U of L Law Federalist Society Events

Some upcoming events that should appeal not only to lawyers but to non-lawyers who consider themselves constitutional conservatives:

• August 30 at 12:00. room 275 of the Brandeis Law School:  "Do Public Unions Cause the Public Harm?" The speakers are Prof. John McGinnis from Northwestern University Law School and Don Meade from Priddy, Cutler, Miller and Meade.  This event is co-sponsored by the Labor & Employment Organization. Certainly a timely topic after the events in Wisconsin.
• September 8, 12:00, also in room 275:  "Does the PATRIOT ACT draw the right balance between liberty and security?"  The speakers are Nathan Sales, Prof. of Law at George Mason and Prof. Marcosson from U of L Law.  This event is co-sponsored by the American Constitutional Society (the liberal clone of the Federalist Society).  Lunch will be provided.

The law students who have organized these events are our future.  Come support them with your attendance, and a job interview, if you are a member in a law firm that is hiring.

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Calling All Federalists

The Louisville Lawyers' Chapter of the Federalist Society and the U of L Brandeis School of Law student chapter will host a joint happy hour tomorrow, Wednesday, March 23rd from 5:30 to 7:30 at the Maker's Mark Lounge, 446 South Fourth Street.

If you believe in limited government, individual responsibility, the original intent of the Framers or just Bourbon, come join us.

Will Obama Appoint The Justice To Overturn Roe v. Wade?

President Eisenhower once famously said that his nomination of Earl Warren to be Chief Justice of the U.S. Supreme Court was "the biggest damned-fool mistake I ever made." Warren (as well as his associate, Justice Brennan, another Eisenhower appointment) turned out to be far more activist than Eisenhower had expected, such as when the Warren Court recognized far more expansive constitutional rights for criminal defendants than previously understood.

Warren is one of many members of the Supreme Court who surprised the Republican presidents who appointed them. In fact, the majority of the Court in Roe v. Wade were appointed by Republican presidents. Ironically, given that Roe has become such a cardinal of faith for the Democratic party, one of the two dissenters in the case was a Democrat who had been appointed by President Kennedy -- Justice Byron S. White.

Here is a excerpt from Wikipedia regarding Justice White's dissent:

Justice White wrote:

"I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court."

White asserted that the Court "values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries." Despite White suggesting he "might agree" with the Court's values and priorities, he wrote that he saw "no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States." White criticized the Court for involving itself in this issue by creating "a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it." He would have left this issue, for the most part, "with the people and to the political processes the people have devised to govern their affairs."

Now, what does all of this have to do with President-elect Obama?

A column of Russ Pulliam published yesterday in The Indianapolis Star ruminates on what we might expect from the Obama administration, based upon comments from Senator Evan Bayh. Pulliam suggests that Obama surprisingly may try to govern from the center:

Almost always the man in the political middle, Sen. Evan Bayh hopes he can swing President-elect Barack Obama away from left-wing temptations.

Having spent two hours with Obama for a vice presidential interview this summer, Bayh came away thinking the incoming president will look for what works. Yet Bayh knows the liberal wing of his party in Congress may try to pull the new administration leftward.
"He's more of a pragmatist," Bayh said in an Election Day interview with the Star Editorial Board.

When Obama ran the Harvard Law School review, Bayh added, "He picked three members of the Federalist (conservative) Society to be masthead editors." Obama did that not necessarily to make all sides happy, but to have a good publication.

Obama appoints Federalist Society members to the bench? It just might happen, if Obama (like the predecessor he admires, President Kennedy) chooses judges based on merit rather than an ideological litmus test. Granted, not all Federalist Society members support overturning Roe. But Bayh's comments suggest that it is entirely possible that Obama's appointments to the bench will produce judicial surprises to rival what President Eisenhower experienced.
Please note: The postings of "G. Morris", written by John K. Bush and which end in 2016, stated his views as of the dates of posting and should not be understood as current assertions of his views. The postings, which have not been altered since they came to an end, remain on this blog to preserve the historical record. In 2017, Mr. Bush took a position that precludes further public political comments or endorsements. He will no longer be contributing to this blog.

