- guardian.co.uk,
- Tuesday March 20 2001 13:45 GMT
The battle's first volleys were fired yesterday, when the leaders of the American Bar Association (ABA), the US lawyers' professional body, were summoned by President Bush's chief legal adviser, Alberto Gonzalez, and told its half-century-old role as a vetting filter for federal judicial appointments might be at an end. If so, it will be treated just like any another pressure group.
If the ABA is knocked off its perch, it would represent a decisive victory for the Federalist Society, a conservative group little known outside US legal circles, but one which has amassed a significant degree of power behind the scenes, in law schools and legal firms around the country.
All this may sound dusty and arcane, but it could yet prove to be even more significant for the long-term future of the US than last year's turbulent election. In the States some of the defining policy judgments of recent decades have been made by the courts, including Roe v Wade, guaranteeing the right to an abortion, or Brown v the Board of Education, desegregating schools.
The Federalist Society is seeking to gain control of the federal courts in order to recast the American legal landscape for a generation. In particular, the Federalists, drawing their inspiration from the writings of James Madison, one of the nation's "founding fathers", want to cut back the role of central government to the minimum possible.
They are opposed, in particular, to Washington's role in promoting racial equality through affirmative action. They are against sexual harassment and gender equality laws, which they see as an infringement on the rights of private organisations.
The Federalists are also opposed to the powers of the environmental protection agency - pollution control, they argue, should be regulated by the free market or, at most, by local or state government.
Meanwhile, the ABA, which is identified with the legal status quo of the postwar era, has been painted as hopelessly liberal by the conservative right. The irony underlying the current situation is that the conservatives, for all their faith in states' rights and limited federal government, were brought to power in December by an act of federal intervention in what is normally considered a state matter.
Federalists would generally argue that debates over the conduct of elections in any state are the exclusive concern of the courts of that state. However, when the Florida supreme court ordered a manual recount of votes in the presidential election claimed by George Bush, it was Ted Olson, a leading member of the Federalist Society, who argued the case for federal intervention, and it was Antonin Scalia and Clarence Thomas, the society's two patrons in the supreme court, who helped Bush ultimately to prevail.
Mr Olson is now solicitor general, and is in the company of plenty of other Federalists in the new administration. Spencer Abraham, the anti-regulation energy secretary, is a founder member, as is his chief legal adviser, Lee Liberman Otis.
Filling judicial posts was never a priority for the Clinton administration, and many vacancies on federal district and appeals courts around the country went unfilled for years. The Bush administration has taken control of the judiciary much more seriously, and has made filling the 100 currently vacant positions a priority.
The young team that has been assembled to vet candidates is made up exclusively of Federalists, several of whom worked as clerks for Justices Scalia and Thomas. Others were staffers for Kenneth Starr, President Clinton's leading inquisitor in the impeachment drama, and another Federalist leading light.
Social liberals have watched the steady rise of the Federalists with alarm. The Institute for Democracy Studies (IDS), a liberal watchdog, has analysed the society's burgeoning power and sees it as a threat to the advances made towards racial and sexual equality in the "great society" era of the 60s.
Alfred Ross, the IDS president, said yesterday: "The growing role of the Federalist Society and other rightwing legal groups opens the door to populating the federal judiciary and administrative agencies with extremist ideologues who are determined to overthrow the legacy of social justice in America."
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