october 2004

"People have to understand, whether they like lawyers or not, law schools have an enormous amount of power, whether it's power for good or evil. Unfortunately, what we are seeing under the Federalist Society is law schools and legal education being used to promote racism, bigotry and Right-wing politics. These people believe in the Bell Curve," says Prof. Boyle of the University of Illinois, referring to a controversial theory by Charles Murray and Richard J. Herrnstein about the supposed low intelligence level of some non-Whites. "You have to understand that. Just as the Federalist Society did to the federal judiciary, they are now trying to do
to law schools."

Boyle and others say this is done by establishing well-endowed law professorships and speaking tours for the true believers. "Where they once were scholars with Right-wing foundations like the Heritage Foundation, American Enterprise Institute and the Cato Institute, they are now getting credentialed as law professors," he notes.

No comparable movement exists among progressives, which may explain why civil rights groups and liberals are doing such a feeble job defending affirmative action.

"We've got to realize that while we have been dillydallying in law schools with critical race theories and penetrating the Law Review, all this is chump change to [Federalists]," observes Berry, of the U.S. Commission on Civil Rights. "It's like we were out playing whiffle ball while they were exercising power."

The Federalist Society was founded 17 years ago by Yale Law School student Steven G. Calabresi and two counterparts at the University of Chicago School of Law, Lee Liberman and David McIntosh. All three were undergraduates together at Yale. Upset with what they perceived as liberal bias, the three decided to form an organization for conservative law students. Yale professors Robert H. Bork and Ralph K. Winter, both of whom would be appointed to the federal bench by Ronald Reagan, served as advisers to the Yale chapter. In Chicago, future U.S. Supreme Court Justice Antonin Scalia served in a similar capacity.

The contacts the three made as students have proven to be invaluable. Calabresi, in addition to clerking for Bork and Winter, clerked for Scalia at the Supreme Court. He is now a law professor at Northwestern University.
Liberman gave up a post in the Justice Department also to clerk for Scalia. She is now Lee Liberman Otis and is chief counsel for Sen. Spencer Abraham (R-Mich.), who founded a Federalist Society chapter at Harvard. McIntosh was a special assistant to Ed Meese when he was Reagan's attorney general; he is a three-term Republican Congressman who's considering running for governor of Indiana. In addition to a board of trustees, the society has a board of directors, co-chaired by Calabresi and McIntosh.

The Federalist pipeline is a well-oiled old boy -- and sometimes girl -- network. For example, Brent O. Hatch, the son of Sen. Orrin Hatch, clerked for Robert Bork when he was a federal judge in Washington, D.C. After working in the Justice Department, young Hatch was appointed general counsel of the National Endowment for the Humanities at the age of 28. He is treasurer of the Federalist Society's board of directors.

The organization has been funded by wealthy conservatives, such as Richard Mellon Scaife, who is vice chair of the Heritage Foundation's board, and another board member, Holland Coors, a member of the conservative Coors family. Many contributions are made through foundations that give to Right-wing causes, including the John M. Olin Foundation in New York, the Sarah Scaife Foundation in Pittsburgh, the Lynde and Harry Bradley
> Foundation of Milwaukee and the Deer Creek Foundation in St. Louis. The Federalists have direct ties to Right-wing think tanks seeking to dismantle affirmative action at the local, state and federal levels. The Center for Individual Rights, which successfully argued the Hopwood case that banned affirmative action at the University of Texas, represents plaintiffs in a lawsuit pending against the University of Michigan and were lawyers for supporters of Proposition 209, the anti-affirmative action measure in California. The Washington Legal Foundation sued the University of Maryland, forcing it to drop its Benjamin Banneker scholarships for African-American scholars; the Southeastern Legal Foundation is leading an all-out assault on affirmative action in Atlanta, and the Institute for Justice led the attack on Lani Guinier, then a University of Pennsylvania law professor, who was President Clinton's first choice to be assistant U.S. attorney general for civil rights. Clint Bolick, the group's vice president, dismissed Guinier as a "quota queen," and the eventual nominee, Deval L. Patrick, as a "quota king." He also led the opposition to the appointment of Bill Lann Lee, who was later named acting assistant attorney general for civil rights.

When first lady Hillary Rodham Clinton said that there was a "vast Right-wing conspiracy" afoot that had been hounding her husband since he first announced for president, some Right-wingers almost laughingly dismissed her charges. Special Prosecutor Ken Starr called the comments "nonsense." And Boston Herald columnist Joe Fitzgerald said the first lady had "wandered into paranoia." But information developed by the Institute for Democracy Studies, a nonprofit research and education organization in New York, confirms that
the first lady was on the mark.

In the executive summary of its report, "The Assault on Affirmative Action: An Organized Challenge to Racial and Gender Justice," the organization notes, "Once a month at the Heritage Foundation, representatives of the nation's leading conservative law groups get together for a 'luncheon.' This so-called Public Interest Legal Group meeting is just one of several monthly gatherings that right-wing law groups hold." The report continues: "These meetings serve the purpose of avoiding duplication of effort, airing future plans, and providing guidance for an appropriate organizational division of labor."

