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See Also: The Federalist Society: From Obscurity to Power, The Right-Wing Lawyers Who Are Shaping The Bush Administration's Decisions On Legal Policies and Judicial Nominations, by People For the American Way Foundation, Aug 2001
  The Federalist Society, The Conservative Cabal That's Transforming American Law,
by Jerry Landay, The Washington Monthly, March 2000

From: Boyle, Francis []
Sent: Friday, September 17, 1999 2:44 PM
To: <Mailing List>


S P E C I A L    R E P O R T

H I J A C K I N G    J U S T I C E

The Federalist Society, a Right-wing network of lawyers, judges and supporters,
is undoing civil rights and other gains made through the courts

By George E. Curry & Trevor W. Coleman
Emerge, October 1999


WHEN BROWN VS. BOARD OF EDUCATION WAS BEING ARGUED, a clerk to U.S. Supreme Court Justice Robert Jackson suggested that the court should rule against the plaintiffs in the landmark school desegregation case. While making the case for maintaining segregated schools, the clerk sent a memo to his boss saying, "It is about time the Court faced the fact that white people in the South don't like the colored people." That clerk was William Rehnquist, now chief justice of the United States Supreme Court. Seeking to put his own ultraconservatives on the Supreme Court with Rehnquist, President Ronald Reagan -- who had appointed more than half of the sitting federal judges by the time he left office -- considered nominating Lino A. Graglia, a controversial University of Texas law professor, as a federal appeals court judge for the 5th Circuit. But the nomination, which had been backed by Attorney General Edwin Meese III, was jettisoned after Graglia acknowledged that he had referred to African-Americans as "pickaninnies." The American Bar Association found the law professor "not qualified" to serve on the federal bench.

Reagan did nominate Robert H. Bork, a former Yale law professor, who was on the U.S. Court of Appeals in Washington, D.C. Bork had opposed the 1964 Civil Rights Act, calling it "an unwanted intrusion on the right of individuals to choose with whom to associate." After bitter debate, the Senate rejected his nomination in 1987 by a vote of 58 to 42.

Far from fading into the background, Bork, Meese, and to a lesser extent, Graglia, are key players in the Federalist Society, a powerful Right-wing network intent on restricting the power of courts, often at the expense of African-Americans and other people of color, the poor, women and the disadvantaged.

The organization actively seeks to limit "judicial activism" and reverse Supreme Court landmark rulings since the New Deal, especially those issued in the 1960s and '70s. Special targets include the 1966 Miranda decision that provides certain rights for suspected criminals, the 1973 Roe vs. Wade ruling legalizing abortion and recent civil rights legislation.

Founded in 1982 by three law students, the Federalist Society has grown into one of the most influential institutions in America. Four of the nine members of the U.S. Supreme Court -- Clarence Thomas, William H. Rehnquist, Antonin Scalia and Anthony M. Kennedy -- are close affiliates of the Federalist Society. So are Donald P. Hodel, former president of the Christina Coalition, and special prosecutor Kenneth Starr.

The Federalist Society's board of trustees is co-chaired by Bork and U.S. Sen. Orrin Hatch -- one of the most conservative members on Capitol Hill. Other trustees include former Attorney General Meese, William Bradford Reynolds, who was assistant attorney general for civil rights in the Reagan Administration, sought to have court-ordered affirmative action programs overturned, and C. Boyden Gray, former President Bush's chief White House attorney, who opposed the Civil Rights Act of 1991.

In a world being reshaped by the Federalist Society, conservative law students have formed chapters on campuses across the nation. After graduation, they clerk for conservative judges and then go on to become high-ranking government officials, partners in major law firms, prosecutors, law school professors and judges at the local, state and federal level. In short, the Federalist Society is on the verge of hijacking the judicial system.

"This is more than an attack on affirmative action being spear-headed by the Federalist Society lawyers," observes Francis A. Boyle, a law professor at the University of Illinois. "They want to go beyond getting rid of affirmative action. They want to go back to Brown vs. Board of Education.

"We have Justice Antonin Scalia (who advised the Federalist Society at its inception and later hired two of its three founders as his law clerks), who two years ago gave a public lecture at Columbia Law School where he stated if Brown vs. Board of Education was to be presented to him today, he would rule against the plaintiff. In other words, this was a threat that if Brown vs. Board of Education was voted on before the Supreme Court, he would overturn it."

