Unlikely Bedfellows: Blogging the Federalist Society Convention III

Okay, it’s become clear to me that some folks think this whole Federalist Society annual conference thing is interesting. This raises the ugly specter that somebody other than yours truly may be reading my briefs. So I’d better make a couple things clear.


First off, yeah, I’m name-dropping. That’s ‘cuz most of the folks on the panels, and fully half the people in attendance are “names”. I’m not a name. In fact, I’m a very small, not particularly clever fish who likes swimming among these sharks & whales of the legal world, because I think they are swimming in the right direction. I’m just some lawyer dude who practices, among other things, administrative and constitutional law, such as it is.
Second, yeah, this stuff is interesting in a macro-sense. Of course it’s amazing. It’s not often that you get to see top flight thinkers taking their model ideas, and flying them up into the air to fight like Chinese fighting kites. The unique thing the Fed Soc brings to the mix is the debate is spin-free. You can espouse about any idea, but you had best bring some good rational basis for it, preferably some text. It’s civilized too – the ACLU rep often gets as much applause as Ken Starr. You won’t see that at an American Constitution Society meeting.
Third, it’s an honor and a privilege to be able to serve in some capacity in public life, and I like the Fed-Soc convention because getting to listen to these incredibly distinguished, brilliant men and women, brings that home to me again and again. It inspires me to do better, and to aim up and out from my relative mediocrity.
That thing about being privileged to serve is important to remember. Whether you are a soldier, or a teacher, or a lawyer in government or private practice, you had better remember that you are privileged to be able to serve. You have had special titles, honor and benefits conferred on you; and in return for this public trust, you owe the rest of us something. As a threshold matter, you have a special moral duty to the folks who look to you to leadership. Your obligations are met if and only if you are right, correct, and good (in a moral sense) in your official actions. And if you can’t be right, then you’d better do your damnedest to try and be right.
For a lawyer, being “right” means doing due diligence, and exploring all the ways you could solve problems better. You see, in a common law country, every case you are ever involved in, becomes precedent for all future cases. Our court rulings are mainly determined by statutes, and previous court rulings committed to paper. So if you half ass it, you degrade the system by putting in second rate legal work, by poorly serving your client, and by letting down “the team”, the legal profession. This is especially true if you half ass it and win, in which case your second rate argument and third rate writing becomes enshrined in a published opinion, which other lawyers have to rely on to advise clients and argue in court. I don’t mind saying that I’ve been disabused of a number of stupid ideas, simply by listening to good debates; and I’ve had to learn the underpinnings of a lot of philosophical and legal opinions I hold still because my beliefs were challenged by a speaker in a debate.
Yeah, the life of the mind is a wonderful thing in and of itself, but as a lawyer, my ideas can do things, and I am ever so grateful for that opportunity, and wary of the challenges it poses.
Anyhow, off to the Federalist Society Conference.
The first panel today was on the left liberal slant of the legal academy. I thought at first that telling Federalists about the liberalism of law school staff would be like selling refrigerators to Eskimos, bringing coal to Newcastle, etc. “No thanks, we’ve already got it.” I wasn’t disappointed. Prof. John O. McGinnis from Northwestern Law discussed a paper he’s working on, tracking the political donation rates of law professors across the country. He found that around 60% of law professors give money to politicians. Of that number, around 78% donate exclusively to Democrats, and around 14% donate exclusively to Republicans. Hmmm… that’s a wee bit polarized, don’t you think? I like this analysis better than the registered voter analysis, which doesn’t really test degree of ideological commitment. And truthfully, I went to a school where the ratio of registered Dems on the faculty to registered Republicans was, literally, 100:1, yet I knew a number of liberal faculty who were open minded, and some who were closed-minded idiots. So the 100:1 number was less informative than McGinnis’ 78:14. Eminent critical legal theorist Mark Tushnet from Georgetown… didn’t really say anything. Honestly.
Dean Ronald Cass from Boston U. Law talked about the hiring process, as did National Journal’s Stuart Taylor. They said some smart stuff about the pipeline – if the prof doesn’t agree with you, you’ll get lower grades; you won’t get a cherry clerkship; you won’t get in the teaching pipeline. Cass also talked about the economic motivations of conservatives – why teach, when you can rake in money like leaves? Cass also had one of the funniest lines of the day. He said “I teach in Boston, which as you know is the town that is across the river from Cambridge, Mass (where Harvard sits – an oblique comment on Harvard’s ego). “The two towns are separated by the Charles River. Now, you may not know this, but Boston sits on the left bank of the Charles. In fact, we’re the only town in the world, with a river that has a left bank, and a far left bank.” [Howls].