In an interview with Emerge, Todd G. Young, director of research and communications for the Atlanta-based Southeastern Legal Foundation, confirms that Right-wing groups collaborate. "We read each other's briefs (as they are filed) and when there are updates published by other groups," he says. "Although we are separate entities, we share some common understandings about the Constitutions and our (mission) statements are really almost identical for the organizations."

Of its recent lawsuit against Atlanta's affirmative action program, Young notes: "We're refining the definition of what it means to enjoy equal protection under the law and the first step is to end any government-sanctioned discrimination, such as affirmative action programs or racial preference programs. It's philosophically inconsistent to say it was bad then [in the 1950s and 1960s] but it's OK now."

Atlanta Mayor Bill Campbell says it's not OK to discard programs devised to address discrimination against African-Americans. "Conservative legal interest groups, such as the Center for Individual Rights and the Southeastern Legal Foundation, are striking at the very heart of the civil rights gains of the '50s and '60s," explains Campbell. "These groups are, in essence, a homogenized version of the Klan. They may have traded in their sheets for suits and use different language, but it's the same old racism -- just old wine in new bottles."

The Federalist Society takes its name from The Federalist papers, 85 articles originally published in New York newspapers between 1787 and 1788. The authors -- Alexander Hamilton, John Jay and James Madison -- were attempting to gain popular support for the adoption of a new Constitution. "Is The Federalist the key to what the Constitution's framers and adopters intended it to mean and how they expected it to function?" asked R. B. Bernstein, a constitutional historian who wrote the foreword to The Federalist, a recent reissue of the papers. "This subset of the original-intent controversy tends to pit many historians, who remain dubious about original-intent arguments, against many legal scholars, who seek a way to limit judicial discretion by anchoring constitutional interpretation in the Constitution's origins." Bernstein argued that the public should not look at the essays, all written under one pen name, as the definitive word on how the Constitution should be interpreted. "Jay was not a delegate to the Federal Convention, which framed the Constitution...[Hamilton] left the Convention in July, not returning until two weeks before its close in September. And Madison...found himself outvoted on a host of major issues," Bernstein noted.

Moreover, as The Federalist papers became the classic commentary on the Constitution, the three men publicly identified themselves as the authors. Even that was not without controversy. Before his ill-fated duel with Aaron Burr, Hamilton tried to take credit for writing papers 18-20, 49-58 and 62-63. Madison made an identical claim of authorship, which was verified through a computer analysis in 1964.

The most damning fact about today's Federalists is that they advocate a limited role for the federal government, while the early founders were interested in establishing a strong central government. Some civil rights leaders, including Theodore M. Shaw, associate director-counsel of the NAACP Legal Defense and Educational Fund Inc., view the rhetoric of the modern-day Federalists as smokescreen for an assault on civil rights. "It's ideologically out of the mainstream and a part of the radically conservative agenda and the radically conservative agenda has never served the interest of African-Americans," Shaw says. Hilary O. Shelton, Washington bureau chief of the NAACP, is less charitable: "They are not conservative. They are very consistent with the Council of Conservative Citizens," a White supremacy group that has featured Senate Majority Leader Trent Lott (R-Miss.) and Rep. Bob Barr (R-Ga.) as speakers.

Surprisingly, some of the harshest criticism of Federalist Society members has come from Republicans. For example, former Attorney General Meese, a main player in the Federalist movement, has been criticized by some of his colleagues in the Reagan administration. According to The Washington Post, James A. Baker III and Michael K. Deaver referred to Meese as the "Big Bigot," and conservatives referred to his top assistant, T. Kenneth Cribb Jr., as the "Baby Bigot." Cribb sits on the board of directors of the Federalist Society and is a trustee of the Scaife Foundation, a major contributor to the Federalist Society and other Right-wing causes.

Graglia, who has taught at the University of Texas since 1966, touched off a controversy two years ago, when he said, "Blacks and Mexican Americans are not academically competitive with Whites in selective institutions." According to Graglia, "It is the result primarily of cultural effects. Failure is not looked upon with disgrace." He maintains his membership in the Federalist Society. "They certainly are unenthusiastic about civil rights laws," he says of his organization. "Richard Epstein [a law professor at the University of Chicago] thinks we will be better off if civil rights laws were all repealed. These people do believe, as I believe, that so-called civil rights have gone too far and are not civil rights at all."

Because so many of the Federalist Society members are seen as opposing civil rights, some people are not quick to accept their professed interest in color-blind justice. U.S. Appeals Court Judge Stephen Reinhardt of the 9th Circuit observes, "We had the Civil War over states' rights. There is no question we are going back to the pre-Civil War view of governments." > Former federal Judge Lawrence Walsh puts it more bluntly. "The impression I have is they are trying to return to the 18th century and undo the work of the Supreme Court since the New Deal," Walsh says. "And I think it is wrong to put someone on the court who has a pre-commitment
with a political dogma, whether it's the Ku Klux Klan or the Federalist Society."

Additional reporting by Lottie L. Joiner

PS: HIJACKING JUSTICE: FEDDIES >
Almost all of the lawyers involved in the torture scandal are members of the Federalist Society, or Neo-Cons, or both.- -Professor Francis Boyle