatens the integrity of judging as well as public faith in the integrity of judging.

Senator Mitch McConnell and the Wall Street Journal continued this unfortunate trend in their recent calls for a “bipartisan” approach to federal judicial appointments. For the WSJ, bipartisan means that President Obama should re-appoint President Bush’s lapsed judicial nominees. In a recent speech before the conservative Federalist Society, eliciting an approving roar from the crowd, Senator McConnell suggested that Republicans will oppose any candidates who are nominated by Obama for reasons of ideology.

The Big Fat Lie here is that the last three Republican Presidents have systematically screened federal judicial nominees for conservative ideology. If Republicans were committed to the test McConnell proposes, they would vote down Bush’s judicial appointees.

The Federalist Society is not a politically neutral organization but a partisan political one. And the judges the Society prefers are not non-ideological but political, economic, and social conservatives. It is absurd to suggest otherwise.

Absent a candid admission on the part of Republicans that they too have politicized the process, it is sensible for liberals to assume that the next Republican president will resume rigorous ideological screening of judges. They would be suckers to think otherwise.

Here’s a modest proposal to get us on the right track:

The crucial test is not whether a nominee has a political ideology—holding social, economic, and political views of one stripe or another—for most everyone does. Republican appointees can come from the conservative end of the political spectrum and Democratic appointees from the liberal end without threatening the integrity of judging (a fuller explanation here).

The test is whether a nominee is an ideologue. An ideologue is committed to pursuing her political agenda at every opportunity. Ideologues on the bench, left or right, are a threat to the rule of law. It’s not easy to identify ideologues, but one sign is the past advocacy of extreme positions.

It would be a gesture of good faith for President Obama to re-appoint a few of President Bush’s highly qualified judicial nominees who are not conservative ideologues. To match this gesture, the Federalist Society, Senator McConnell, and the Republican Party, should admit that for decades they have engaged in a hardball game of ideological-screening and they should pledge in the future to nominate jurists who are not ideologues (the Federalist Society is included here because it has put forth a sizable number of President Bush's judicial nominees).

That would be a start toward restoring trust.


Comments:

1) Mr. Obama has no duty at all - good faith or otherwise - to re-nominate prior Bush nominees. Elections have consequences. I certainly would not advocate a GOP President keeping any Obama nominees in 2012.

2) The Federalist Society is the conservative counterpart to the liberal ABA. Unfortunately, bar associations lost any political objectivity years ago and are simply one more special interest group.

3) The only requirement for a judicial nominee should be to strictly follow the law as it is written even if the result is contrary to their personal political preferences. I have no illusions on this account concerning likely Obama nominees given the track record of judicial legislation by the Clinton nominees.
 

Bart,

Of course Obama has no "duty" to do this. The process of restoring trust requires actions that demonstrate good faith.

Your predictably hardline position is appropriate in the realm of pure politics. But the extension of this kind of thinking into the judicial appointments realm is precisely what has gotten us into trouble.

Brian
 

Why not just declare the Federalist Society a terrorist organization?
 

Prof. Tamanaha:

For the WSJ, bipartisan means that President Obama should re-appoint President Bush’s lapsed judicial nominees.

... wonder what ever gave them that idea....

I think that Democrats often fail to understand the Rethuglican mind. BMA; you give those rabid dogs a morsel of meat, they'll not only not be your friend for life, they'll try to bite your whole arm off. Why is this so hard to understand? Any bets, folks, on how long it will be before they show this behaviour, and the Democrats act surprised?

Cheers,
 

Brian: "...the Federalist Society, Senator McConnell, and the Republican Party, should admit that for decades they have engaged in a hardball game of ideological-screening..."

Such an admission is simply not in the play book of people who in fact play hardball. Crying foul at hardball tactics only encourages the miscreants and opens the victim to accusations of weakness.

It may take two to tango, but it only takes one to turn a potentially cooperative venture, such as dialectic, into a zero-sum game. Anyone who refuses to recognize the presence of a zero-sum player on the other side of the table is in for a rough, rough, ride. This is academic liberalism's greatest failing: mistaking committed ideological enemies for rational good-faith interlocutors. This failing leads to nonsensical positions such as permitting a determined political ideologue to persist in bad faith interactions while her hosts maintain an Olympian detachment, as if unaware this silence tacitly adds their good name credibility to their committed enemies. Of course, interacting with these enemies does the same.
 

Prof Tamanaha:

... It’s not easy to identify ideologues...

Sure it is. Just go here. Or here. Or here. And check the name against the lists. ;-)

Of course, this is said by someone who had a subscription to the HJLPP back in the '90s ... until they stopped sending it to me unless I gave them money....

Cheers,
 

Brian:

What form of good faith do you suppose that Obama's renomination of Bush nominees might garner? The GOP routinely voted for Clinton nominees even though their judicial philosophies were far from originalist. Despite some bluster from the right, I do not see that changing during an Obama Administration. Borking is not a GOP practice. Thus, I fail to see what further good faith can be purchased from the GOP.
 

Sez the guy that thinks the Eleventh Amendment says precisely what it does not say:

"3) The only requirement for a judicial nominee should be to strictly follow the law as it is written even if the result is contrary to their personal political preferences."

