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November 11, 2005
No One Pops The Bubbly At The Federalist Society

The New York Times reports on the mood at the Federalist Society, the gathering of conservative attorneys that found itself having to defend its existence twice this year as the White House inadvertently fed a media bias against them as extremists. Despite the confirmation of one well-regarded conservative jurist to the Supreme Court and the nomination of another, David Kilpatrick describes a rather guarded sense of accomplishment by the conservatives at the heart of the movement to return the court from its direction as a superlegislature:

These might seem the best of times for the Federalist Society, the conservative lawyers' group established two decades ago to counter what its founders considered the liberal bent of law schools, bar associations and the federal courts. ...

But at the convention, among the 1,500 scholars, advocates and judges, a number of whom had been on the shortlist for the Supreme Court, the mood was anything but jubilant.

"What is there to be jubilant about?" asked Edward Whelan, the president of the Ethics and Public Policy Center and a former clerk for Justice Antonin Scalia. "We have a Supreme Court that has been essentially lawless in so many respects for decades now, and a lot of work has to be done to restore it to its proper role."

I think the mood is appropriate to the occasion. After all, despite what appears to have been two very successful nominations (sandwiching a mystifying third, failed attempt for a political operative), the truth is that Bush has mostly played on home turf with the Supreme Court. Much has been made about replacing O'Connor as a swing vote, but O'Connor more often went right than left during her tenure when swinging away. The damage she did sprang from her inconsistency, a great example of what happens when a jurist approaches precedential law without a philosophical point of view on the role of the Court and the law.

That, among other reasons, was what created so much objection to the Miers nomination.

Bush won't get a chance to move the court to the right in a significant manner unless one of four liberal judges retire during his term of office -- Souter, Ginsburg, Breyer, or Stevens. Being 85 years old, Stevens may provide the best chance for Bush to make a sea change at the Supreme Court, and that will temper any calls for a filibuster on Alito. The Democrats will need to keep the threat to force a moderate appointment from Bush to replace Stevens if the occasion arises. The Federalists, meanwhile, recall the Miers nomination and the way the White House threw the Federalists under the bus during the last two nominations -- and don't hold much hope for a Luttig or McConnell nomination for any subsequent opening.

Still, we have added two high-quality and compelling young conservatives to the court, and that beats what we would have seen from a Democratic president or a DNC-controlled Senate. We need to keep an eye on the bench over the next two years and act in 2006 to protect a conservate majority in the Senate with the requisite courage to support a Janice Rogers Brown or a Luttig to the next opening for the Supreme Court. Otherwise, we will find ourselves back to the Souters and Kennedys, at best.

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Posted by Ed Morrissey at November 11, 2005 6:18 AM

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