Federalist Society & Religious Liberty

The Federalist Society is holding a seminar Friday, March 14 at the Georgetown University Law Center in Washington, D.C. It's called "The Things That Are Not Caesar's: Religious Organizations as a Check on the Authoritarian Pretensions of the State." Rsvp here.

Thankfully, the excellent panel does not include the Archbishop of Canterbury. This seminar would be particularly helpful to those readers interested in intra-church disputes and the ensuing litigation over church property.

McCain and Judges

Federalist Society founder Steven Calabresi co-authored a column for the Wall Street Journal in which he opines that John McCain would do a better job picking strict constructionist judges than Mitt Romney. This is an important endorsement from someone with a long record of promoting the rule of law and opposing judicial activism; it should reasssure the conservative base if McCain gets the nomination.

Like many conservatives, I was troubled about McCain's role in the "Gang of 14." That did not seem to bode well for the type of judges he might appoint. So I was particularly interested in Calabresi's take on that issue:

Others are concerned that Mr. McCain was a member of the "Gang of 14," opposing the attempt to end filibusters of judicial nominations. We believe that Mr. McCain's views about the institutional dynamics of the Senate are a poor guide to his performance as president. In any event, the agreement of the Gang of 14 had its costs, but it played an important role in ensuring that Samuel Alito faced no Senate filibuster. It also led to the confirmation of Priscilla Owen, Janice Rogers Brown and Bill Pryor, three of President George W. Bush's best judicial appointees to the lower federal courts.

Conservative complaints about Mr. McCain's role as a member of the Gang of 14 seem to encapsulate all that is wrong in general with conservative carping over his candidacy. It makes the perfect the enemy of the very good results that have been achieved, thanks in no small part to Mr. McCain, and to the very likely prospect of further good results that might come from his election as president.

The Federalist Society web site asked the candidates to state their philosophy on judicial selection. McCain's response likewise reassured me that he will appoint strict constructionist judges:

I believe that one of the greatest threats to our liberty and the Constitutional framework that safeguards our freedoms are willful judges who usurp the role of the people and their representatives and legislate from the bench. As President, I will nominate judges who understand that their role is to faithfully apply the law as written, not impose their opinions through judicial fiat.

McCain's voting record reveals that he is not a recent convert to the ideals of the Federalist Society; he voted to confirm Judge Robert Bork. In arguing that he would only appoint judges who respected federalism and seperation of powers, McCain noted:

This is not a new position. I have long held it. It is reflected in my consistent opposition to the agenda of liberal judicial activists who have usurped the role of state legislatures in such matters as dealing with abortion and the definition of marriage. It is reflected in my longstanding opposition to liberal opinions that have adopted a stance of active hostility toward religion, rather than neutrality. It is reflected in my firm support for the personal rights secured in the Second Amendment.

When the next president is sworn in, six members of the Supreme Court will be older than 70 years of age. As Sloane writes (below), conservatives need to suck it up and vote Republican -- regardless of the name of the nominee.

McCain makes a convincing case that he would be a superb Commander-in-Chief, and that he will appoint judges who understand that their job is to interpret the law, not invent it. To be sure, these are not the only tasks of a president, but they are two of the most important.

Joe Sonka's Grim Commentary Lacks Grounding

Earth to DitchMitch.com blogger Joe Sonka: It was a joke, it was only a joke.

Sonka has gone apoplectic over Senator Mitch McConnell's description of himself as the "grim reaper" for bad liberal legislation that meets its death in the U.S. Senate. McConnell made the quip at last week's Federalist Society national convention to a roomful of laughs.

Sonka's reaction was: "I made a vow after I read that quote last night. I will devote every last second, every last amount of energy I have, every last drop of my blood, my very last breath, to making sure that Mitch McConnell does not serve another term in the US Senate."

Apparently it was Michael Moore who worked Sonka into his lather. Sonka reports that he had "just finished watching SiCKO" when he read an email account of McConnell's speech.

Sonka has a Michael Moore-like approach to facts: he invents them. First, he makes the curious argument that people will die if SCHIP is not enacted into law, and says McConnell is to blame. Sonka, however, fails to explain why circumstances are so dire for people with incomes that are four hundred percent (400%) above the poverty line -- the portion of the middle class that SCHIP would cover if Democrats expand it.