The most interesting viewpoint came from George Washington Law Prof Johnathan Turley. Now, he’s a liberal chap, but a strong scholar. You may remember him as a talking head from the Clinton impeachment era, a millenium ago. At the time, he appeared to have his lips firmly planted on the Clinton posterior. Yet Turley broke from his liberal peers when that infamous letter signed by 450 or so law professors and historians argued that impeachment was improper, that it was only available for really big crimes like treason, and that it didn’t apply for acts not in the official performance of the presidential duties. Turley attempted to get the letter reformed, along with some peers. They argued that the letter made up alleged law from whole cloth, that nowhere in the Constitution or the law did it say such things, and it was intellectually dishonest to say so. When the drafters, led, I believe, by Arthur Schlessinger and Yale Law Prof. Bruce Ackerman, refused to yield, Turley publicly criticized them, arguing that such (dishonest) letters lowered the tone of public debate. Well, at that point, all hell broke loose, and Turley recounted a Whittaker Chambers-esque tale, about how many of his liberal friends just don’t talk to him any more. A bigger problem than mere political bias, Turley said, was the whoring out of “law professor” status on the firm legal basis of “because I voted for the guy” — and this low-rent hooker-ing degrades debate, and turns the law into just a political process, a set of spoils to be captured rather than an important social institution. At this point, Prof. McGinnis chipped in, and said “you know, we actually looked at that letter, and whether a prof was a Democrat donor was a statistically significant indicator of participating in that letter process. Oddly enough, being a con law professor was not a statistically significant factor.” In other words, the folks passing themselves off as experts in constitutional law were not actually con law professors to any significant degree; although there was a strong correlation between letter participation, and giving to Dem political causes.
Toward the end, moderator the Hon. Douglas Ginsburg (D.C. Circuit Court of Appeals, I think) opened up the floor for an exchange, and none other than the Hon. Alex Kozinski (9th Cir. Court of Appeals) stated that he didn’t think the liberalism of the academy hurt any of his clerks. After all, they went through law school, and came out just fine. Judge Ginsburg then said that his advice on it, was “quit whining.” John Leo, from U.S. News and World Report, then argued that what was important was for conservatives to counterattack. Young conservatives need to position themselves to be attractive candidates for teaching, by going to the top schools, busting their butts, getting good grades and a clerkship, getting a substantive legal paper published after law school, and then applying after 2 to 6 years of practice. Paraphrasing him, “only when there is a critical mass in law schools will an undeniable viewpoint diversity be achieved.” That perhaps was the only really useful thing I learned out of the whole panel – if we’re interested in the academy, we need to fight for our stake in it, and not relinquish the battlefield. Leo also pointed out the insanity of the Law Prof letter writing campaigns, reminding us that Judge Bork was painted as well out of the mainstream on antitrust law – when it was Judge Bork who brought coherence to that field, literally re-defining it and developing the mainstream with his 1978 book, The Antitrust Paradox.
Secretary of Labor Elaine Chao then spoke. She warned about the influence of non-governmental organizations (NGOs) on U.S. law, through the international treaty process. By way of example, she cited the revoked U.S. ergonomic standards, which will be re-issued after OMB finishes cost-benefits analysis, and subsequent modification. That revoked reg is now being pushed by the UN, at the behest of the NGOs, as a basic human rights standard. Ooooh, that’s not good, especially given the tendency of our activist courts to use novel international law ideas as a normative standard in American law. Chao suggested that transparency is the cure to most government ills, and argued that we really need to look closely at how the NGOs we listen to are funded, and coordinating with other NGOs, especially multi-laterally. Her basic argument is that regulation by NGO is an unaccountable, anti-democratic process, and we have to beware, lest we doze off and awake to find our fundamental rights pissed away by some lunatic conference on special rights for some favored group.
The first afternoon panel (out of several optional panels) was on Immigration and the War on Terror. It featured former INS Commissioner Ziglar, Homeland Security’s Officer for Civil Rights and Civil Liberties, Daniel Sutherland; Greg Katsas, who litigates the 9/11 detention appeals for U.S. Department of Justice, and Tim Edgar, Immigration and National Security Law Counsel for the ACLU. Commissioner Ziglar led off with a discussion of the history of immigration law, focusing on past troubles, like the Alien and Sedition Acts, the Know-Nothings (anti-Catholic immigration, 1840s), the Anti-Chinese acts (1880 – 1945), the Palmer raids (red scare, 1920s); and the detention of the Nisei (1942). His argument is that we really need to study the history of these past problems, look at how we screwed up and how we fixed things, and try to find our answers in that. Nothing is new under the sun, at least insofar as immigration policy goes.
