The Federalist Society: From Obscurity to Power

Opening Round: The Courts of Appeals

By mid-March, a screening committee headed by President Bush's White House counsel, Alberto Gonzales, had interviewed more than 50 judicial candidates. According to press reports, the young lawyers who serve on this committee "typically have collected similar credentials for entry in that elite group; most have been law clerks for conservative judges and Supreme Court justices and are members of the Federalist Society..."125 Michael J. Gerhardt, a William and Mary Law School professor and recognized authority on the judicial selection process, assessed the key factors that appear to be driving the Bush administration's judicial nominations process. Describing the standards being used to evaluate potential nominees, Gerhardt expressed the view that the committee is looking for indicators "like the kinds of causes people have been involved with. They have to have some record of supporting the ideology and membership in the Federalist Society is one very strong indicator," said Gerhardt.126

Indeed, six of Bush's first 11 nominees to the influential federal courts of appeals have been Society members. Since the Supreme Court actually hears only a very small number of the cases that are appealed to it, the U.S. Courts of Appeals are frequently the last stop for critical cases on constitutional rights.127 In addition, the federal appeals courts serve as a kind of apprenticeship for future Supreme Court nominees. Seven of the current nine Supreme Court justices were serving on the U.S. Courts of Appeals when they were nominated to the high court. Given the significance of the federal appeals courts, the Bush administration's nominees deserve close examination. Several of these nominees who are Federalist Society members are among the most right-wing people tapped by Bush to serve in any capacity. For example:

  • Jeffrey Sutton, an officer in the Society's Separation of Powers and Federalism practice group, has been nominated to the U.S. Court of Appeals for the Sixth Circuit. Sutton is well known for his efforts to curtail congressional authority and limit federal protections against discrimination and injury based on disability, race, age, sex, and religion, as discussed earlier. As of July 3, more than 50 national and international organizations and over 220 regional, state, and local groups have opposed Sutton's confirmation, including the American Association of Persons with Disabilities, the National Rehabilitation Association, the National Women's Political Caucus, and the Welfare Law Center.128 As the Wall Street Journal recently reported, Sutton was described even by one of his supporters as the "perfect kind of poster child for what Democrats see as prototypical George W. Bush judges."129

  • Michael McConnell, a Society member nominated to the U.S. Court of Appeals for the Tenth Circuit, has drawn significant criticism, particularly for his views on reproductive choice and privacy and on church-state separation. For example, McConnell has called the Supreme Court's decision in Roe v. Wade "illegitimate" and "an embarrassment." McConnell signed a 1996 "Statement of Pro-Life Principle and Concern" that claimed that abortion "kills 1.5 million innocent human beings in America every year" and called for a constitutional amendment to ban abortion.130 McConnell has also called for a "radical" departure from decades of church-state separation rulings by the Supreme Court, such as decisions prohibiting government-sponsored prayer at public school graduations and limiting government endorsement of religious displays on public property.131
  • Priscilla Owen, a Society member and currently a justice on the Texas Supreme Court, has been nominated to the U.S. Court of Appeals for the Fifth Circuit. Owen has been criticized as one of two justices on "the far right wing" of the Texas court, further to the right than Bush's own appointees to that court when he was governor.132 In a Texas Supreme Court decision in which she dissented, Owen called for a very narrow view of a state law concerning the ability of minors to obtain an abortion without parental consent. Then-Texas Supreme Court Justice Alberto Gonzalez-who is now chief White House counsel-warned that adopting the dissenters' view "would be an unconscionable act of judicial activism."133
  • Carolyn Kuhl, a Federalist Society member and currently a state superior court judge, was recently nominated to the United States Court of Appeals for the Ninth Circuit. She has been severely criticized for her record on privacy and reproductive rights and on civil rights. For example, while in the Justice Department under the Reagan Administration, Kuhl urged the Supreme Court to overturn the Roe v. Wade decision as "flawed." She also reportedly played a key role in convincing then-Attorney General William French Smith to reverse prior policy and support a policy that would have granted tax-exempt status to Bob Jones University despite its racially discriminatory practices.134 A Supreme Court decision later rejected the Reagan administration's approach by an 8-1 vote.135
  • To get a sense of the tremendous shift that America could expect if the Federalist Society succeeds in controlling nominations for the federal courts, consider the state of Michigan, where Governor John Engler and five of the seven justices on the state Supreme Court are Society members.136 According to a survey of cases before that court in which private citizens faced off against insurance companies and corporations, the Michigan Supreme Court ruled against the citizen plaintiffs in 19 out of 20 cases. During the previous year, when moderate justices who were not Society members held a majority on the state Supreme Court, individual plaintiffs won roughly half of the time-prevailing in 22 of 45 cases.137

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