That type of thinking disturbs Lawrence E. Walsh. Before becoming president of the American Bar Association in 1975, Walsh chaired an ABA panel that approved President Nixon's choices of federal appeals judges, Clement Haynesworth and G. Harold Carswell, to serve on the Supreme Court. In 1969, the Senate rejected Haynesworth because of conflict-of-interest fears. The following year, Carswell was rejected by the Senate after it was disclosed that he had given a speech as a lawyer expressing his "vigorous belief in the principles of White supremacy."

"My concern is there is going to be a cleavage in the courts between the Federalist Society members and nonmembers," says Walsh, a former federal judge. "Anything that perpetuates that kind of ideological cleavage is not good for the unity of the court system. Ideally, it seems to me that judges should avoid memberships [in politically and substantively motivated organizations] but, of course, they don't do that."

In fact, the ABA, in one of its publications on judicial independence, concludes: "A judge's impartiality and ability to interpret and apply the laws fairly are integral to the administration of justice."

But a judge's membership in an organization -- whether it's the American Civil Liberties Union on the Left or the Federalist Society on the Right -- can influence whether a judge is perceived as being unbiased, a critical element in a judicial system that prides itself on being fair.

Harold D. Pope, president of the National Bar Association, says: "People who are opposing the expansion of rights and opportunities for all people in this society we feel are working against America's best interest. We would hope that all jurists, no matter what their prior political persuasion, would deal objectively with the facts of law as they come before them, as they were sworn to do so when they first sat on the bench."

The expansion of the Federalist Society, which has adopted a silhouette of James Madison as its symbol, comes at a time when the legal community is worried about a loss of public confidence. An ABA special committee on judicial independence issued a report in August titled "Protecting the Bulwark of the Republic: Ensuring Public Support of the Judicial Process." The report states, "According to the ABA survey, only about half of the respondents believed that our justice system treats men and women equally. Even fewer believed that courts treat members of different ethnic groups or wealthy and poor people the same."

The report continues, "As [former] ABA President [Philip S.] Anderson recently stated: `We must work on this problem for as long as it takes to make our profession equally open and our system of justice equally responsive to all members of our society, regardless of color. This is the ultimate challenge to the integrity of the rule of law in America.'"

But the Federalist Society is interested in a challenge of a different kind. To its credit, the organization operates with an open and very public agenda. On its web page, for example, it lays out its conservative agenda. "The Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. The Society seeks both to promote an awareness of these principles and to further their application through its activities."

Even conservative writer Michael Lind would call this 19th-century view "the Confederate theory of the Constitution."

Speakers at one national Federalist Society-sponsored lawyers convention proposed far-reaching judicial reforms that included the abolition of judicial review, limiting the powers of federal courts and stripping the Supreme Court of jurisdiction over certain matters.

Mary Frances Berry, chair of the U.S. Commission on Civil Rights, is worried about more than theory. "What is scary about the Federalist Society is that it is antiquated and atavistic," she says. "Their views on natural law, libertarianism and the limited power of government to respond when people are being discriminated against is scary -- for African-Americans, especially. The more people you have who espouse those views on the court, the more dangerous it becomes for every one of our lives."

In this book, Firewall: The Iran-Contra Conspiracy and Cover Up, Walsh writes: "In calling for the narrow construction of constitutional grants of governmental power, the Federalist Society seemed to speak for right-wing Republicans. I was especially troubled that one of White House Counsel Boyden Gray's assistants had openly declared that no one who was not a member of the Federalist Society had received a judicial appointment from President Bush."

Brian W. Jones, a San Francisco lawyer and member of the Federalist Society, believes that his group is being maligned.

"I reject out of hand that Federalists are hostile to civil rights," says Jones, an African-American who was deputy legal affairs secretary to California Gov. Pete Wilson and former counsel to Hatch's Senate Judiciary Committee. "Most members of the Federalist Society would agree that the government has no business making racial distinctions of any kind among its citizens. I would argue that is a very credible view of civil rights.

"On civil rights and civil liberty issues, Federalist Society judges tend to have a more limited view of the federal government's authority to respond to a whole range of questions. For conservatives, the first question with any inquiry into responding to social problems is: Where does the authority lie, with the federal government or state and local governments?"