Sonka then asserts the whopper that "18,000 people die every year simply because they do not have health insurance." Perhaps Sonka should ask Dennis Kucinich where in the universe that statistic can be found. We will never know because the only authority Sonka cites for that number is himself.

But Sonka's creativity reaches its peak with an argument in which he implies that military and civilian casualties in Iraq have increased since Saddam Hussein was deposed and again, McConnell is to blame. Sonka turns a completely blind eye to the people who are the culprits for the vast majority of violent deaths in Iraq since Saddam: Al-Qaeda.

Perhaps Sonka needs a primer on the organization that directed the 9/11 attacks and is responsible for numerous atrocities in Iraq and around the world. Iraqi deaths from Al-Qaeda have dramatically abated since the U.S. troop surge. But like the Khmer Rouge, Al-Qaeda can be counted on to turn Iraq into killing fields if the United States abandons Iraq as it did Southeast Asia in the 1970s.

Sonka must also be unaware of the number of people who died under Saddam Hussein's regime: 600,000 civilian executions and another 500,000 military deaths -- a figure that far dwarfs the losses since Saddam was driven from power.

Sonka can say whatever he wants to criticize American involvement in Iraq, but he is flatly wrong to claim that killing in Iraq has gone up since Saddam was deposed. Nor should Sonka make the false claim that deaths in Iraqi would be lower if the U.S. military beat a retreat.

The repercussions if Sonka and his like caused America to claim defeat in Iraq would be devastating for the people of Iraq and the United States. And that's no joking matter.

Justice Thomas Meets the Bush Boys

It's not often that our children get to meet an honest-to-God hero, but today they met such a man, Justice Clarence Thomas of the Supreme Court of the United States, who spoke to the national convention of the Federalist Society.

In his remarks, Justice Thomas discussed his memoir, My Grandfather's Son, and the many Americans he has met as he travels around the country to sign the book. He then took questions from the audience. Granted, this group of conservative lawyers was a friendly crowd, so the standing ovation and applause came as no surprise. Justice Thomas, however, interspersed numerous one-liners with commentary on everything from the confirmation process to natural rights jurisprudence to his marriage.

"He's really funny," my ten-year old, Eric, observed. "I didn't expect him to make everyone laugh." Christian, my 12-year old, was struck by the Justice's "patience and persistence" in overcoming adversity.

Following the q & a, we asked Justice Thomas to sign our copies of his memoir. After he signed Eric's copy, Eric said, "Can I ask you a question?"

"Of course," Justice Thomas replied, ignoring the several hundred people in line to have their books signed.

"If you could change one part of the Constitution, what part would you change?" Eric asked.

Justice Thomas stopped signing books and reflected on the question. Then he said, "I don't think I'd change any of it. How about you -- what would you change?" he asked.

Eric considered that and said, "I don't think I'd change anything, either."

"Then we agree," Justice Thomas said, "that we have a pretty good Constitution just the way it is, right? And you know, it's shorter than the warranty for your watch."

Then Justice Thomas gave Eric an assignment: "I want you to go and look up the constitution for the European Union and see if it's longer than our Constitution. Then you write and tell me, OK?"

Eric agreed to do so, shook the Justice's hand and said good bye. As he was leaving, Justice Thomas stopped signing the next book and said to Eric, "You won't forget?"

His aide took me aside and said that the Justice was sincere about wanting to hear from Eric.

The whole exchange underscored a point that Justice Thomas had made in his remarks. He loves to talk to people of all ages and backgrounds, but he especially enjoys questions from children. "Some of their questions are so innocent, it just gets you thinking," he said.

As my kids observed, this powerful jurist is funny, patient and persistent. Despite all liberal smears to the contrary, he is exceedingly bright. Liberal reviews of his memoir describe him as a bitter, angry man, but we saw none of that. He demonstrated a cheerfulness and the peace that comes from knowing that even adversity cannot destroy hope.

The characteristic that has always struck me about Justice Thomas is his tremendous humility. Like him or not, he is one of the most important people in the country. And yet he listened to my little boy's question, really listened without any condescension -- nothing but kindness and courtesy.