Hogwash. And that's just one of the most blatant examples of the absurdity of RW ideologues WRT this "strict constructionism" horse flogging.

Cheers,
 

Borking is not a GOP practice.

Your tense is wrong. And just a clue for you: Bork was not a Democrat.

FWIW, Clinton's nominees were held up or turned down by the Rethuglicans more than Dubya's, despite the fact that Dubya's were far more ideological than Clinton's. Just look at Clinton's relatively moderate SCOTUS appointees Ginsburg and Breyer, neither flaming liberals (and not of the Scalia/Thomas/Roberts/Alito mold).

Cheers,
 

Unless Obama appoints a judge so radical that even conservative Democrats join the opposition (unlikely), the Republicans have no cards to play. What are they going to do, cobble together a party-line filibuster comprised of Senators who, to a man, were decrying the judicial filibuster as inconsistent with the traditions of the Senate (or even unconstitutional) just a few years ago? McConnell is making a big mistake by vowing to engage in ideologically-motivated blocking of judges when he should be quietly working behind the scenes with the White House to negotiate for as much as he can get, but the results of the election seem to have shaken him somewhat. The Republicans will probably take quite some time to establish themselves as a competent opposition party, which means only one team will be on the playing field in the meantime.
 

Robert,

When I asserted this same position in my jurisprudence class, a few of my students argued that I was being naive, along the lines you suggest.

I couldn't deny the charge, but instead responded by saying we don't have much choice.

I believe that most people--conservative, liberal, or whatever--are not extremists. In recent years extremists have been jerking the chain that drags everyone else along. If political leaders can resist the temptations of extremists, the rest of us can make it work.

Bart,

I'm not sure where you get your statistics from. My book Law as a Means to an End details the extraordinarily bad treatment Republicans accorded to Clinton's judicial nominees, far worse than any previous treatment of Republican nominess by Democrats. I didn't make up any of the numbers (the data was taken from published studies by respected political scientists).

Both sides have engaged in bad behavior. I don't see why you feel the need to insist that Republicans have clean hands and the problem is all the fault of Democrats and their appointees.

Brian
 

I couldn't deny the charge, but instead responded by saying we don't have much choice.

Why doesn't Obama have a choice? He should be able to choose his own non-ideologues instead of trying to figure out which Bush picks are non-ideologues.

If the McConnells and Barts of the world are not happy with the results of that, too bad. There is no reason to compromise with the likes of them.
 

I think we should certainly give this some strong thought now, and the next time the GOP is running the White house, we should implement it.
 

Brian,

Thanks kindly for addressing my point. I should confess to having conflated a couple of issues, academic liberalism's approach to hardball politics and academic liberalism's tolerance of vandals in their comments communities, but both examples fit the heading, "Recognizing a zero-sum player on the other side of the table".

In context of your post, it's simply futile to suggest hardball ideologues play fairly, much less to insist that they play wisely. Fair and wise in such eyes are measured entirely by partisan success. The triumph of partisan interests over state and national interests simply wasn't accounted for adequately by the Framers. The Constitution assumes good faith players, and any system can be gamed by bad faith players.

Of course, you know that already. You literally wrote the book on how bad faith players game the system, primarily with a "faithful to the letter, hang the spirit" approach to the law, when such an approach suits them. In the public sphere it is hard to say what can be done. Educating the masses so they are less susceptible to the morally and logically flawed rhetoric of those who would game the system is a start. Seeing academic liberalism admit "here there be dragons" and stop acting so surprised that miscreants continue to be miscreants would be another good step in the right direction.

Here in the less public sphere things are different. You and our other hosts do not need to privilege ideologues. These people are free to post their words any number of other places. The comments area of this blog is arguably Professor Balkin's private property and we all are here strictly on his sufferance, as in, "We reserve the right to refuse service to anyone".

Tying the two examples back together, where the question is "what to do with a zero-sum player", the answer is "don't play their game". With local trolls, they can reasonably be bounced, at whim, simply for annoying their host. The nature of a blog comments community largely precludes any other form of sanction for bad faith players. In the public sphere we can only work to form a larger stronger community that simply rejects illegitimate tactics such as those which prompted your post here.
 

Brian:

I am primarily referring to the process of appointing Supreme Court justices. Both of the Clinton Supreme Court nominees sailed through without Borking - the slanders, attacks and demands that they conform to liberal jurisprudence that has become SOP for conservative nominees.

I never posted that the GOP's hands were clean of delaying votes on Clinton lower court nominees. My understanding of the Clinton Administration judicial appointments is that Mr. Clinton was rather lazy in appointing judges and then the GOP dragged its feet during the first five years. Then relations between judiciary committee and the President fell completely apart during the impeachment process starting in 1998. Due to the unusual circumstances, it is probably inapt to compare the appointment process during an impeachment with prior periods.

I am sorry, but I have not read your book and thus an unfamiliar to the arguments and data to which you referred. If you have a particular point you would like to make, I would enjoy discussing it with you.
 

"Bart" DeObtuse:

[T]he GOP dragged its feet during the first five years....

Yes. And?