Another African-American, Gerald Reynolds, is vice chairman of membership for the Federalist Society. "There are some people who embrace this principle of racial neutrality," says the Kansas City, Mo., lawyer. "This debate flows from principles and not from animosity toward Blacks."

The national office of the Federalist Society in Washington, D.C., refused to provide the names of judges on its membership list. However, some of the organization's records were obtained by Emerge from other sources.

An examination of Federalist Society documents for 1997 and 1998, the most current information available at press time, reveals the extent that the group has penetrated the courts. When looking at the board of directors of local chapters, officers, their advisory panels and membership lists, it is clear that when one goes to court seeking justice, he or she is increasingly likely to have a judge affiliated with the Federalist Society handling the case. During the period studied, that was true whether one was entering a courtroom in New York, Michigan or Alabama. (The titles of persons listed hereafter reflect the positions they held at the time the records were compiled by the Federalist Society; some of the judges have since been elevated to a higher court.)

In New York state, judges serving as officers, directors or advisers to the local chapters included Thomas P. Griesa, chief judge of the U.S. District Court, Southern District of New York, as well as District Judges Shirley Wohl Kram, Lawrence M. McKenna and John E. Sprizzo. A U.S. Appeals Court Judge for the Second Circuit, Dennis G. Jacobs, was also among that group. The Long Island advisory board included U.S. District Judge Michael Fiechter, U.S. Court of International Trade Judge Gregory W. Carman and State Supreme Court Judges Jack Dunne and Ute Lally.

In Michigan, judges aligned with the Federalist Society included James L. Ryan and Richard F. Suhreinrich of the U.S. Court of Appeals; Federal District Judges Paul V. Gadola, David W. McKeague, Gerald E. Rosen and Lawrence P. Zatkoff; and U.S. Magistrate Judge Virginia M. Morgan. State Supreme Court Justices Clifford W. Taylor and Elizabeth A. Weaver were listed as advisers to the Detroit chapter. So were Maura D. Corrigan, chief judge of the Michigan Court of Appeals, along with fellow judges Stephen J. Markman, Henry W. Saad, and Robert Young Jr. (an African-American who has since been elevated to the Michigan Supreme Court). The chief judge of the Washtenaw County Circuit Court in Grand Rapids, Kurtis T. Wilder (another African-Americana who is now on the Michigan Court of Appeals), and Wayne County Circuit Judges Sean Cox, Michael J. Talbot and Brian Zahra helped complete the list.

Local chapters in Alabama were advised by Perry O. Hooper Sr., chief justice of the Supreme Court of Alabama, along with Associate Justices J. Gorman Houston, Harold See and A. Hugh Maddox. U.S. Sen. Jefferson B. Sessions III also supported the organization. (Sessions was nominated to become a federal judge in 1986 but was blocked when it was disclosed that he had called the NAACP and the American Civil Liberties Union "un-American" and "communist-inspired," and said they "force civil rights down the throats of people." Referring to the Ku Klux Klan, he reportedly said, "I used to think they're OK," until he learned that some Klansmen were "pot smokers." Sessions contended the remarks were either made in jest or had been misinterpreted.)

Additional supporters listed included Randall T. Shepard, chief justice of the Indiana Supreme Court; Craig Enoch, chief justice of the Texas Supreme Court; South Carolina Attorney General Charles Molony Condon; Alabama Attorney General William Pryor (who has links on his web page to the Federalist Society and the conservative Washington Legal Foundation), Pennsylvania Attorney General D. Michael Fisher; Indianapolis Mayor Stephen Goldsmith and Clarence Thomas' wife, Virginia, a former aide to House majority leader Richard Armey, and who now works for the Heritage Foundation.

As the presiding officials in courts, judges wield broad power. For example, U.S. District Judge Neal B. Biggers Jr., who sits on the advisory board of the Mississippi chapter of the Federalist Society, presided over the Ayers desegregation case. In 1975, Jake Ayers Sr., a Mississippi sharecropper, sued the state on behalf of his son, charging that the state's higher education system discriminated against African-Americans and historically Black colleges.

In 1987, Biggers upheld the state College Board's contention that Mississippi's higher education system was no longer racially discriminatory. The Supreme Court reversed Biggers in 1991 and ordered him to remove any vestiges of past discrimination.

