Split Vote Takes 11th Circuit Nomination To Senate
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Judge William Pryor is one of the conservative celebrities huddling in Washington this week.
By Tom Curry National affairs writer
updated 11/11/2005 12:04:17 PM ET 2005-11-11T17:04:17

As the Federalist Society held its annual convention in Washington's Mayflower Hotel this week, judicial nominees — failed and successful, past, present and future — mingled and celebrated.

Federal judges increasingly run Americans’ daily lives on matters from property to prayer, and it’s from the ranks of these Federalist Society members milling around the capital that America’s rulers will come in the years ahead, at least while a conservative president is in the White House.

The group’s board went to the White House Thursday morning to meet with President Bush, who has tapped high-profile members of the Federalist Society for the bench, the most prominent being Samuel Alito , whose nomination to the Supreme Court seems headed for confirmation early in the New Year.

The withdrawal of White House counsel Harriet Miers and her replacement by Alito was a thrill and a relief for Federalist members.

“It wasn’t so much that Miers didn’t meet a litmus test for any particular issue. It was hard to surmise what her views were on any issue," said Carter Snead, a professor at the University of Notre Dame Law School. "The problem was she didn’t come from the pool of stellar judicial nominees that people in the forefront of the conservative legal movement think of as the models for federal judges,”

Bush appointees gather in D.C.
Alito wasn’t in attendance, but other Bush appointees to the bench were easy to spot at the Mayflower: Calmly checking his Blackberry was U.S. Court of Appeals Judge Bill Pryor, from the Eleventh Circuit in Alabama; while hustling to get his breakfast Thursday was Tenth Circuit judge Michael McConnell from Utah, often mentioned as a potential Supreme Court short-list candidate.

Both men survived tough Senate confirmation battles to win seats on the appellate bench; a Democratic filibuster blocked Pryor’s nomination for two years.

“Life before nomination was very pleasant, life after confirmation is very pleasant, life during nomination is not so pleasant,” said McConnell, as he scurried away.

Later, in his address, McConnell got in a thinly veiled slam at Justice Anthony Kennedy, for citing in his 2004 Lawrence v Texas sodomy decision the court’s 1992 phrase about liberty being “the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.”

McConnell said when defining liberty judges must look to rights “firmly established by long-standing custom and practice…. One finds such rights… not deep within ourselves or within the mysteries of the universe.”

Pryor, more of an easy-going politician than McConnell, seemed glad to talk to a reporter: “I’m happy to be back in the nation’s capital, I am,” he insisted. “I don’t have any regrets or ill feelings at all…. I can assure you that whatever was said up here during the confirmation process did not cause me any grief among friends and people I see in my home state.”

Pryor loves coming to the Federalists’ annual gatherings. “You’ve got the best experts in the field from diverse viewpoints on the panels to debate the issues. The most challenging thing about being at one of these events is it’s almost physically impossible to be at every one you want to hear.”

Also scheduled to speak at the Federalist Society meeting was Robert Bork, who evokes a sadder memory for conservatives. Bork's nomination to the Supreme Court by President Reagan was defeated by the Senate in 1987.

Another flamboyant Society member at this week’s gathering who was proposed to the bench by President Reagan, but was foiled by American Bar Association opposition, was Lino Graglia, a law professor from University of Texas.

Rule by 'ayatollahs'?
At a panel discussion on “Originalism and Unenumerated Constitutional Rights,” Graglia scornfully compared Americans’ Supreme Court-dominated system of government to Iran.

“There, too, people get to vote, elect legislators, and the legislators pass laws, but the laws are permitted to operate only if not disapproved by the grand council of ayatollahs. Here the Supreme Court performs that function,” Graglia cracked.

He added wryly, “it’s a terrible thing to trust the people, democracy is terribly dangerous — but rule but Souter is more dangerous,” a damning reference to Justice David Souter, who was appointed by the first President Bush in 1990, and who has turned out to be one of the court’s stalwart liberals. The Souter slapdown got a raucous round of Federalist applause.

Most Federalist Society members adhere to the creed of originalism, holding that the Constitution must be strictly read in light of the text and the intentions of those who wrote it. They believe that judges in 2005 have no license to find new meanings in words written in 1787 or in 1867.

But credit the Federalists with bringing their adversaries to the annual meeting for some healthy sparring. Appearing at the three-day event are prominent liberals, such as University of Chicago law professor Cass Sunstein and Nadine Strossen, president of the American Civil Liberties Union.

Romney pays homage to Federalists
Massachusetts governor — and perhaps Bush’s would-be successor in the White House — Mitt Romney, showed up at Thursday’s session to denounce the highest court in his state for discovering a right to marriage for same-sex couples in the 1780 Massachusetts constitution.

“John Adams would be surprised,” Romney quipped. (Adams wrote the 1780 constitution.)

“It’s a mistake for a decision of this magnitude to be made by a judicial body as opposed to a legislative body,” Romney declared. He accused the judges of “a blatant disrespect for the processes of democracy itself. The court is basically saying what the majority of the citizens of this state feel on this issue is not relevant here. In other words, on this issue ‘your vote does not count.’”

But as important as political celebrities such as Romney are to these conclaves, perhaps more important are the law students, the potential stars of the future, who come to listen to their heroes.

Bethany Lewis, a second-year law student at Arizona State University, said “Judge Pryor, who is sitting over there, I admire a great deal,” glancing at Pryor as he noodled on his Blackberry. “And one of my heroes is standing right here — Steve Aden of the Christian Legal Society, a phenomenal litigator,” she noted.

Aden was speaking on the need to defend the Hyde-Weldon Amendment which allows hospitals, doctors, and pharmacists that receive federal funds to refuse to perform abortions or prescribe abortifacient drugs.

Once she graduates from law school, Lewis hopes to launch a career litigating in religious liberty cases.

“In our country, compared to other countries, religious people do not face the same persecution. But I do think there is a growing favoritism for secularism over religion," she said. "All different faiths play a crucial part in our culture and we should embrace and cultivate faith.”

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