The Anti-Federalist Society

By Daveed Gartenstein-Ross and Nels Peterson
The Weekly Standard
Oct. 2, 2006

Law school Lefties have all the Right stuff.

ON SEPTEMBER 8, the American Constitution Society announced the formation of its first official law journal, the Harvard Law & Policy Review. According to the letter, the new journal “will be a forum through which many esteemed legal scholars, advocates and policymakers will rigorously engage and discuss America’s most pressing legal and policy issues.”

The Harvard Law & Policy Review boasts that it will feature “rigorous debate and discussion” and “differing perspectives.” The first issue will include a point-counterpoint between Sen. Chuck Schumer and former federal judge Patricia Wald–a liberal Democratic senator squaring off against a liberal Democratic-appointed judge. If those perspectives don’t differ enough for you, fret not: other contributors listed by the ACS are former Clinton administration official Neil Kinkopf, former Clinton administration official Ron Klain, former Clinton administration official Elaine Kamarck, Harvard law professor (and liberal blogger) Elizabeth Warren, liberal law professor (and blogger) Geoffrey Stone, and liberal political scientist Jacob Hacker. The Harvard Law & Policy Review states, without a hint of irony, that “[t]his breadth of authors reflects our commitment to providing a platform to introduce and discuss new approaches to legal and policy issues.”

But perhaps more remarkable than the journal’s mission statement or its definition of “differing perspectives” was the journal’s name, which bears a striking resemblance to the law journal most closely tied to the conservative and libertarian Federalist Society, the Harvard Journal of Law & Public Policy.

This is not the first time the ACS has done its best Federalist Society imitation. The group was founded in 2001 for the express purpose of countering the Federalist Society’s two-decade-long effort to mitigate liberal hegemony in law schools and on the federal bench. The organization originally called itself the Madison Society, slyly evoking the Madison-profile logo of the Federalist Society. Eventually, however, the group settled on a name that merely represented the triumph of the Federalist Papers.

Over the years, the ACS has also imitated the Federalist Society’s form: local campus chapters supported by a D.C.-based headquarters, featuring a great number of debates on campuses and an annual convention in Washington, often with the express purpose of enabling students to network with each other and meet federal judges.

The ACS promoted a research project called “The Constitution in 2020,” a direct reference to the Reagan-Meese Justice Department’s “The Constitution in 2000″ project for judicial-restraint that drew on the efforts of early Federalist Society members.

Imitation is, of course, the sincerest form of flattery. But since the ACS is running out of Federalist Society ideas to imitate, we modestly submit the following proposals:

Catchphrases. Conservatives have gotten good use out of the verb, “Borking”–i.e., the unfair blocking of a qualified judicial nominee. ACS members could start describing the thwarting of their preferred judicial nominees as “Kaganing,” in honor of Harvard Law School dean Elena Kagan, whose nomination to the federal bench by President Clinton never escaped the Republican-controlled Senate Judiciary Committee. Likewise, the conservative mantra “No More Souters,” could be modified to warn against the dangers of nominating stealth conservatives. Although, “No more Byron Whites” doesn’t quite have the same ring.

Replace the ABA. President Bush allegedly displaced the American Bar Association in the judicial nominations process, giving the Federalist Society the power to “vet” judges. Should a Democrat be elected in 2008, the ACS should push for similar authority. Of course, given Ed Whelan’s writings on the subject, replacing the ABA with the ACS might not make much of a difference.

Get it in writing. The Federalist Society was founded to promote respect for the rule of law as set forth in the written Constitution. The ACS should consider identifying a foundational document for its own reference. As they already have the word “Constitution” in their name, they could pick whichever constitution they find most compatible with their legal theories. Since many liberal legal scholars are proud experts on foreign law, the ACS should have plenty of options.

Daveed Gartenstein-Ross is a senior consultant for the Gerard Group International and author of the forthcoming book My Year Inside Radical Islam (Tarcher/Penguin). Nels Peterson is a former executive editor of the Harvard Journal of Law & Public Policy.

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