The power of the Federalist Society is not limited to the judiciary, which would be concern enough. Its tentacles extend deep into corporate America. Listed members of its business advisory council included John Stewart Bryan, III, chairman, president and C.E.O. of Media General Cable; John G. Medlin Jr., board chair of Wachovia Corp., an interstate bank holding company; Geneva Steel C.E.O. Joseph Cannon and Robert L. Strickland, chairman of Lowe's Companies. Also affiliated with the Federalist Society are Brian J. Brille and David Panton of Morgan Stanley financial services in New York; William Haraf of Bank of America in San Francisco; Chris Ekren of Sony Corp. in San Jose, Calif.; Frank Blake of General Electric in Schenechtedy, N.Y.; Philip R. Lochner Jr., senior vice president, Time Warner Inc. in New York; William Kemp of General Motors in Warren, Mich.; Edward Whelan of GTE Corp.'s Washington office; David Askin of Exxon Co. in Baytown, Texas; Marsha Rabiteau of Dow Chemical in Midland, Mich.; F. James Tennies, chief administrative officer at Legg Mason for asset management in Baltimore; Jodi Balsam, counsel for operations and litigation for the National Football League and Tom Donahue of Metropolitan Life.

Even federal employees in the Clinton administration were included in Federalist Society documents: Paul-Noel Chretien of the Justice Department; Theodore Cooperstein of the FBI; Carol Crawford of the International Trade Commission; Kevin Martin of the Federal Communications Commission and Christopher Holleman of the U.S. Small Business Administration. William Saunders of the U.S. Commission on Civil Rights also backs the Society.

Many of the nation's blue-chip law firms have attorneys associated with the Federalist Society. Those listed included lawyers in the Washington, D.C. law firms of Arnold and Porter; Covington & Burling; Steptoe & Johnson; Hogan & Hartson; Patton, Boaggs & Blow; and Wilmer, Cutler & Pickering. New York law firms with lawyers associated with the Federalist Society include: Cravath, Swaine & Moore; White & Case and Paul, Weiss, Rifkind, Wharton & Garrison. In Boston, one law firm -- Hale and Door -- has at least 10 attorneys affiliated with the Federalist Society.

The list of law professors associated with the society included Ronald A. Cass, dean of Boston University's law school; Michael Young of Columbia University; John Yoo of the University of California at Berkeley; Eugene Volokh of UCLA; Northwestern University professors Gary Lawson, Daniel D. Polsby and Stephen B. Presser; Robert P. George of Princeton; Gerard Bradley of Notre Dame; Gordon B. Baldwin of the University of Wisconsin, Olan B. Lowry of Temple; Johathan Macey and Richard Painter of Cornell; Ronald D. Rotunda of the University of Illinois; Gerald T. Dunn of St. Louis University and Thomas Morgan of George Washington University.

The University of Virginia, one of the best law schools in the nation, has quite a few Federalist Society professors or sympathizers on its faculty, including John Norton Moore, Robert Turner, Erika Worth Harris and Lillian BeVier.

"People have to understand, whether they like lawyers or not, law schools have an enormous amount of power, whether it's power for good or evil. Unfortunately, what we are seeing under the Federalist Society is law schools and legal education being used to promote racism, bigotry and Right-wing politics. These people believe in the Bell Curve," says Prof. Boyle of the University of Illinois, referring to a controversial theory by Charles Murray and Richard J. Herrnstein about the supposed low intelligence level of some non-Whites. "You have to understand that. Just as the Federalist Society did to the federal judiciary, they are now trying to do to law schools."

Boyle and others say this is done by establishing well-endowed law professorships and speaking tours for the true believers. "Where they once were scholars with Right-wing foundations like the Heritage Foundation, American Enterprise Institute and the Cato Institute, they are now getting credentialed as law professors," he notes.

No comparable movement exists among progressives, which may explain why civil rights groups and liberals are doing such a feeble job defending affirmative action.

"We've got to realize that while we have been dillydallying in law schools with critical race theories and penetrating the Law Review, all this is chump change to [Federalists]," observes Berry, of the U.S. Commission on Civil Rights. "It's like we were out playing whiffle ball while they were exercising power."

The Federalist Society was founded 17 years ago by Yale Law School student Steven G. Calabresi and two counterparts at the University of Chicago School of Law, Lee Liberman and David McIntosh. All three were undergraduates together at Yale. Upset with what they perceived as liberal bias, the three decided to form an organization for conservative law students. Yale professors Robert H. Bork and Ralph K. Winter, both of whom would be appointed to the federal bench by Ronald Reagan, served as advisers to the Yale chapter. In Chicago, future U.S. Supreme Court Justice Antonin Scalia served in a similar capacity.