Then relations between judiciary committee and the President fell completely apart during the impeachment process starting in 1998. Due to the unusual circumstances, it is probably inapt to compare the appointment process during an impeachment with prior periods.

The impeachment was part and parcel of the overall obstructionism ... nay, CDS ... of the Rethuglican party. Saying they tried to impeach him as well as block his judicial appointments is hardly expiation ... but it does explain a lot, if you choose to actually look at what was going on.

Cheers,
 

"I believe that most people--conservative, liberal, or whatever--are not extremists. In recent years extremists have been jerking the chain that drags everyone else along. If political leaders can resist the temptations of extremists, the rest of us can make it work."

Brian,

That strikes me as one of the most clueless statements I've heard in awhile. The Republican Party is a gang of fascists, racists, religious bigots, and murderous gangsters. Get real already.
 

"An ideologue is committed to pursuing her political agenda at every opportunity."

"Every opportunity" in reality is less than some rhetoric implies. This leads to a lot of b.s. Thus, Alito was shown to -- when the case was not clear one way or the other -- to be strongly conservative.

Some said "but he joined with his brethren a majority of the time!" And, Rehnquist and Brennan voted the same way in many a case too. Nice dodge!

Likewise, some very partisan sorts might be good judges. Some Bush appointees have gone turncoat because the law warranted it. And, some who look pretty even-keeled might be very ideological on the bench. See William Brennan.

Bush43 picked some good judges, some probably having nominations pending. As he did, I'm sure Obama will re-appoint a few. Let's call it the Gates approach. I doubt it will impress the ideologues too much, especially Federalist Society hypocrites.

And, justices are like "umpires," you know? A good President might help quiet the phonies, but they will be always with us.
 

In good faith to all liberals, President Obama should ignore everything that all Republicans say. Screw them, ignore them and exclude them at every turn because those criminal bastards will return to their evil ways the instance they have the chance.
 

Unfortunately, ever since the 1971 Powell Memorandum was taken up by the foundations of the extreme right, there has been over 35 years of serious investment in the business of moving American legal thought to the right. It is now going to be very hard for anyone to redress the balance.

A very large part of the Powell Memorandum advocated changing the nature of US higher education and the far right has invested its money wisely: in endowments, scholarships, infiltration of boards of trustees and with that, the appointment of large numbers of conservatives to academic posts - perhaps nowhere more so than in law faculties. Since the universities have willingly taken the considerably more than 30 pieces of silver of the far right for more than 30 years, is it surprising that there has been a real shift to the right in American jurisprudence?

Arne Langsetmo posted links above to the national leadership pages of the Federalist Society, but what he missed were the pages setting out the 299 Business and Student Chapters of the Federalist Society. This is where the real damage has been done. This is where law students learn that if they want a well-paid job in business, or in the top 500 law firms, or in government (most of the time), they had better espouse the principles of neoconservatism and join the Federalist Society.

So I do not see how a single Democratic administration could reverse this trend merely by exercising the power of appointment to the Federal Bench, although that will be part of reform.

Firstly, there is, perhaps, a need to have a look at the tax exemptions enjoyed by the far right foundations - why should their activities be paid for in part by the US taxpayer?

Then, perhaps, the Administration could look at the establishment of an advisory Federal Judicial Appointments Commission - with bipartisan membership - to recommend suitable candidates for appointment to the bench. There is such a Judicial Appointments Commission in the UK. If such a Commission were established and took hold, it might become difficult to abolish.

Also, the time might be ripe for a good hard look at the Article III Courts legislation and the Federal Rules of Procedure. It might be time to re-think the hierachy of Courts, the establishment of specialised jurisdictions (Admiralty, Administrative Law, etc) the simplification of procedure etc.

Lastly, perhaps the time has come to further professionalise the Federal Government's legal service with a single bi-partisan Appointments Commission and most of the legal posts in the administration to be apolitical civil service appointments so as to increase the independence and status of the lawyers advising government departments.

Very cynically, the aim should be to produce a government legal service and a judiciary which is "centrist", wholly satisfying neither the right nor the left, and so far as humanly possible - apolitical.
 

This is so ignorant that it's hard to be believed. Brian, stop by a Federalist Society meeting some time, pick up some literature about the organization, check out the group's website. It's a group that doesn't take positions. Its members disagree about a good number of legal issues. To accuse the Federalist Society of 'putting forth' nominees is absurd.

Given that display of partisan-motivated ignorance, it isn't hard to see how you'd reach the conclusion that Republicans treated Clinton nominees worse than Democrats treated Republican nominees.
 

@Mourad,

Always a pleasure to read your posts.

I'm not sure I agree that we need to re-write the rules, as with enough will, money, and time any set of rules can be subverted, and there is no reason to assume the new rules would fare any better than the extant ones.

Liberalism in the U.S., as I understand it, really took hold when Capital was brought to its knees, through its own excesses, in the late 20s. The liberal reforms of the FDR period were aimed at mitigating the damage done by Capital to itself. Which is to say, liberalism was originally pro-business, at which time it prospered. I'm sure you can see where I'm going with this. Only when liberalism again becomes the profitable option will we see it once again ascendant. That day is not today, not with both parties dead set on putting our corporations on the dole.

