THE FEDERALIST SOCIETY AND MOVEMENT CONSERVATISM: HOW A FRACTIOUS COALITION ON THE RIGHT IS CHANGING CONSTITUTIONAL LAW AND THE WAY WE TALK AND THINK ABOUT IT Jonathan Riehl A dissertation submitted to the faculty of the University of North Carolina at Chapel Hill in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the department of Communication Studies. Chapel Hill 2007 Approved by: Advisor: J. Robert Cox Reader: V. William Balthrop Reader: Carole Blair Reader: Sally Greene Reader: Lawrence Grossberg Reader: John Harrison ABSTRACT JONATHAN RIEHL: The Federalist Society and Movement Conservatism: How a Fractious Coalition on the Right Is Changing Constitutional Law And the Way We Talk and Think About It (Under the direction of J. Robert Cox) This study is the first in-depth examination of the Federalist Society, the nation’s preeminent organization of conservative and libertarian lawyers. Founded by a few enterprising young college friends in the early days of the Reagan administration, its participants now number 40,000 lawyers, policymakers, judges, and law students. The Society functions as a forum for debate, intellectual exchange, and engagement between the factions on the right as well as their liberal opponents—hence my use of rhetorical theory. I explore how Federalists have promoted conservative legal theories of interpretation, such as originalism and textualism, and also how have also fueled the broader project of the American right to unmake the liberal consensus on a wide range of legal and social issues from Affirmative Action and race to foreign policy. By serving as a forum for the generation and incubation of conservative legal thought, the Federalist Society has provided an invaluable intellectual proving ground; and with chapters now active at all accredited law schools in the country, the Society is widening its reach and providing a home for aspiring conservative lawyers, whether they seek to go into private practice, public service, or the judiciary. This is the Federalist “pipeline”: an ever- expanding network that spreads conservative ideas. It is the engine that drives the boldest Federalist goal: changing legal culture. ii I examine how Federalist conservatives are making headway with this project— “getting a seat at the table,” as former Attorney General Edwin Meese put it. My research draws on over 100 interviews conducted with the Federalist rank-and-file as well as conservative leaders, including a number of federal judges associated with the Society. In addition to providing a critical history of the group, I consider a number of conservative legal theories, often the subject of Federalist Society events and publications. I focus in particular on several key individuals: Justice Antonin Scalia and his modes of textual interpretation; Attorney General Meese and “originalism”; Professor Richard Epstein and libertarianism; former U.N. Ambassador John Bolton and national sovereignty. I conclude that the Federalists deserve commendation for their efforts to engage intellectually with their opponents and with the many factions on the right. I also conclude that the left needs to counter the Federalist project with a similarly vigorous and open strategy—and organization—of their own. iii TABLE OF CONTENTS PART I RHETORIC AND CONSERVATIVE POLITICS Prologue HARRIET MIERS AND THE MOVEMENT …...……..…………………....1 Chapter 1 RHETORIC AND THE RISE OF THE RIGHT ...…………………….……13 The Founding of National Review………………………………...…30 Young Americans for Freedom: “The Other Side of the Sixties”...…37 The “Draft Goldwater” Campaign……………………………...……40 The American Conservative Union and Nixon’s Welfare Plan……...46 The Founding of the Moral Majority………………………………...51 The Panama Canal, Sovereignty, and the National Will…………….54 PART II THE FEDERALIST SOCIETY: A CRITICAL HISTORY Chapter 2 THE BIRTH OF AN IDEA ……………………………………..…….…….60 Getting off the Ground……………………………………………….70 Law and Politics, Text and Context………………………………….82 Building the Organization……………………………………………89 Law and Culture…………………………………………………….104 Chapter 3 THE PIPELINE DELIVERS ………………………………………..….….108 Robert Bork: The Dispensable (and Indispensable) Man…………..108 Building and Managing the Pipeline………………………………..112 iv Branching Out: The Role of Judges………………………………...127 National Conventions: The Pipeline’s Central Pumping Station…...134 Strangers in a Strange Land?.............................................................140 PART III FEDERALIST READINGS OF THE LAW Chapter 4 EDWIN MEESE, THE FOUNDERS, AND THE CONSTITUTION …….145 “A Jurisprudence of Original Intention”……………………………149 What Exactly Is “The Law,” and Who Gets to Say So?....................158 The Mythic Constitutional Narrative……………………………….161 The Constitution vs. Constitutional Law…………………………...164 The Historical Stage………………………………………………..169 The Line Between Law and Politics………………………………..171 The Law of the Land?........................................................................174 Derelicts and Power………………………………………………...178 Chapter 5 THE PROBLEM OF RACE: ORIGINALISM, BROWN V. BOARD OF EDUCATION, AND THE RHETORIC OF EQUALITY ...