The contacts the three made as students have proven to be invaluable. Calabresi, in addition to clerking for Bork and Winter, clerked for Scalia at the Supreme Court. He is now a law professor at Northwestern University. Liberman gave up a post in the Justice Department also to clerk for Scalia. She is now Lee Liberman Otis and is chief counsel for Sen. Spencer Abraham (R-Mich.), who founded a Federalist Society chapter at Harvard. McIntosh was a special assistant to Ed Meese when he was Reagan's attorney general; he is a three-term Republican Congressman who's considering running for governor of Indiana. In addition to a board of trustees, the society has a board of directors, co-chaired by Calabresi and McIntosh.

The Federalist pipeline is a well-oiled old boy -- and sometimes girl -- network. For example, Brent O. Hatch, the son of Sen. Orrin Hatch, clerked for Robert Bork when he was a federal judge in Washington, D.C. After working in the Justice Department, young Hatch was appointed general counsel of the National Endowment for the Humanities at the age of 28. He is treasurer of the Federalist Society's board of directors.

The organization has been funded by wealthy conservatives, such as Richard Mellon Scaife, who is vice chair of the Heritage Foundation's board, and another board member, Holland Coors, a member of the conservative Coors family. Many contributions are made through foundations that give to Right-wing causes, including the John M. Olin Foundation in New York, the Sarah Scaife Foundation in Pittsburgh, the Lynde and Harry Bradley Foundation of Milwaukee and the Deer Creek Foundation in St. Louis.

The Federalists have direct ties to Right-wing think tanks seeking to dismantle affirmative action at the local, state and federal levels. The Center for Individual Rights, which successfully argued the Hopwood case that banned affirmative action at the University of Texas, represents plaintiffs in a lawsuit pending against the University of Michigan and were lawyers for supporters of Proposition 209, the anti-affirmative action measure in California. The Washington Legal Foundation sued the University of Maryland, forcing it to drop its Benjamin Banneker scholarships for African-American scholars; the Southeastern Legal Foundation is leading an all-out assault on affirmative action in Atlanta, and the Institute for Justice led the attack on Lani Guinier, then a University of Pennsylvania law professor, who was President Clinton's first choice to be assistant U.S. attorney general for civil rights. Clint Bolick, the group's vice president, dismissed Guinier as a "quota queen," and the eventual nominee, Deval L. Patrick, as a "quota king." He also led the opposition to the appointment of Bill Lann Lee, who was later named acting assistant attorney general for civil rights.

When first lady Hillary Rodham Clinton said that there was a "vast Right-wing conspiracy" afoot that had been hounding her husband since he first announced for president, some Right-wingers almost laughingly dismissed her charges. Special Prosecutor Ken Starr called the comments "nonsense." And Boston Herald columnist Joe Fitzgerald said the first lady had "wandered into paranoia."

But information developed by the Institute for Democracy Studies, a nonprofit research and education organization in New York, confirms that the first lady was on the mark.

In the executive summary of its report, "The Assault on Affirmative Action: An Organized Challenge to Racial and Gender Justice," the organization notes, "Once a month at the Heritage Foundation, representatives of the nation's leading conservative law groups get together for a `luncheon.' This so-called Public Interest Legal Group meeting is just one of several monthly gatherings that right-wing law groups hold."

The report continues: "These meetings serve the purpose of avoiding duplication of effort, airing future plans, and providing guidance for an appropriate organizational division of labor."

In an interview with Emerge, Todd G. Young, director of research and communications for the Atlanta-based Southeastern Legal Foundation, confirms that Right-wing groups collaborate.

"We read each other's briefs (as they are filed) and when there are updates published by other groups," he says. "Although we are separate entities, we share some common understandings about the Constitutions and our (mission) statements are really almost identical for the organizations."

Of its recent lawsuit against Atlanta's affirmative action program, Young notes: "We're refining the definition of what it means to enjoy equal protection under the law and the first step is to end any government-sanctioned discrimination, such as affirmative action programs or racial preference programs. It's philosophically inconsistent to say it was bad then [in the 1950s and 1960s] but it's OK now."