Apropos of Brian's concern, as you said, it took a long time (and a lot of money) to get us into this mess, and it won't be cured in a single administration. But we can and must do what we can, wherever we can, which includes Mr. Obama graciously ignoring disingenuous calls for "bi-partisanship" from the losers who have suddenly lost their taste for hardball.
 

Mourad:

You once again misunderstand our legal system.

The idea that the legal profession in general and legal academia in particular is unbalanced to the "extreme right" provided me with a good laugh to start my day.

The US legal profession in general is to the left of the population at large and openly and heavily supports the Democrat Party.

US legal academia is an almost complete bastion of the left with some notable exceptions and schools. This blawg is a good example of the political slant of most of legal academia. My law school faculty ranged from fairly mainstream liberal thought to complete leftist ideologues teaching the property rights of slave holders in first year property class and same sex marriage rights before the concept had even made its way into the courts.

While the idea that the Federalist Society has reshaped academia to originalism is a appealing, there is no truth to the claim. Indeed, our law school chapter of the Federalists had to struggle to even find a sponsor among the faculty. When we held debates, we had to import visiting conservative professors to debate our own faculty because there was not a single conservative or even moderate on our faculty apart from our Crim Law prof sponsor. Rather, than some powerful monolith, the Federalists more resemble a legal guerilla movement.

Where we in the Federalists had influence was among the students. I was in charge of recruiting members in our branch of the Federalists. While I would have loved to be able to offer well paid jobs to entice prospective members, the fact is that membership in the Federalist Society is only an entrée to conservative firms or judges. In fact, I tripled the size of our branch to around 60 members simply be appealing to the students own conservative beliefs and because we had far more fun holding debates, challenging the professors and partying than did our small counterpart ACLU branch.

The simple reason that our federal judiciary has rough parity between liberals and conservatives is because the Presidents have been predominantly conservative and GOP, or listen to their base when it comes time to appoint judges.

BTW, "neoconservatism" is a school of foreign policy among former liberal Dems and has nothing at all to do with the Federalist Society and its work.
 

Overheard: "BTW, "neoconservatism" is a school of foreign policy among former liberal Dems and has nothing at all to do with the Federalist Society and its work."

The best way to lie is to tell that portion of the truth which suits one's purposes, omitting any awkward details as needed, and then tack on some preposterous claim to distract the unwary from calling you on your nonsense. This probably worked better in the pre-google era.

neoconservatism at google

Neoconservatism at Wikipedia:

The first major neoconservative to embrace the term and considered its founder is Irving Kristol, father of William Kristol, who would become the founder of the neoconservative Project for the New American Century, and wrote of his neoconservative views in the 1979 article "Confessions of a True, Self-Confessed 'Neoconservative.'"[1] Kristol's ideas had been influential since the 1950s, when he co-founded and edited Encounter magazine.[5] Another source was Norman Podhoretz, editor of Commentary magazine from 1960 to 1995. By 1982 Podhoretz was calling himself a neoconservative, in a New York Times Magazine article titled "The Neoconservative Anguish over Reagan's Foreign Policy".[6][7] The term has been the subject of increasing media coverage during the presidency of George W. Bush.[8][9] In particular, discussion has focussed on the neoconservative influence on American foreign policy, as part of the Bush Doctrine, (see "Administration of George W. Bush," below).
 

Robert:

You may want to actually read the posts to which you link before calling me a liar. Your linked posts simply restate my position in more detail.
 

This comment has been removed by the author.
 

Thomas:

This is so ignorant that it's hard to be believed. Brian, stop by a Federalist Society meeting some time, pick up some literature about the organization, check out the group's website. It's a group that doesn't take positions....

Oh, what a steaming load. Having been, amongst other things, the FedSoc student chapter treasurer during my days at Boalt (and one year before Mr. Yoo became the chapter's faculty advisor), I was keeping a pretty good watch on things (not to mention they kept sending me newsletter and the HJLPP for quite some time).

To pretend that the FedSoc has no ideology insults our intelligence, and to pretend it has no mission is to deny what's readily apparent to anyone who's even looked casually into its founding.

Cheers,
 

@Bart,

I'm surprised you took that bait. Of course I omitted the part you had proffered as complete. That was the point, to add what you omitted. Yes, the term was coined to describe a faction of the Democrats. You omitted who exactly embraced and popularized the term, a lie of omission. But we've grown accustomed to such.
 

Arne: "Having been, amongst other things, the FedSoc student chapter treasurer during my days at Boalt (and one year before Mr. Yoo became the chapter's faculty advisor)..."

Can't help thinking there's a story waiting to be told here. ;)
 

Yeah Arne, what was a flaming leftist like yourself doing joining the Federalists?

Inquiring minds want to know.

I have a hard time believing it was the legal philosophy being advanced there.

Maybe it was the parties?

I agree with Robert that the story must be interesting.
 

"Bart" DeRNCFlack:

The idea that the legal profession in general and legal academia in particular is unbalanced to the "extreme right" provided me with a good laugh to start my day.

And who said that??? What was said was that the Federalists have been moving it that way.

The US legal profession in general is to the left of the population at large ...