………….........181 Interpreting Brown v. Board: The Debate Begins………………….187 Nixon, Nixon’s Court, and the Emergence of the Think Tanks……194 Reshaping Civil Rights and the Discourse of “Equality”…………..198 The Reagan Era and Colorblindness………………………………..203 The End of Civil Rights?...................................................................209 Chapter 6 ANTONIN SCALIA’S TEXTS AND TRADITIONS …...…………..……213 Textualism and Originalism: The Problem of Intent……………….213 Scalia’s Textualism…………………………………………………219 v Tradition and Text…………………………………………………..223 Looking to Tradition………………………………………………..229 More Traditions…………………………………………………….244 Lawrence v. Texas: Law on The Terrain of Tradition……………...248 Chapter 7 RICHARD EPSTEIN, THE LIBERTARIANS, AND THE LANGUAGE OF ECONOMICS ……..........................................................255 Epstein and the Federalists………………………………………….255 How Progressives Rewrote the Constitution……………………….263 Takings……………………………………………………………...272 Critiques of Economic Discourse…………………………………..276 Chapter 8 THE “NEW SOVEREIGNTY” AND INTERNATIONAL LAW: THERE’S A NEW BAD GUY IN TOWN .....………………………..……282 Meet Mr. Schmitt…………………………………………………...289 Mr. Schmitt Goes to Washington…………………………………...294 American Exceptionalism and the New Sovereignty………………308 Conclusion RHETORIC AND CHANGE ………………………………………...……317 REFERENCES, TABLE OF CASES, INTERVIEWEES…………….....…323 vi PROLOGUE HARRIET MIERS AND THE MOVEMENT Sandra Day O’Connor announced her retirement from the Supreme Court of the United States on July 1, 2005, presenting President George W. Bush with his first opportunity to nominate a Justice to the highest court in the land. Although it had hardly been a central issue in either of his presidential campaigns, Bush had let it be known that he preferred conservative approaches to the law and declared his intention to appoint Justices in the mold of Antonin Scalia and Clarence Thomas. Among the 40,000 conservative and libertarian lawyers of the Federalist Society—founded as a student group with then-Professor Scalia as their first faculty sponsor—Bush’s backing carried a lot of weight. Two and a half weeks later, Bush nominated D.C. Circuit Judge John G. Roberts Jr. to succeed O’Connor. Roberts had worked in the Reagan justice department, and also in private practice—where he had argued an impressive number of cases before the Supreme Court. He had no academic writings to his name and had been on the D.C. circuit barely long enough to author a dozen opinions; his “paper trail” was exceedingly thin. He seemed an ideal pick, well-respected, bright, and clearly conservative. Then on September 3, 2005, Chief Justice William H. Rehnquist died in office, presenting Bush with another vacancy to fill. In a move that surprised some Court watchers, he bumped Roberts up to fill Rehnquist’s seat—there is no requirement that Chief Justices already be sitting on the Court. Roberts had clerked for Rehnquist, and his familiar presence as an advocate before his potential colleagues suggested he would be smoothly accepted as one of their brethren. There remained O’Connor’s empty chair to fill. Pressure quickly mounted in the press for Bush to nominate a woman. O’Connor, after all, had been the first female to be nominated to the high court and was generally viewed as a centrist with appeal to both liberals and conservatives; she consistently cast a swing vote in key cases on controversial issues like abortion rights. The leaks regarding Bush’s “short list” included several women, but none mentioned the eventual nominee, White House Counsel Harriet Miers. Washington, and the rest of the country, was baffled. Miers had never served as a judge and was hardly viewed as an intellectual luminary, as Roberts was. Her greatest qualifications for the post appeared to be that she was first, a Bush loyalist, having served in his administrations in Texas as well as Washington, and second, female. It took several days for the punditocracy to react. It was unclear how Miers’s name had been put forward in the first place; some said it was just another example of Bush’s placing loyalty above all else; others claimed Democratic Senate Minority Leader Harry Reid had suggested Miers to Bush as a compromise candidate—perhaps because Reid had some inside knowledge about her views on abortion rights. As the hours and days ticked by, it became clear Miers’s staunchest