WASHINGTON Lino Graglia was standing in a meeting room at the Mayflower
Hotel, and he was hopping mad. The only question was, Why?
Mr. Graglia, a self-described "far right" law professor at the University
of Texas, was attending the Federalist Society's 20th anniversary gala at what
could only be called a triumphal moment. The Federalist Society, a group of conservative
lawyers and academics, has emerged from obscurity to become perhaps the most powerful
force in the law today.
Over four days of panels and soirees, the Federalists were the toast of official
Washington. Members of the Bush cabinet, including Attorney General John Ashcroft,
joined in the festivities. And Justice Antonin Scalia mused to a packed banquet
hall, "Who would have thought 20 years ago that that little organization of students
at a couple of law schools would have evolved today to a power of such proportions?"
At the legal panels, administration officials fell over themselves to say
what the crowd wanted to hear. At a business-law panel, a top Justice Department
lawyer talked about settling the Microsoft
antitrust case, a move applauded by conservatives, who saw the suit as Clinton-era
interference with the prerogatives of big business.
But to Mr. Graglia, the administration's business-friendly line sounded like
so much liberal claptrap. During the question period, he demanded to know why
the administration was bothering to enforce antitrust laws at all. "It really
is time to be bold," he insisted. "The boldest thing to do would be to repeal
all the laws."
Mr. Graglia wasn't the only conservative who was suffering. A woman stood
up to declare herself "dissatisfied and frustrated" because the panel had not
attacked the states for suing tobacco companies. A law professor fulminated against
state attorneys general, like Eliot Spitzer of New York, who, by crusading to
clean up the Enrons and WorldComs of the world, have become self-appointed securities
commissioners.
I must admit that when I headed down to Washington last week, I was expecting
to encounter a good deal of gloating. The last time I spent any time with the
Federalist Society crowd was on the Harvard Law Review, where a claque of right-leaning
law students used to hang out late into the evening, grumbling about affirmative
action and the New Deal.
But now this same crowd is setting the nation's legal policy and selecting
its judges — with a freer hand than ever since the Republicans retook the Senate.
They are using their informal network to place conservative true believers in
influential positions throughout the federal government, from Supreme Court clerkships
to top agency posts. In fact, one of the late-night Harvard Law Review grumblers
from way back when, Miguel Estrada, is now a Federalist Society favorite for the
next vacancy on the Supreme Court.
Given the Federalists' remarkable good fortune, I had expected the banter
to be heavy with congratulations and plans for the future. But much of the rumbling
in the hallways was of grudges' being lovingly nursed and of potshots' being fired
against liberal enemies long ago vanquished.
Before one event, a graybeard in the audience tutored a wet-behind-the-ears
Federalist on the horrors of Travelgate, in which the Clinton White House did
— well, nothing much, really. At the black-tie banquet, a satirical song took
aim at "Brennan, Marx and Lenin." William Brennan, the Supreme Court justice who
was being gleefully branded a communist, died in 1997.
The search for fictive liberal enemies reached a loopy low on the convention's
last day, when an archconservative federal appeals court judge, Laurence Silberman,
accused William Rehnquist's archconservative Supreme Court of having a secret
plan to declare the death penalty unconstitutional. In an opinion just last month,
the court reiterated its view that capital punishment is constitutional even for
16-year-olds.
But the event that most captured the spirit of the week was Kenneth Starr's
speech and his introduction by Barbara Comstock, the head of the Justice Department's
Office of Public Affairs. Between them, Ms. Comstock and Mr. Starr managed to
rail against Bill Clinton, James Carville, Lanny Davis, James Jeffords, Alan Dershowitz,
the Warren court, trial lawyers and Barbra Streisand.
Mr. Starr was particularly exercised about liberals' being result-oriented,
abandoning their principles to reach the outcomes they favor. But he would have
made a more compelling case if he had not proceeded to abandon his — and the Federalist
Society's — own oft-repeated commitment to judicial restraint to praise the Supreme
Court for striking down the Gun-Free School Zones
Act and the Violence Against Women Act in a burst of conservative activism.
What was the take-away, as meeting planners like to say, from the Federalist
Society's big convention? First, if these are the folks choosing federal judges
for the Bush administration — and they are — Senate Democrats and moderate Republicans
need to be vigilant about investigating nominees' backgrounds, and using the filibuster,
to prevent a far-right takeover of the courts. Second, Democrats and moderate
Republicans in both houses will need to stand up for mainstream principles that
are now under assault, like antitrust law and health and safety regulations. And
finally, a point of sportsmanship: the only thing less appealing than a sore loser
is a sore winner.
Copyright The New York Times Company
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