That may have been true in Nazi germany as well. So I'm not quite sure what point was being made. But I'd note that your idea of where the U.S. population is seems rather divorced from reality (see, e.g., "Bart"'s 'analysis' of the 2006 and 2008 elections).

... and openly and heavily supports the Democrat Party.

What is this "Democrat Party" I keep hearing of?

Makes me feel a little less bad about using my pet names for "Bart" DeBugblatter....

As for who the Democraic Party should support, perhaps "Bart" DeBugblatter can explain why he thinks that they ought, of necessity, support both parties evenly (if in fact they aren't doing so right now).

Cheers,
 

LSR Bart writes:-

"My law school faculty ranged from fairly mainstream liberal thought to complete leftist ideologues..."

"Where we in the Federalists had influence was among the students. I was in charge of recruiting members in our branch of the Federalists. While I would have loved to be able to offer well paid jobs to entice prospective members, the fact is that membership in the Federalist Society is only an entrée to conservative firms or judges.

In fact, I tripled the size of our branch to around 60 members simply be appealing to the students own conservative beliefs and because we had far more fun holding debates, challenging the professors and partying than did our small counterpart ACLU branch."


I leave it to others to report on whether the faculty of the Florida State College of Law was in the first half of the 1990's as liberal as poor Bart contends. After all, what is "mainstream liberal" in the understanding of loathsome spotted reptiles is probably slightly to the right of Ivan the Terrible in mine.

But I have always had something of a suspicion that poor Bart took his law finals by a deputy and that impression is somewhat reinforced by his admission that he passed his time carousing with 60 likeminded persons (not just alligators but other reptiles seem to get everywhere in Florida) while seeking entrées to "conservative firms or judges".

Surprising therefore that poor Bart couldn't hack his way into a conservative law firm even with the help of his impressive recruitment figures for the Federalist Society - so perhaps he ought to have spent more time reading and at lectures and rather less time partying and recruiting.

Thomas wrote:-

"This is so ignorant that it's hard to be believed. Brian, stop by a Federalist Society meeting some time, pick up some literature about the organization, check out the group's website. It's a group that doesn't take positions. Its members disagree about a good number of legal issues. To accuse the Federalist Society of 'putting forth' nominees is absurd. Given that display of partisan-motivated ignorance, it isn't hard to see how you'd reach the conclusion that Republicans treated Clinton nominees worse than Democrats treated Republican nominees.

May I ever so respectfully suggest a little homework. Start with the following:-

The Federalist Society - from Obscurity to Power
Hijacking Justice
Fascist `Feddies' March Through the Institutions

If after reading the above, Thomas can assure us that all three reports are grossly defamatory libels of a fine organisation rightly benefiting from tax exemption because of its contribution to the advancement of learning, then just why has this charity so well funded (to the tune of just over US$9 millions in 2007) by the likes of the John M. Olin, Lynde and Harry Bradley, Sarah Scaife, and Charles G. Koch and Castle Rock, foundations and with so many allegedly fine jurists among its membership - not sued to vindicate its good name ?

No smoke without fire perhaps ?
 

[We] had far more fun holding debates, challenging the professors and partying than did our small counterpart ACLU branch.

This would explain a lot.

Cheers,
 

Robert Link:

Can't help thinking there's a story waiting to be told here. ;)

Someone had to keep an eye on them. I will admit that my honesty prohibited me from making off with their bank account when I left. ;-)

I did use my presence to try and encourage them to hold actual debates, in preference to just bringing in people off the Federalist Society "welfare honorariums for RW speakers" list (including such legal illuminaries as David Brock, before his apostasy). We got Rachel Moran to debate against Linda Chavez on bilingual education.

As "Bart" claims to believe, I think that the RW dogma must be confronted and debated in the open; the more, the merrier. Too bad that "Bart" has such a low opinion of honest debate here.....

Cheers,
 

It's English Muffins time as Thomas promises nooks and crannies that he can hide among.
 

Bart: "I agree with Robert that the story must be interesting."

On the one hand, I want to encourage a spirit of "respected adversaries". On the other hand, you act so shamefully so often with never a even a feigning of remorse that it is hard to simply overlook your past transgressions in order to reinforce this momentary opportunity for rapprochement. Bart, the truth is, if you spent half as much time and effort working on earning people's respect as you spend on proving yourself to be a mindless "black and white ideologue" then folks would undoubtedly embrace you as a worthy adversary. We all see you have skill, will, and seemingly endless amounts of time to put to use. What a treat it would be to see it put to good use, rather than the shabby showing you usually make here. In such a case I would gladly welcome your agreeing with me about Arne's story. As it is, I can't help being offended at your effrontery.
 

Mourad:

The Federalist Society - from Obscurity to Power; Hijacking Justice; Fascist `Feddies' March Through the Institutions

Good heavens! Is this the kind of wingnut nonsense you have been relying upon for your opinions about the Federalist Society? That explains a great deal.

For those who are unacquainted with the Federalist Society, you can get a good feel for its libertarian/conservative legal and political perspective by going to the Federalist site and peruse their recommended reading list for prospective law students and others who are interested in the law.

One can only marvel at the 1984 points of view that somehow label the classical liberalism of Locke, Smith, Blackstone and Hume as "fascism" and the writers of the Federalist Papers in their arguments for federalism over confederation as "confederates."
 

