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Federalist Society finally exhales

The conservative lawyers of the Federalist Society opened their annual convention Thursday with praise for Supreme Court nominee Samuel Alito.
Supreme Court nominee Alito arrives to meet Senator Kohl in Washington
Supreme Court nominee Samuel Alito arrives on Thursday for a meeting with a senator on Capitol Hill in Washington, one of several meetings ahead of his confirmation hearings, which begin Jan. 9.Joshua Roberts / Reuters
/ Source: The Associated Press

It was Samuel Alito’s kind of crowd Thursday as the conservative lawyers of the Federalist Society opened their annual convention.

There was plenty of praise for President Bush’s latest Supreme Court nominee and an undercurrent of relief that it wasn’t Harriet Miers whose nomination was pending.

While the society itself does not take positions on judicial nominees, various speakers and individual members volunteered approving words for Alito’s approach to the law. At the same time, they said it is tough to predict how the appeals court judge would rule on specific issues if confirmed to the high court.

That is exactly what makes Alito an “ideal candidate” for the court, Adam Ciongoli, a former Alito law clerk, said during a panel discussion for the media about the judge’s legal philosophy.

“You want judges who are bound by the rule of law, who don’t inject personal opinions into cases, and Judge Alito is the poster child for that sort of decision-making,” Ciongoli said.

Speculation about Roe v. Wade
As for how Alito might rule on one of the hottest topics of the day, the Roe v. Wade decision on a woman’s right to abortion, there were both firm predictions and shrugged shoulders.

“By definition, you’re stargazing on that kind of question,” said Michael Carvin, a Washington lawyer in private practice who worked with Alito at the Justice Department. “It’s a crapshoot, so you might as well go for the best and the brightest and see what happens.”

Others had more specific expectations.

Ed Whelan, president of the Ethics and Public Policy Center and a former clerk for Justice Antonin Scalia, said any justice “who seriously applies traditional legal materials to these questions will recognize that ... Roe is a ridiculous opinion and can’t be sustained.”

Of course, Whelan joked that he still retains hope that Justice Ruth Bader Ginsburg, a strong proponent of abortion rights “will wake up one day and say, ’What have I been doing? Gosh, I’ve been violating my oath for 10 years.’ So maybe I’ll turn out to be wrong here, too.”

‘100 percent behind Judge Alito’
Such uncertainty notwithstanding, it was hard to find negative sentiment about Alito, himself a member of the Federalist Society, among the lawyers overflowing the crowded meeting rooms of the Mayflower Hotel.

“In a crowd like this, the sentiments are almost 100 percent behind Judge Alito,” said Roger Pilon, director of the Center for Constitutional Studies at the libertarian Cato Institute.

Pilon added that he is one of the few with a “possible point of concern,” specifically that Alito may be overly deferential to the federal government.

For all the upbeat talk about Alito and newly confirmed Chief Justice John Roberts, there was palpable relief among the ranks that Miers, who drew strong criticism from conservatives, withdrew her nomination, clearing the way for Bush to tap Alito.

“She did not seem to have the right type of qualifications,” said John Murdock, a lawyer at the Interior Department who, like Miers, is from Texas. “I’d like to see a Texan on the court but that was probably the only job she’s not qualified for.”

Scott Thomas, a lawyer in private practice in Baltimore, said the vigorous enthusiasm evident for Alito just was not there for Miers.

Former Solicitor General Theodore Olson stepped in to deliver opening remarks at the convention when Federalist Society leaders and board members were invited to meet with Bush on Thursday morning at the White House, which is eager to smooth over Federalist feathers ruffled by the Miers nomination.

A year earlier, Olson spoke before the same lawyers’ group and predicted that any opening on the Supreme Court would generate a “political firestorm” marked by malicious attacks from the left on any Bush nominee.

Qualifications make difference
Now, with one new justice confirmed and prospects for Alito’s approval improving, Olson said the solid qualifications of both men have kept the process from degenerating too far.

“It could be a lot uglier,” he said.

Even so, Republican Sen. John Cornyn of Texas, a member of the Judiciary Committee, told the convention the judicial confirmation process has been politicized to the point where he called it “confirmation by ideological interrogation.”

The Federalist Society for Law and Public Policy Studies was founded in 1982 as a debating society by students who believed professors at the top law schools were too liberal. Early advisers were Interior Secretary Gale Norton and Scalia, a former law professor at the University of Chicago. Conservatives and libertarians mainly make up the 25,000 members.