Mr. Edgar then spoke about the ACLU’s concerns, and it’s lawsuits to force DOJ to release the names of those detained. He argued that secret trials are always wrong, we need more disclosure, and that the deportation process has features that are incompatible with our traditional notions of fair play and fundamental justice. I actually agreed with him, and wasn’t surprised when he cited how difficult it was for detainees to get access to counsel, and the fact that some detainees were abused – not systematically, but by individual detention center employees. Mr. Edgar also discussed the pleasure he has felt, in his evolving understanding of conservatives. In the wake of 9/11, he’s found a lot of conservatives who love the constitution, and love liberty, and although they don’t always agree, and they often get to the same conclusion via different interpretive methods, the end result is the same – a lot of dedicated effort, within and outside the Bush Administration, to preserve the Constitution. Edgar also talked about the ACLU’s good friend at Homeland Security, Daniel Sutherland.
Sutherland’s speech was pretty good – he talked a little about the policy and oversight role of his office, and a lot about the stress the agency is putting on preserving civil liberties, and Secretary Tom Ridge’s frequent reminders to his crew that “we will not sacrifice our enduring liberties, for the sake of temporary security.” See Benjamin Franklin. Sutherland also talked about how innovation will be necessary, and encouraged those in the audience to send good ideas about how to preserve civil liberties while ensuring security to the agency. He pointed to the bankrupt and “increasingly sterile” civil rights arguments (and their statist counterparts) and said we have to move past that – the old overweening police role being improper, the radical individualist model being inadequate. Sounds like a tough balancing act to me… but if the ACLU is happy about the direction of it…
Greg Katsas talked about the detainee cases – the 900 or so immigration law violators and material witnesses held after 9/11. He pointed out that DOJ was responding to the access to counsel and detention standards problems, and that the aliens weren’t denied access to counsel – if they asked for it, they could get a lawyer, or talk to their family. (DOJ just didn’t want to release a list of detainee names in response to ACLU’s very broad FOIA request, due to the ongoing investigation, and DOJ’s not knowing where the investigation was leading in the months right after 9/11). Outdated pro bono counsel lists were further barriers to counsel, and the general secrecy was put in place so as to not jeopardize the large post-9/11 investigation. His big argument was that private litigants aren’t in a good position to answer such questions. True stuff all – and it made me wonder if DOJ isn’t in the hardest spot of all government agencies. They did screw some stuff up with the detainees, and a lack of prophylactic attention on the then-INS detention standards was just plain wrong – but Katsas says they are working hard to ensure that they don’t overreact in the future. He cited FBI Director Mueller speaking at the last national ACLU conference as part of the effort to walk the line better.
I think the upshot of this panel is that there were some screwups in the wake of 9/11, but nothing like the vast overreactions of the past. Most of the situations allowing the screwups are presently being remedied… but we never know what novel situation we’ll have to face in the future. Moreover, counsel for the ACLU isn’t terribly unhappy about how things are going, only the usual moderately unhappy. (Granted, he’s not a fundraiser whose success is predicated on scaring the bejeebus out of us, but still).
The final panel of the day questioned whether the commerce clause, which permits congress to regulate commerce between the states (interstate commerce) permits most environmental regulation. Judge David Sentelle (4th Circuit Court of Appeals) moderated; oh my, what a card he is. Under the commerce clause, Congress can regulate things “in interstate commerce”. Figuring out what, exactly, is in interstate commerce, is problematic. For a while, it wasn’t “interstate” if it didn’t cross state lines. Then, it wasn’t “commerce” if it wasn’t sold. Then, even if it was a grain of wheat, if the cumulative effect of the activity (growing grains of wheat in one’s back yard) could have an effect on an interstate enterprise (the farming of wheat), well then, it was in commerce.
Today, the thing has to have some nexus with interstate commerce. Merely possessing a gun near a school zone, or kicking your S.O.’s butt, isn’t in commerce. But if you take a gun across state lines, or get in a fistfight at a highway rest stop, then congress has the power to regulate it. This is part of the enumerated powers doctrine. Congress can only regulate what we allow it to regulate, and the powers listed in the Constitution are supposed to be a limited list, not a starting point. In theory, anyhow.
The problem for environmental law is that some things move interstate, and they are easy to regulate – waters for instance. But what about a bug that, in Judge Sentelle’s words, “is a notorious homebody”, only found on a tiny patch of land?