Arne Langsetmo said...

Robert Link: Can't help thinking there's a story waiting to be told here. ;)

I did use my presence to try and encourage them to hold actual debates...


Oh my, we have something in common. Our merry band of Federalists were continually inviting the ACLU to provide folks for our debates, but they consistently refused. However, our con law profs were more than happy to provide the legal arguments from the left and we were able to set up about a half dozen debates on a variety of legal subjects while I was there.

As an aside, while our faculty was nearly uniformly left, I do not want to imply that they were uniformly ideologues. While we disagreed about a great deal, my con law profs were generous with their class time to allow debates on all sides of the issues and personally generous with their time mentoring myself and my moot court partner over two years of brief writing and competitions. I owe them a great deal.

However, I doubt that our merry band of Federalists shifted the faculty point of view one iota in our direction. Thus, my hilarity at Mourad's claim that Federalists are somehow "hijacking" legal academia.
 

"Bart" DePalma:

Our merry band of Federalists were continually inviting the ACLU to provide folks for our debates, but they consistently refused. However, our con law profs were more than happy to provide the legal arguments from the left...

Prof. Moran was a professor there.

The ACLU probably had more important things to do, but you'd have to ask them. It would seem the bailiwick of law professors to engage in such debates to begin with, IMNSHO. I'd point out that Linda Chavez and David Brock are hardly lawyers, much less working ones, so they can go around giving pep talks to FedSoc conclaves for the honoraria....

However, I doubt that our merry band of Federalists shifted the faculty point of view one iota in our direction.

This is unsurprising.

Cheers,
 

For those who are unacquainted with the Federalist Society, you can get a good feel for its libertarian/conservative legal and political perspective by going to the Federalist site and peruse their recommended reading list for prospective law students and others who are interested in the law.

Yeah. Robert Bork. That's as "mainstream" as they come. And he's hardly alone amongst the far RW ideologues on that resource page of the intellectual luminaries handing down on the received wisdom on all that is "well and good" from on high.

Cheers,
 

LSR Bart recommends that we look at the FedSoc recommended reading list to see what is about. What does one find:-

"The American legal system, properly understood, depends on a few basic concepts that can be quickly grasped by a serious student. The most important of these concepts are private property ownership, freedom of contract, and limited government.

Important concepts, undoubtedly, but I suggest that their elevation to the rank of THE most important concepts, above those of freedom, equality under the law, or due process, suggests a rather special agenda.

The preferred concepts are very much those of big business. For example "freedom of contract" and "limited government" are FedSocSpeak for "don't regulate - we want to be able to bash unions, pollute the atmosphere, rivers and groundwaters, freely adulterate your food, form cartels and make obscene profits in unregulated markets".
 

Oh, Mourad, there you go again. Do you really think the good people of the Federalist Society would use code instead of saying straight up what they mean? Nudge, nudge, wink, wink, say no more!
 

Mourad:

The preferred concepts are very much those of big business. For example "freedom of contract" and "limited government" are FedSocSpeak for "don't regulate - we want to be able to bash unions, pollute the atmosphere, rivers and groundwaters, freely adulterate your food, form cartels and make obscene profits in unregulated markets".

As they freely admit, they're unreconstructed economic "libertarians" [is there any other kind of "libertarian" nowadays outside of those usurpers of the good name of "liberties" by the ACLU?]; see references to Hayek and Friedman, etc.. Big Bidness is "it".... And as we all know too well, there's hardly any more uncompromising ideologues than "libertarians" ... despite the recent events (not to mention the more recent economic work that has garnered Nobels) that show the limits to laissez faire capitalism and that all-knowing, omniscient, and completely fair and just "invisible hand of the market"....

Cheers,
 

Mourad said...

FedSoc recommended reading list: "The American legal system, properly understood, depends on a few basic concepts that can be quickly grasped by a serious student. The most important of these concepts are private property ownership, freedom of contract, and limited government."

Important concepts, undoubtedly, but I suggest that their elevation to the rank of THE most important concepts, above those of freedom, equality under the law, or due process, suggests a rather special agenda.


Freedom and its corollaries are assumed under the principle of limited government as discussed in the various classic books in the reading list.
 

Overheard, regarding the Federalist Society's aims and reading lists: "Freedom and its corollaries are assumed under the principle of limited government..."

Limited government wouldn't be a code of "laissez faire economic policies," now would it? For the record, what the Constitution sets out to do is:

1.) Form a more perfect Union,
2.) Establish Justice,
3.) Insure domestic Tranquility,
4.) Provide for the common defence,
5.) Promote the general Welfare, and
6.) Secure the Blessings of Liberty

Oh, and that's for "We the people," not, "We, the Corporatocracy". So while I think all reasonable people will agree we want as little government as necessary to do the job, those same reasonable people would have to admit it's a big job and thus requires a pretty big machine. Further, item five (5) casts a pretty wide net and could reasonably be read to include keeping water and air clean and food on the tables.

What I don't see anywhere in those principles is a concern for corporate profit, although I'll gladly stipulate that if a case can be made that corporate profits serve these goals adequately then there's nothing wrong with same. But where corporate profits work against these goals then it is the corporations that should lose, not the Constitution.

