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Scalia v. The World: On Antonin Scalia | The Nation

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Scalia v. The World: On Antonin Scalia

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Scalia's interactions with one of the society's founders nicely illustrates the way it patiently established a beachhead and then penetrated every corner of the profession. Lee Liberman Otis co-founded the Federalist Society while a student of Scalia's at Chicago in the early '80s. In 1982 Scalia became a judge on the US Court of Appeals for the DC Circuit, and he asked Liberman to clerk for him. A few years later she took a position vetting judicial nominees in President Reagan's Justice Department, where she determinedly championed Scalia for the Supreme Court in 1986 over his better-known colleague on the DC Circuit, Judge Robert Bork. Scalia was nominated and confirmed, and he promptly hired Liberman to clerk for him again, granting her the one credential that can open any door in the legal world. Liberman went on to teach law at George Mason University and then returned to work in the two Bush administrations. She currently serves as senior vice president of the Federalist Society. A mutually beneficial relationship installed a giant on the Supreme Court and twice provided him the services of a reliably conservative law clerk, and in turn landed a young conservative lawyer posts in the judicial and executive branches of federal government and in the predominantly liberal academy. Multiply this story by a thousand, and you begin to grasp the Federalist Society's muscle.

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Michael O’Donnell
Michael O’Donnell is a lawyer in Chicago whose writing on legal affairs has appeared in Bookforum, Washington...

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Throughout The Rise of the Conservative Legal Movement, Teles emphasizes the libertarian and intellectual dimensions of the conservative counterrevolution, even to a fault. He does not discuss social conservative organizations like Jay Sekulow's American Center for Law and Justice, which in September published an op-ed titled "The President's New Name: President Barack Obortion"; nor does he examine those organizations motivated by religious conservatism, like Pat Robertson's Regent University School of Law. Yet these institutions and the sentiments that animate them--Scalia's territory--have been indispensable to the movement's successes. For every principled intellectual who finds the Supreme Court's theoretical conception of the due process clause inherently flawed, there is someone else who doesn't want teachers saying that man descended from monkeys. Given that such hidebound ideas are integral to legal conservatism, statements about the mission of the Federalist Society like that of Steven Calabresi, one of the organization's founders, sound impossibly optimistic: "We want to be a reasonable organization like AEI, an organization of thoughtful and intelligent people, an organization that's engaged in dialogue with people on the left, not an organization that's a caricature of what conservatives could be." Thoughtful and intelligent people don't call gay men "homos," as Robertson was famously caught doing during the commercial break of an interview on Larry King Live. By founding an organization deliberately intended to welcome the likes of The 700 Club, the Federalist Society's leaders made its mission statement a contradiction in terms.

If Scalia's ascendance and the role of social and religious conservatism suggest some fundamental inseparability of the conservative legal movement from the worst elements of the base, then so does the movement's bloody shirt: the Senate's rejection of Bork's Supreme Court nomination in 1987. Teles describes the impact of this defeat in vivid terms, emphasizing the pain and anger many legal conservatives felt as their godfather was savaged on the Senate floor. Bork was extremely well connected in Washington legal circles and mentored scores of up-and-coming conservative lawyers in his various positions as solicitor general, a popular law professor and a judge of the US Court of Appeals alongside Scalia. His many acolytes took his humiliation personally. "People felt genuinely outraged," Calabresi told Teles; it was as if "their father or mother had not been confirmed to the Supreme Court."

But Teles is mistaken to compare this referendum on conservative constitutionalism with the "seminal moment[s] of injustice" that motivated other social movements, like Stonewall and the attacks on black civil rights marchers. Minorities who were targeted and physically attacked merely for their intrinsic identities are simply not in the same category as elite judges who feel disenfranchised or indignant because the majority of the country finds their views unacceptable. Yet regardless of whether legal conservatives were justified in feeling the same way about Bork that liberals felt about civil rights icons, the point is, those feelings were genuinely held. And Bork is not a gentle conservative in the tradition of David Souter. He is a true reactionary who might well have edged out Clarence Thomas for the seat on the farthest right of the bench. With people like Bork and Scalia as its heroes, the conservative legal movement is to a great extent incapable of moderation.

Teles concludes that conservatives have caught up to liberals in some regards--at least in the sense of gaining representation, if not dominance, in elite institutions that feed the power structures of the legal profession--but certainly have not outmatched or uprooted them. And while their successes over the past thirty years have been impressive, those successes should not be understood through what Teles calls "the myth of diabolical competence," which essentially means the fallacy of a vast right-wing conspiracy. There was plenty of trial and error, and the whole thing wasn't hatched up and executed by a coterie of militants hunched over a set of blueprints in some underground bunker. This is a useful point to make, for when it comes to successful conservative movements, conspiracy theories abound yet are simplistic and unedifying.

If the movement's greatest success has been to place ideologically sympathetic judges like Scalia on the courts, it still straggles far behind in the legal academy, where ideas are shaped and prestigious degrees handed out. One exception, to which Teles devotes considerable attention, is the law and economics movement, which approaches legal problems through the language and analytic tools of economics. The movement began at the University of Chicago in the 1950s, and its most prestigious accolade was the John M. Olin Fellowship in Law and Economics, given each year to a handful of accomplished young scholars. (The fellowship program ended in 2005, when the Olin Foundation, as stipulated by its mission, disbanded after exhausting its assets.) But even here, the results are limited. If law and economics (and the Olin Fellowship) was once a proxy for more overt conservative credentials, now it is just another research field with questionable correlation to political views. Even the movement's biggest superstar, Richard Posner, makes little use of its tenets in his opinion writing; as a judge, he is much better described these days as a pragmatist than as a law and economics guru. (Full disclosure: I worked for Posner and other judges as a staff attorney at the US Court of Appeals for the Seventh Circuit from 2004 to 2006.) And regardless, a little knowledge of economics is a dangerous thing. While hard economics research is, of course, an important and empirically based discipline, applying economic principles broadly and casually is a little like psychoanalyzing your neighbor: anyone can do it, and the results are laden with spongy assumptions and frequently wrong.

I was reminded of this several months ago by an exchange on The Volokh Conspiracy, a law blog founded by the wunderkind UCLA professor Eugene Volokh that counts among its contributors libertarian legal scholars, many of them former Supreme Court clerks, who are very smart and have many thoughtful things to say about law, politics and culture. In September the blog featured a short post about the botched lethal injection of convicted murderer and rapist Romell Broom, whose executioners were unable for several hours to find a vein and had to reschedule the procedure. The Eighth Amendment--which prohibits cruel and unusual punishment--is a topic of scholarly interest to several of the blog's contributors, and Broom's terrible story undoubtedly caught their attention for that reason. The posting was sober and respectful, attempting little more than a summary of the awful facts and a few links. One commenter broke with decorum, offering that sparing Broom would "give death row inmates the option of overeating or getting hooked on smack during years before execution to make veins buried or trashed." Law and economics! Look, professor--an incentive! That this combination of would-be intellectualism and primitive sympathies is only a pose is less illuminating than what it is a pose of. Chief Justice Roberts might have expressed the same sentiment more diplomatically, and Bork more harshly, but only Scalia could've said it better.

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