The Federalist Society: From Obscurity to Power

Right-Wing Lawyers Who Are Shaping The Bush Administration's Decisions On Legal Policies and Judicial Nominations

Introduction

When President George W. Bush took office, many pundits predicted that his narrow margin of victory, his loss of the popular vote, and his moderate-sounding campaign would lead him to govern from the political center. Yet Bush began almost immediately to confound this prediction with a series of actions-especially in the areas of family planning, the environment, and nominations-that seemed to have been taken directly from the right wing's playbook. Within just a few months after the new president took office, pundits and political observers were eating their earlier words, now noting that Bush was building the "most conservative administration in modern times." 1 Right-wing groups have voiced great pleasure at President Bush's efforts to assemble a team that one ultra-conservative leader described as "more Reaganite than the Reagan administration."2

Early predictions of moderation proved wrong largely because observers failed to take into account a very important factor: President Bush's reliance for policy and staffing decisions on members of key right-wing organizations, notably the Federalist Society for Law and Public Policy Studies. When President Bush broke his campaign promise to regulate carbon dioxide emissions, that decision was based on a controversial report requested by one of the Society's founding members.3 When right-wing leaders attacked the potential nomination of conservative Montana Governor Marc Racicot to be attorney general, it was a leading Federalist Society activist who wrote the memorandum that proved critical in torpedoing Racicot's hopes.4 In the end, the post went instead to former Senator John Ashcroft, an extreme conservative and Society member. Today, many Society members are working in the White House counsel's office, at the top levels of the Department of Justice and in other high administration posts.5

Not yet 20 years old, the Federalist Society exerts a powerful influence. Despite its protestations that it is little more than a debating society, media from across the political spectrum agree that the organization carries tremendous clout. The Washington Times' Insight magazine identified the group as the "single most influential organization in the conservative legal world."6 An article in Washington Monthly identified the Society as "quite simply the best-organized, best-funded, and most effective legal network operating in this country. … There is nothing like the Federalist Society on the left."7

The Society's status is reflected in the list of people who are members of, or otherwise affiliated with it. This list includes: Attorney General John Ashcroft; Department of Energy Secretary Spencer Abraham; Department of the Interior Secretary Gail Norton; Senator Orrin Hatch, the ranking Republican on the powerful Senate Judiciary Committee; Solicitor General Theodore Olson; former Independent Counsel Kenneth Starr; and former Christian Coalition President Donald Hodel, who also served as secretary of the Energy and Interior departments under President Reagan (see Appendices for a more extensive list).8

There is nothing illegal or unethical about an administration being so heavily staffed and influenced by individuals who are affiliated with a single organization. However, the American people deserve to be fully informed about any organization that has assumed such a central role in shaping policies and determining appointees for the Bush administration. Contrary to the charges of Federalist Society members, there is nothing inappropriate or McCarthyite about such an effort to inform the public. Indeed, if the organization in question were People For the American Way, it's a safe bet that Federalist Society members themselves would be vigorously arguing that Americans should closely examine the values and goals that guide the organization.

To better inform the public debate, this report explores the Federalist Society and its members and allies-examining their legal and policy objectives, their prevailing philosophy, as well as the kind of impact they could have through their influence within and outside the Bush administration on the law, the courts, the Constitution and ordinary citizens.

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