I watched, "Thank You For Smoking" last night, and, of course, couldn't help thinking of certain participants here. The notion that "If you never lose you're never wrong" really struck a chord, as did the hero worship of the son for the father. If you haven't seen this one, you should. Apropos of the current conversation, it's a nice trick when one can make black seem like white, as when one makes a group with an easily verified history of complete disregard for individual rights where opposed to business seem like they are the protectors of "freedom and its corollaries". As a matter of skill it's almost enviable.

But what does such a person do with that superfluity, their soul?
 

What I don't see anywhere in those principles is a concern for corporate profit

Corporate profit is obviously a blessing of liberty.
 

PMS_Chicago: "Corporate profit is obviously a blessing of liberty."

Perhaps tongue-in-cheek, but maybe not. Either way, worth refuting.

Corporation entities are but legal fictions, owing their existence to the society that enables them. They have no inherent or inalienable rights, and reasonably should, as a price of their existence, suffer a duty to uphold the Constitution. I know, that's not the law as it is, just as it should be. If we the people are going to allow these legal fictions to exist, said legal fictions should serve we the people. If they can make a profit under such duties, all the better.
 

Bart has seldom been so wrong on so many points in his comments on just one posting. Some are blatantly factually disprovable, others represent opinions that are not readily supportable.

1. "The Federalist Society is the conservative counterpart to the liberal ABA."

The ABA is hardly a "liberal" establishment, as much as one might wish it; rather, it consistently calls for the rule of the law. Indeed, historically, it was as staid and conservative, and racist, as an organization could get.

2. "The GOP routinely voted for Clinton nominees even though their judicial philosophies were far from originalist. Despite some bluster from the right, I do not see that changing during an Obama Administration. Borking is not a GOP practice. Thus, I fail to see what further good faith can be purchased from the GOP."

AND

"Both of the Clinton Supreme Court nominees sailed through without Borking - the slanders, attacks and demands that they conform to liberal jurisprudence that has become SOP for conservative nominees."

Wow -- where to start?

First, as regards Clinton Supreme Court appointments, the statement is true, but highly misleading. The only reason his decidedly moderate appointments went through was because he first consulted with Orren Hatch, who signed off on them, before Clinton nominated them -- a practice decidedly not followed by W.

Second, "Borking is not a Republican practice"?!

The Republicans practically invented the practice, albeit outside the judicial nomination realm, with its rabid, and vicious, Red Hunts of Post-WWII. Nixon borked Helen Douglas big-time. The GOP especially did it with Clinton cabinet nominees. His appointment for civil rights at Justice was attacked, and Hatch refused to act on the nominatiuon, because the appointee, at a time before the Rehnquist Court started gutting civil rights law, actually spoke in favor of affirmative action.

Third, on other judicial nominees, Hatch often refused even to hold hearings, let alone allow them to get to a vote before the Senate. This was a practice almost without precedent.

3. "the fact is that membership in the Federalist Society is only an entrée to conservative firms or judges"

What alternate universe is Bart living in? The popular literature on the Supremes reveals that two or three of the justices -- Thomas in particular -- virtually require Federalist Society membership.

4. "I never posted that the GOP's hands were clean of delaying votes on Clinton lower court nominees."

Well, then use your words more carefully; your comments as quoted above were not qualified.

5. "our federal judiciary has rough parity between liberals and conservatives"

By what definition of liberal and conservative are you speaking? Taking the Warren Court as liberal, there are very few federal judges that would rank with Warren and Brennan, let alone with Douglas.

6. The "Federalist Society . . . [i]s a group that doesn't take positions."

Amazing. So everything I've read about the FS spawning the "constitution in exile" is fallacious, eh?
 

Perhaps tongue-in-cheek, but maybe not.

"Tongue-through-cheek" might be more appropriate... :)
 

It is noteworthy that in the United States of America, there is much more public use of academic titles off campus than is common in the UK. I suspect this in part a US compensation for the absence of the titles and decorations given in other countries in recognition of the "great and good"

As an example, take Professor Lord Darzi, KBE, MD, FRCS, FACS (etc)

When he started out in his distinguished career, Darzi would have taken pride in being addressed as "Mr Darzi", because surgeons in the British Isles are addressed as "Mr" and not "Doctor" for the historical reason that the colleges of surgery evolved from the barbers and were denied the title "Doctor" by the jealous physicians. When he became a full professor, he would have been addressed as "Professor Darzi", when he was knighted for his Services to medicine and surgery he became "Professor, Sir Ara Darzi" and would have be addressed in speech either as "Professor Darzi" or as "Sir Ara" (first name only). Now ennobled as Baron Darzi of Denham, he is addressed in speech as "Lord Darzi" or "Professor Darzi".

Off campus and outside of medicine and surgery, no person in public life other than a tenured full professor uses his academic title. American practice seems to be rather more Germanic: eg "Dr Kissinger" (aka Dr Strangelove) and I recall seeing "Dr Condoleeza Rice" looking quite miffed when in Europe she was referred to as "Mrs Rice".