Professor Percival of U. Maryland argued that the general futility of commerce clause challenges, because they always lose. Professor Eastman of Chapman School of Law, and a litigator, argued that the challenges are not futile; the words interstate commerce must mean something, and only if the constitution means nothing, can they be as malleable as Professor Percival would like. Further, it took 70 years of “futile” litigation to get Plessy v. Ferguson, the “separate but equal” case, overturned.
Professor Echeverria of Georgetown had the most problematic argument. He postulated that Title 11 of the North American Free Trade Agreement permits foreign countries to go to a NAFTA administrative court located in a foreign country, file a claim against the United States in that court, and gain an executable judgement that the U.S. is obliged to pay under NAFTA – all without ever being reviewed by a federal court or subject to Congress’s say-so. But there could be trouble collecting; or we could find ourselves in the bizarre strait, where a federal court endorses Congress’ usurpation of federal court power, denying itself the right to exercise its own powers. At the end, Prof. Echeverria postulated that successful litigants in the NAFTA court will have to ask the question asked by Reverend Taggart in Blazing Saddles: “Oh Lord. Do we have the strength to carry on this mighty task in one night? Or are we just jerking off?” He didn’t say that, but that’s what I thought of; I believe the good prof asked whether Congress was serious? Or if it’s just a pig in a poke. Or pie in the sky. Or some folksy saying, I can’t remember. Reverend Taggart said it better anyhow.
The final event for the day was the Barbara Olson Memorial Lecture, and a reception. Judge Robert Bork was the speaker. He rocks. A lot of what he said, my re’glar readers – all three of you – will be familiar with. He talks a lot about the importance of strengthening our institutions, and of why the debasing of our culture will in the end destroy our liberties. There was too much good stuff to repeat, so you aren’t getting a full brief here, sorry. The two salient points, however, were too trenchant to omit.
First, the courts and the culture aren’t in a vacuum. They both “do business” in a form of dialogue, back and forth. The culture just informs the courts, and vice versa. The problem is, citing (I believe Walter Bagehot (that’s “badge-it” for you movement conservatism illiterates)) “the Olympians”. These people are not just the elites; they are the people who deem themselves the enlightened ones, who shall lead us by their enlightenment, from their lofty and successful heights. They will teach and lead, we shall follow. And it’s these Olympians who have captured the academy, the law schools, and many of the courts, including unfortunately the Supreme Court. The problem with this, is that it’s step #1 on the road to totalitarianism. Friedrich Hayek talks about this in The Road to Serfdom. As soon as you have that central power, that elite arrogating power to itself to centrally direct and control society, freedom is out the window. Bork sees this happening with the increasing influence of mumbo-jumbo jurisprudence. He points to Kennedy’s statement in Lawrence v. Texas, which found a constitutional right to commit same sex sodomy. At one point, Kennedy says that government can’t tamper with the individual’s understandings of the mystery of life, the ability to define meaning for one’s self, etc. Quoting Bork, “if one must define meaning for one’s self, then there is no meaning. . .” Lit Crit scholars will recognize the trope as deconstructionism – which Bork then described as “the uneasy marriage of nihilism with marxism.” Think about that – we aren’t talking about German nihilist film students, we’re talking about the Supreme Court in the most powerful nation in the world, insisting that there isn’t permanent truth, right and wrong, just a sacrosanct process by which everybody searches for meaning. The culture will hear this…
The other point is that we’re in a life or death struggle for the courts, and the nation right now. The stakes are high. We are at culture war, and thanks to our independent ability to define meaning, a lot of us are free to deny it. The nihilists – the Olympians – want to redefine the culture to suit themselves. This radical individualism naturally implicates the destruction of the old social institutions, because the old institutions insist on the permanence of some things, of right and wrong, and as long as these things exist, then the Olympians aren’t free to make things up as they go along.
And that was the point that really sunk in for me. How many times in the last year or two, have we listened to these peacenik assholes insisting that if we just wish for peace hard enough, it will happen. The same rot that has infected the court (“we can’t interfere with the individual’s ability to define meaning for himself”) has taken good hold in the culture, resulting in the sad fact that half our race is too frigging stupid to exist. Not only that, but the dummies, the intellectually weak, un-rigorous people, the long hairs who go on about legitimacy and authenticity, but rage that the traditional institutions (like marriage, church, and quaint little neighborhood associations) are illegitimate and inauthentic – these folks own the courts, half the electorate, and the whole legal (and general) academy.
Oh, but this is so depressing. Bork admitted as much. But he also reminded, that it isn’t our duty to win the fight, necessarily, though that’s our goal. Rather, it’s our duty to fight to our utmost, and to fight, and fight, and fight some more if necessary.
The stakes are high folks. The stakes are high.

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One comment

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