Atlanta Mayor Bill Campbell says it's not OK to discard programs devised to address discrimination against African-Americans.

"Conservative legal interest groups, such as the Center for Individual Rights and the Southeastern Legal Foundation, are striking at the very heart of the civil rights gains of the '50s and '60s," explains Campbell. "These groups are, in essence, a homogenized version of the Klan. They may have traded in their sheets for suits and use different language, but it's the same old racism -- just old wine in new bottles."

The Federalist Society takes its name from The Federalist papers, 85 articles originally published in New York newspapers between 1787 and 1788. The authors -- Alexander Hamilton, John Jay and James Madison -- were attempting to gain popular support for the adoption of a new Constitution.

"Is The Federalist the key to what the Constitution's framers and adopters intended it to mean and how they expected it to function?" asked R. B. Bernstein, a constitutional historian who wrote the foreword to The Federalist, a recent reissue of the papers. "This subset of the original-intent controversy tends to pit many historians, who remain dubious about original-intent arguments, against many legal scholars, who seek a way to limit judicial discretion by anchoring constitutional interpretation in the Constitution's origins."

Bernstein argued that the public should not look at the essays, all written under one pen name, as the definitive word on how the Constitution should be interpreted.

"Jay was not a delegate to the Federal Convention, which framed the Constitution . . . [Hamilton] left the Convention in July, not returning until two weeks before its close in September. And Madison . . . found himself outvoted on a host of major issues," Bernstein noted.

Moreover, as The Federalist papers became the classic commentary on the Constitution, the three men publicly identified themselves as the authors. Even that was not without controversy. Before his ill-fated duel with Aaron Burr, Hamilton tried to take credit for writing papers 18-20, 49-58 and 62-63. Madison made an identical claim of authorship, which was verified through a computer analysis in 1964.

The most damning fact about today's Federalists is that they advocate a limited role for the federal government, while the early founders were interested in establishing a strong central government.

Some civil rights leaders, including Theodore M. Shaw, associate director-counsel of the NAACP Legal Defense and Educational Fund Inc., view the rhetoric of the modern-day Federalists as smokescreen for an assault on civil rights.

"It's ideologically out of the mainstream and a part of the radically conservative agenda and the radically conservative agenda has never served the interest of African-Americans," Shaw says.

Hilary O. Shelton, Washington bureau chief of the NAACP, is less charitable: "They are not conservative. They are very consistent with the Council of Conservative Citizens," a White supremacy group that has featured Senate Majority Leader Trent Lott (R-Miss.) and Rep. Bob Barr (R-Ga.) as speakers.

Surprisingly, some of the harshest criticism of Federalist Society members has come from Republicans. For example, former Attorney General Meese, a main player in the Federalist movement, has been criticized by some of his colleagues in the Reagan administration.

According to The Washington Post, James A. Baker III and Michael K. Deaver referred to Meese as the "Big Bigot," and conservatives referred to his top assistant, T. Kenneth Cribb Jr., as the "Baby Bigot." Cribb sits on the board of directors of the Federalist Society and is a trustee of the Scaife Foundation, a major contributor to the Federalist Society and other Right-wing causes.

Graglia, who has taught at the University of Texas since 1966, touched off a controversy two years ago, when he said, "Blacks and Mexican Americans are not academically competitive with Whites in selective institutions." According to Graglia, "It is the result primarily of cultural effects. Failure is not looked upon with disgrace."

He maintains his membership in the Federalist Society.

"They certainly are unenthusiastic about civil rights laws," he says of his organization. "Richard Epstein [a law professor at the University of Chicago] thinks we will be better off if civil rights laws were all repealed. These people do believe, as I believe, that so-called civil rights have gone too far and are not civil rights at all."

Because so many of the Federalist Society members are seen as opposing civil rights, some people are not quick to accept their professed interest in color-blind justice.

U.S. Appeals Court Judge Stephen Reinhardt of the 9th Circuit observes, "We had the Civil War over states' rights. There is no question we are going back to the pre-Civil War view of governments."

Former federal Judge Lawrence Walsh puts it more bluntly.

"The impression I have is they are trying to return to the 18th century and undo the work of the Supreme Court since the New Deal," Walsh says. "And I think it is wrong to put someone on the court who has a pre-commitment with a political dogma, whether it's the Ku Klux Klan or the Federalist Society."

-- Additional reporting by Lottie L. Joiner

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