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The Rise of the Federalist Society and the Erosion of Justice

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Title VII of the Civil Rights Act of 1964 is the nation's most important employment law--prohibiting discrimination in employment on the basis of race, color, religion, sex or national origin. In 1991 Congress extended Title VII's protections beyond private employees to include state employees as well.

But two weeks ago a federal appeals court issued a technical ruling in Alaska v. EEOC holding that Congress overstepped its constitutional authority in extending Title VII's landmark civil rights protections to state workers. The case strikes a blow to tens of thousands of workers. Yet it is only one ruling in a string of decisions that have closed the courthouse doors on civil rights cases.

What may come as a surprise to some readers is that the case comes from the Ninth Circuit Court of Appeals, the federal court that has been decried by the right-wing as "liberal". Those on the right think these judges wear pink robes, live on the "left" coast and cause most of the problems in our society. The "Ninth Circus", they say, is "out of touch" with the rest of the country. There have been enormous efforts to appoint right-wing judges to the Ninth, as well as attempts to split the circuit in order to isolate California and the few remaining moderate judges. The efforts to pack the courts with right-wing judges paid off: the three judge panel in Alaska v. EEOC was split 2-1 with the two Republican appointees in the majority.

Stacking the federal courts with right-wing ideologues is drastically undermining the laws as we know them. Recall last term's decision in Ledbetter in which the 5-4 majority of the Supreme Court held that Ms. Ledbetter's Title VII suit was time barred because she didn't file her complaint within 180 days of the decision to pay her less than her male counterparts. Never mind that Ms. Ledbetter had no way of knowing that she was being discriminated against until she received an anonymous note after years of receiving lesser pay.

So, who is leading the charge in pushing right-wing appointments? A close look at recent appointments shows that the Federalist Society is at the center of these efforts. According to People for the American Way, "since its inception, the Federalist Society has played a key role in advancing the right-wing agenda. As an ideological proving ground for ultra-conservative activists, lawyers, and scholars, the Federalist Society has long served as a valuable professional network for those on the Right..." And what a network it is.

The Federalist Society

About a quarter of Bush's early judicial appointments were recommended by the Washington headquarters of the Society. In 2005, 15 of the 41 federal appeals court judges who were confirmed by the Senate identified themselves as members of the Society. Half of the Justice Department lawyers hired for the Civil Rights division were members of the Society. Other notable Federalist Society appointments include John Ashcroft, Gale Norton, Ted Olson, Michael Chertoff, and Justices Scalia, Roberts and Thomas.

In fact, the court-stacking has been so successful that last Friday the Society threw a great big fancy party celebrating their 25 years of triumph. Speakers included President Bush along with Society members Justice Roberts and Justice Thomas. As usual, the Society members complained bitterly about "activist" judges over their fois gras.

President Bush blasted the Senate over his "stalled" nominations to the federal courts and urged members of the Senate to capitulate. Never mind that 12 of 14 federal appellate courts are already dominated by judges appointed by him, his father and President Reagan. In fact, according to our partner the Alliance for Justice, 7 of 14 federal appellate courts are two-thirds or more Republican appointed. And these judges have an agenda.

The scariest part of the celebration came when Rudy Giuliani promised the Society even more "conservative" judges.

I'm going to give you 200 reasons why the next election is really important. It's the 200 federal judges that the next president of the United States will likely appoint over the four years in the White House.

According to Giuliani, his picks would be like Justices Scalia, Thomas, Alito and Roberts, the four most "conservative" justices. (I put conservative in quotes because these judges are anything but "conservative.") Giuliani's picks would oppose "racial quotas", thrust the 10 Commandments into public spaces, and require the words "Under God" be used in the Pledge of Allegiance. Not to mention overturn Roe v. Wade (forget about the fact that this man wears a dress). The not-so-diverse crowd at the Society celebration broke out in golf-claps that lasted minutes. Giuliani then gave a few of the Society members the secret handshake and took off to the next event.

When Will the Madness Stop?

So, with 426 days left in Bush's presidency, what's next for judicial appointments? One might think that not a lot can happen. After all, won't the Senate stop the courts from shifting even further to the right?

Not so. Progressives should be prepared to face a last push for right-wing nominees. Leslie Southwick's recent nomination is a case in point. Southwick's nomination was widely opposed by civil rights groups for his abysmal record on the rights of workers, people of color and the LGBT community, among others. But thanks to Republican Senator Dianne Feinstein (ignore the misleading "D" in her title), Southwick now has a lifetime appointment to the Fifth Circuit Court of Appeals.

We can expect several more right-wing nominees. For example, President Bush recently nominated Steve A. Matthews for a Fourth Circuit seat. Mathews is a former state chapter president of the Federalist Society and, until he was nominated, served on the board of directors for the Landmark Legal Foundation, known for nominating Rush Limbaugh for a 2007 Nobel Peace Prize. There are several others who fit the mold and we should pay close attention.

As a result of ideological appointments, the federal benches have shifted dangerously to the right. The courts are increasingly unavailable for the average person to enforce rights, like the state workers who now lack the protection of Title VII. The National Campaign to Restore Civil Rights is working with our partners to reverse this rollback and reclaim our courts.