Saturday, December 2, 2006

No Secrets Here: Federalist Society Plots In the Open

Conservative Legal Group Focuses on Judiciary to Come

By David Montgomery
Washington Post Staff Writer
Saturday, November 18, 2006; C01

Election? What election?

The pinstriped tribe of conservative legal minds called the Federalist Society -- more than 1,000 of whom gathered at the Mayflower Hotel this week -- is playing a much longer strategic game. Yesterday they had Sen. Arlen Specter at breakfast, Homeland Security Secretary Michael Chertoff before lunch and Vice President Cheney at cocktail hour. The message: full speed ahead with the movement.

"Some people now have taken up the idea that, really, the Federalist Society is kind of like a modern-day da Vinci conspiracy, a secret society that controls all the legal jobs and all the legal decision-making in the administration," Chertoff quipped. "And of course that is nonsense."

Of course.

Except, um . . . what about all those Cabinet secretaries, White House lawyers, Justice Department memo writers and appeals court nominees who are so tight with the society? Not to mention Supreme Court Justice Samuel Alito, a longtime Federalist and Thursday's dinner speaker.

As Cheney said, to big, big applause from the audience of more than 600: "And I assure you, nothing that's happened in the last two weeks" -- what election? -- "will change [President Bush's] commitment to nominating first-rate talent like John Roberts and Sam Alito."

A society executive vice president took time off last year to help the administration with court confirmations. These are people who consider Alito's age, 56, do the actuarial math, and smile: This Federalist is likely to be interpreting the Constitution for another quarter-century or so. That's the long game.

The annual three-day convention was the time to take stock of how far the Federalists have come since they set out to change the debate in America 24 years ago -- another longish game, which they are playing superbly.

The Federalist Society for Law & Public Policy Studies started with a group of conservative and libertarian law professors and students in the Midwest and elsewhere who saw what they believed was a great liberal-activist orthodoxy ensconced everywhere from the classroom to the courtroom. The Federalists believed in limited government, separation of powers and, as stated in their intellectual battle slogan, that "the province and duty of the judiciary is to say what the law is, not what it should be."

Now the group claims about 40,000 members and associates, student chapters on all 180 or so law school campuses, and 70 more chapters for lawyers and judges. The budget from foundations, individuals and corporations is about $7 million.

The intellectual jousting has taken place in the open, with student chapters inviting conservatives to debate tweedy liberal professors.

"If there's a real secret, it's a secret to me, too," said society President Eugene Meyer.

So no secret handshakes in the Mayflower this week. Just the lawyer's uniform of charcoal or blue wool, and everywhere the black silhouette of James Madison, the patron saint of the society -- looking left, by the way. The hotel was thick with Democratic filibuster-bait: Priscilla R. Owen, Brett M. Kavanaugh, William H. Pryor Jr. -- all appellate judges with past confirmation battles.

"It's a great morale boost for me to get out of California and come to the real world," said William J. Emanuel, a lawyer from the Los Angeles chapter.

Washington? The real world? Emanuel said he meant the real intellectual world of the society.

The Federalists like to debate, and they take pride in disagreeing, a hallmark of intellectual honesty, they say.

At the panel yesterday morning on "Executive Power in Wartime," for example, Richard Epstein, a professor at the University of Chicago Law School, said that "the president's claims to extensive powers . . . are woefully overstated. . . . This is a country of limited government, and this is sounding awfully despotic to me."

John Yoo, a University of California at Berkeley law professor and former Bush administration lawyer responded by asking, "Would you be willing to reverse all these decisions Lincoln made on his own authority?" referring to Lincoln's power grabs in the heat of the Civil War. In wartime, he said, it makes sense for the executive branch to have "a fair amount of room to run."

Which brings us back to Cheney's speech, and the little matter of those elections.

Cheney's talk was the sixth annual lecture in memory of Barbara K. Olson, who was killed in the Sept. 11, 2001, attacks. Her widower, former solicitor general Ted Olson, who recently remarried, was in the audience.

The traditional theme of the address includes "limited government," but Cheney enumerated the many ways government power has been expanded to fight terrorism. Judging by the applause-o-meter, many Federalists agree with the administration's choices, including wiretapping suspected terrorist international calls.

"Some in our country may believe in good faith that retreating from Iraq would make America safer," Cheney said. "Recent experience teaches us the opposite lesson."

The Federalists admired the vice president as much for his message as for his steadfastness, wherever the political chips may be falling. Here was a man arguing from principle, they said, not politics. The vice president was playing the long game, too.

"No matter what happened a couple weeks ago, he made it clear why we need to do what we need to do," said Jeffrey Eilender, a lawyer from New York.

As for what actually did happen on Election Day, Eilender continued, "I don't see a lot of depression. The sense I have is we're very gratified for what has happened on the Supreme Court and the [federal appeals] courts."

The Federalists seemed possessed of the same old idealistic energy. One panelist compared intellectual property to sex -- an analogy we cannot pretend to grasp, but a ballroom full of Federalists chuckled knowingly.

"I feel good," said Robert Paul Koehler, a lawyer from Crawford, Colo. "I'm at a convention where people are talking about issues. Good smart people, and you hear both sides."

As for Republican losses at the polls, maybe they deserved it, Koehler said. "What happened to the Republican Party, it was no longer standing up for first principles."

How un-Federalist of the GOP.

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