Empower Wisconsin | March 25, 2020
By Scott Walter, Townhall
A big-name politician is taking over a leading group for liberal lawyers: Russell Feingold, the former Senator who gave his name, along with Sen. John McCain’s, to the last major campaign finance reform bill.
As Feingold assumes leadership of the American Constitution Society, he steps into a firestorm that’s brewing over the Federalist Society, the leading lawyers’ group for conservatives, which faces growing assaults.
Why attack the Federalist Society? Because one of its leaders has played a significant role in weakening the power of liberal judges to impose their will on the rest of us.
Since at least 1953, when Earl Warren became Chief Justice of the U.S. Supreme Court, activist judges have often violated their constitutional duty to leave law-making to the people’s representatives who are elected to the legislative and executive branches. Instead, judges have legislated from the bench, forcing their policy preferences on the rest of us.
Supporters of this judicial malpractice face a challenge: Most Americans agree with the traditional, limited understanding of judges’ role. That’s why liberal nominees to the Supreme Court like Elena Kagan and Sonia Sotomayor know that to be confirmed, they must promise Senators they won’t legislate from the bench.
Americans’ passion for this view of judges is so powerful that it significantly boosted Donald Trump’s 2016 campaign for President. Since then, he has successfully placed over 190 judges on the federal courts who have insisted, with more believability than Kagan and Sotomayor, that they will not confuse judging with legislating.
The Left isn’t pleased by that, so it’s attacking persons who’ve led the fight to install those judges. A top target is Leonard Leo, who recently stepped down from his longtime post as vice president of the Federalist Society, which champions neutral judging.
The most insidious assault has been launched via an obscure entity known as the Committee on Codes of Conduct of the U.S. Judicial Conference, which is weighing a “draft opinion” that urges judges not to be members of the right-leaning Federalist Society or the left-leaning American Constitution Society that Feingold will head.
For now, the Committee says its ethics antennae aren’t ruffled if judges merely attend events at either Society, so long as judges are not actually members. Supposedly, judges’ non-membership will avoid the appearance of partisanship. But if the Committee were genuinely concerned about partisanship, it would fret about its member John J. McConnell Jr., because he’s a longtime political donor to and ally of Sen. Sheldon Whitehouse (D-RI), one of the Federalist Society’s loudest critics and himself a fierce partisan. Judge McConnell has shown his partisan colors by donating, along with his wife, almost $700,000 to Democratic candidates in his prior life, when he was a trial lawyer.
Legal expert Ed Whelan notes that the Committee eschews transparency and prefers to operate in the dark: it doesn’t even post its membership. You’ve almost certainly never heard of it, but you can easily see how the Federalist Society’s enemies hope to exploit it: they will cite the Committee’s “opinion” and claim that any association with the Society renders a nominee unfit to be a judge.
“Are you now or have you ever been a member of the Federalist Society?” will be the McCarthy-like cry.
Read more at Townhall.com
Scott Walter is president of the Capital Research Center in Washington, D.C.