Wednesday, October 19, 2005

The Federalist in the Closet

In today's OpinionJournal, Judge Bork sets forth his thoughts on the Miers nomination. Although Bork makes several good points it is his discussion of the impact of the nomination on young conservative legal-types (such as myself) that I find most compelling:
For the past 20 years conservatives have been articulating the philosophy of originalism, the only approach that can make judicial review democratically legitimate. Originalism simply means that the judge must discern from the relevant materials--debates at the Constitutional Convention, the Federalist Papers and Anti-Federalist Papers, newspaper accounts of the time, debates in the state ratifying conventions, and the like--the principles the ratifiers understood themselves to be enacting. The remainder of the task is to apply those principles to unforeseen circumstances, a task that law performs all the time. Any philosophy that does not confine judges to the original understanding inevitably makes the Constitution the plaything of willful judges.

By passing over the many clearly qualified persons, male and female, to pick a stealth candidate, George W. Bush has sent a message to aspiring young originalists that it is better not to say anything remotely controversial, a sort of "Don't ask, don't tell" admonition to would-be judges. It is a blow in particular to the Federalist Society, most of whose members endorse originalism. The society, unlike the ACLU, takes no public positions, engages in no litigation, and includes people of differing views in its programs. It performs the invaluable function of making law students, in the heavily left-leaning schools, aware that there are respectable perspectives on law other than liberal activism. Yet the society has been defamed in McCarthyite fashion by liberals; and it appears to have been important to the White House that neither the new chief justice nor Ms. Miers had much to do with the Federalists.
I am not (yet) a member of the Federalist Society, but that's because my conversion was still in progress during my law school years. (Being a Deadhead, one must presume there was a conversion at some point -- teenage conservatives don't generally go for the Dead, though Ann Coulter may be an exception). I respect both the means and the ends of the Federalists and agree with Bork that this nomination is something of a slap in the face. This, of course, comes on the heels of the Roberts nomination, during which the administration treated potential membership in the Federalist Society as akin to membership in McCarthy's communist party. With the Miers nomination -- and revelations concerning her studied disassociation from the Federalists -- we now know who was behind that shameful episode.

Other takes at House of the Dog (who apparently shares my disgust with the "she's pro-life hence anti-Roe argument), House of Cakeboy, Captain's Quarters, and the DailyPundit.