I suspect this US usage of academic rank in public affairs also stems in part from a public perception that academics are experts in their fields and ought to be listened to for that reason, while in England there is still more than a little public perception that academics are "mad professors or boffins" which only dissipates if they reach the emince of the nation's great and good in the House of Lords.

Perhaps it is a symptom of the US respect for academics and the good work done by established research foundations and think tanks, that the US far right hit on the idea of the 'political' foundation or 'think tank' - avowedly political institutions which pump out partisan propaganda and policy - yet still manage to enjoy tax exempt status.

The far right generously funds a whole slew of these - the American Enterprise Institute, the Heritage Foundation and the Federalist Society spring immediately to mind but there are many others involved in this right-wing propaganda effort. All are dressed up with the trappings of academia, but essentially they are marketing organisations - see this 1998 article Happy Birthday Heritage Foundation.

I recollect all this being explained by Richard Fink, then President of the Charles G. Koch and Claude R. Lambe Foundation, at a conservative foundation conference in 1995. Fink postulated that conservative ideology had to be marketed to the consumer - just like washing powder or any other product. He explained that the translation of "conservative" ideas into political action required the application of an economic model of the the production process to social change grant-making: (i) the development of intellectual raw materials, (ii) their conversion into specific policy products, and (iii) the marketing and distribution of these products to citizen-consumers using tried and tested marketing techniques.

Grant makers, Fink argued, would do well to invest in change along the entire production continuum by funding: (i) scholars and university programs where the intellectual framework for social transformation is developed; (ii) think tanks where scholarly ideas get translated into specific policy proposals; and (iii) implementation groups to bring these proposals into the political marketplace and eventually to consumers.

Over the past 25 years the far right conservative foundations have broadly followed such a model, investing hundreds of millions of dollars in a cross-section of institutions with the aim of achieving political and policy change. The money has been directed, inter alia, at the following areas: (i) the funding of conservative scholarship programs to train the next generation of conservative thinkers and activists and to reverse progressive curricula and policy trends on the nation's college and university campuses; (ii) the building and strengthening of a national infrastructure of think tanks and pressure groups with a major focus on domestic policy issues, and of institutes focused on supposed national security interests, foreign policy and global affairs; and (iii) the financing of sympathetic media outlets, media watchdog groups, and television, radio and web products for specific, issue-oriented public affairs and news reporting.

I suggest that what distinguishes these far right conservative "foundations" is the competence of their product marketing. Remember the message "Persil washes Whiter"? Housewives thought it meant "whiter than other brands" - but the actual comparator was "whiter than old-fashioned laundry soap" which, of course was true of all the competing detergent brands as well. There is an old adage that all marketing is based on exploiting the vices of the target audience, generally sex, envy or greed. Those are the vices the far right has been exploiting for the last 25 years selling their political ideology as if it were washing powder - and in the process they have even morphed the American language: "liberal" and "progressive" are now dirty words.

It is that morphing of the language which enables the propagandists to describe the American Bar Association as "liberal", so as to enable them to qualify the Federalist Society as "conservative" whereas it is really a very, very far right organisation which has as its objective a shifting of both the law and the judiciary towards the far right. Since the left has neither the funding nor the organisation to compete, they have done very well indeed - which is why one finds that the importance of SCOTUS decisions as persuasive authority in other common law jurisdictions is diminishing.

I remember how influential and persuasive SCOTUS judgments once were in the English Courts - alas no longer.

So my question is, how can US jurisprudence regain its prestige - surely it is going to take more than a few judicial appointments ?
 

@Mourad,

Good question. I'm not sanguine about the prospects, not so long as the likes of Scalia and Thomas clutter the bench.

@PMS_Chicago,

My bad; sorry to be so dense!

@Ross Taylor,

Not sure we've "met" before, but I quite enjoyed your post and will be looking forward to seeing more.
 

Mourad's take on academic titles reminds me of an incident before a local board hearing I attended. (By way of background, my LLB (1954) was converted to a JD many years later.) At the hearing, I questioned a comment made by a member of the board by referring to him as "Mr. X." The Chairlady immediately took me to task by saying "that's Dr. X." I responded that I did not know he had a medical degree and his nameplate did not indicate his "title," and further, since I was a JD, I would insist upon being referred to as "Dr." Shag rather than "Mr." Shag. (This all happened in Brookline.)
 

Shag:

On titles:

A traffic policemen tells the story of pulling over a black BMW driven by an elderly black man and asking the driver to get out of the car for a vehicle check.

As the driver got out, his overcoat came open revealing his purple stock and pectoral cross under his suit and it suddenly dawned on the officer that he had pulled over His Grace, the Lord Archbishop of York, the Most Reverend and Right Honourable John Tucker Mugabi Sentamu, PC, DD, LLB, FRSA, a Privy Councillor, a Member of the House of Lords and, after the Royal Family, 4th in the UK Order of Precedence - i.e. before the Prime Minister who comes 5th, the 97th holder of the see of York first held in 627AD by Paulinus a companion of Saint Augustine of Canterbury.

"Oh my God!", said the embarassed policeman. "Father, will be quite sufficient, my son." said the smiling Archbishop.
 

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Deborah

Term Life Insurance
 

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