The Rise of the Federalist Society and the Erosion of Justice

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.

Comments

[Heyman]

The Federalist Society should be called the CORPORATION Society. These appointee's from Republican Presidents are a "shoo in" for the Corporations of America. Anyone who doesn't believe the facts? Are living in Disneyland. The injustice will continue, in our Federal Courts. Until WE had enough.

[CivilRightsFan]

It’s not about being Republican or Democrat; conservative or liberal. It’s about being human. Regardless of our political affiliations, as human beings we should all care equally about individual rights. We should all want people to get equal pay and to be treated with respect on the job. I am a Democrat, but I know plenty of Republicans who believe in equality too.
This isn’t a problem with Republicans or conservatives as a whole. It’s a problem with a niche of conservatives – the Federalists. Perhaps instead of focusing on conservative vs. liberal, we humans (regardless of our political affiliation) need to band together against the Federalists. Maybe if we get some conservatives who believe in equal rights on our side, we can send a better message? Perhaps if we try to educate conservatives about what the Federalist Society really is, we can try to dissuade any more from joining hands with that group. There are plenty of anti-ACLU organizations out there, why not start an anti-Federalist one? It’s certainly true that the Federalists are taking over the courts. Read Jeffrey Toobin’s The Nine, as he points out the move by Federalists to take over the courts has been a long time in the making. It’s not too late yet, but the 2008 election is crucial. We need to make sure the American public – Republicans and Democrats – understand what is happening in the judiciary so they can cast an educated vote.
Thanks for the blog. This is exactly the kind of blogging we need to open people's eyes.

[realpolitic]

An "activist" judge is anyone who disagrees with the conservative point of view.

[rudyacuna]

Just 20 years ago the federalist society would have been called the John Birch Society. Today through a well orchestrated shell game it is called conservative.

[Sundialsvc4]

It is amusing to think that the Congress could "overstep its constitutional bounds" by extending a law that it had already passed. Congress is, after all, the law-making body of this land.

The Judiciary does not have the power to make law, not even by creative interpretations of law including but not limited to the Constitution. In fact, one might say that the power to declare things "unconstitutional" is .. unconstitutional.

Sorry, but "Congress really IS 'where it's at.'"

[WilliePilgrim]

Never trust your ability to function in a car that doesn't bave both a gas and brake peddle.
While the progressives bash the conservatives over ideology, the pressure of big government on one side and the the complete absensce of government on the other side, leaves us all in peril from the undefined problems which emerge as surely as the sun rises.
The essence of having people at liberty to form different solutions for the problems as they percieve them is the ultimate good for society in that we've prepared against the age old problem of extinction due to the appearance of the unforseen vis a vis "all our eggs in one basket". Variety in all things is more than nice. It's a strategy for survival.

[bradford]

Lefties be afraid! Bush's appointment of right -wing judges,translation judges who don''t legislate from the bench but actually obey the constitution and respect the rights of taxpayers and property owners our country's
most oppressed minority group.This Bush's greatest achievement and the best reason for voting Republican.The Left knows it can''t achieve it's agenda through the democratic process so control of the judiciary is vital.
Well kids it's all slipping away.As Robert E. Lee said after the repulse of Pickett's charge
''Too bad, too bad, too bad.''

[furion4865]

Any Democratic member of the Senate Judiciary could have done their homework on the Federalist Society and gleemed that organization's extremisim. And let's stop calling these people "conservatives," isn't that just a polite way of saying racist, sexist and homophobic? Anyone that isn't a WASP male is the enemy to these people and a few token uncle tom negroes like Clarence Thomas doesn't change their white supremacist ideology. Being a member of the Federalist Society should be an automatic disqualifier for serving on the Supreme Court, they're views are so extreme there's no way these people can rule on a case objectively, and this has been further evidenced by the Supreme Court's willingness to overturn long-standing legal precedence. What in the hell was Charles Schumer thinking when he voted to confirm Roberts and Alito? Either he's stupid, lazy, or on some level condones Roberts and Alito's views. If I was I a white guy, I certainly would have supported them, since it now seems that protecting the rights of the majority is the only mission of the federal judiciary. In my opinion, membership in an extremist group like the Federalist Society shows a total dearth of sensitivity towards the life aspirations of those other than white males and a lack of judicial objectivity that should be fatal to a Federalist Society's nominees placement on the federal bench. These people views are a helleuva lot more extreme than Lani Guiner's supermajority voting proposals and she didn't even get a vote. Oh, that's right, she's black.

[CaveatMagnusFrater]

We will fight them again and again. Forging unions was a deadly endeavor, yet we let collective bargaining slip away because we could not be inconvenienced. Any established adult who laments the work ethic of the younger generations is whistling into the wind. We have made hard work and struggling for worker's rights necessary for our progeny. Our grandfathers did the work, we reaped the benefits, our grandchildren will do the work again. What a generation I live in.

mike

[syzito]

Since the federal courts have been left thinking for the past 30yrs what is wrong with a few right thinking ones?

[AIPAC]

We don't need "conservative" or "progressive" judges. Judges shouldn't legislate from the bench. We need judges to uphold the constitution. States rights are one of the aspects that make this country great. Federalism in creases sovereignty, and defines us as a republic. After all, our form of government is not democracy, we are a representative republic.

[mommadona]

This is literally the alpha and omega of the beast.

The word of law.
Literally.

New buzz phrase heard from Karl "I never met a chad I wouldn't kiss" Rove:

"Integrity of the Ballot"
He's pushing voter fraud big time.

[AMolinaro]

Has anyone ever looked into connections between the Federalist Society and the old States' Righters? At a glance, they both seem to be hiding behind gross perversions of the Founders' intentions is their quest to pursue racism, misogyny, and other 19th century ideals long rejected by the vast majority of America.

This is truly Orwellian stuff, and I thank you for bringing much-needed attention to the dangers these extremists pose to our country.

[MsLiz]

Thank you from a lawyer. Your article may not attract a lot of attention here (since it doesn't offer an opportunity to bash any candidates) but I consider this a crucial issue in the 2008 election.

[realitytrumpsbull]

I think we just might see the dollar crash,
in 2009, depends on how stupid people are
with the federal spending. Then, it won't
matter what your political affiliation, you'll
be broke like everybody else, and, what's
better, with no more federal funding, all
of the communist/foreign interests strongholds
that used to call themselves american
universities will actually have to become
trade schools where people will need to learn
how to make things, not for export, but for
regular daily use. When the dollar crashes
because no one wants to pay for entitlements
anymore, and the debt goes completely runaway,
we'll be back to bartering. What do you think
the odds will be of importing oil then?
Woohoo! This'll be fun...just think, no more
people making a career out of living off of
welfare, no one coming to the United States
anymore, sorry, we're closed, please take your
globalization sob story somewhere else, and
no, our Congress is not the United Nations,
sorry for the confusion, somebody put up the
wrong sign, yeah, we get a lot of calls about
that, I think it'll be 'morning in america'
indeed when career basket case political groups,
countries, and people have to start doing
for themselves a little more, and whining a
little less. Everyone gets an equal opportunity,
24 equal opportunities per day, and I say
'good on the corporations' that took their
fortunes and bolted. Would you stick around
while the United States of America gets
converted into Welfarestan by whiners with
big lobbying groups? 9 trillion, and counting...