November 24, 2002
Hell Hath No Fury Like a Conservative Who Is Victorious
By ADAM COHEN
ASHINGTON — 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.