Please Don't Feed the Federalists
A Democrat's field guide to the conservative jurist.
Ladies and gentlemen, Democrats of the Senate Committee on the Judiciary, welcome to this introductory tour of the North American federalist in his natural habitat. We hope that by getting to know the 10-toed American federalist a bit better this afternoon, you'll avoid, in the future, some of the errors and missteps that have thus far plagued your efforts to understand, question, and possibly impugn them at confirmation hearings. Sen. Feinstein, please do try to keep up with the tour. We ask that you listen carefully as we debunk some of the stereotypes and myths you may have heard about the cadre of conservative white men who worked in the Reagan administration. Sen. Biden—if you would please stop leaping out in front of the federalists in order to be seen at your best angle by the television cameras? It upsets the specimens. Once you acquaint yourself better with the federalist, it is our belief that you will come to love him as we do. You are free to pet the soft, luxuriant hair of any federalist you see here today. ButSen. Kennedy, please stop poking him with a pointy stick.
First, to the myths about the American federalist:
1.) Federalists are teeming with hate and rage: This is one of the most central, pervasive Democratic myths about federalists; particularly those who sit on the bench. It leads you Senate Democrats to believe that if you can just ask the right question of a federalist, he will erupt into a hissing, spitting parody of Bill O'Reilly and then try to strangle you with his bow tie on C-SPAN. As you observe the federalists here today, you will learn that they love their families and do not devote their careers to systematically holding back women, persecuting minorities, and stealing wheelchairs from the disabled. In their own offices, many of them have even worked to advance the careers of specific women and minorities. Attempts to tar the federalist as having dedicated his career to raging misogyny or racism will likely backfire. Most of them have better things to do.
2.) Federalists do not believe in "fairness": Again, a central myth about the federalist is that he seeks only to promote the interests of white men, big businesses, and the unborn; and that he is wholly unconcerned about "giving a fair shake to the little guy." The federalists you see before you cannot not be so readily caricatured. They simply don't accept the proposition that the courts exist to elevate the interests of the little guy above everyone else. This is a defensible constitutional theory that you might one day debate with a federalist on its merits. You may want to ask him pointed questions about the responsibility of the courts when the elected branches of government fail—as they have done on occasion—to protect minorities. You may want to press him on the possibility that the courts should do more than mechanically apply the law as written, when, say, a 10-year-old girl is subject to a strip search as a consequence. Such a conversation might prove enlightening for the American people. But asserting that federalists are inherently not fair or honest, no matter how many times you say it, remains reductive and untrue.
3.) Federalists do not have hearts: Federalists are human beings. They have hearts, although—as per John Roberts—they may not be able to cough one out onto the Senate floor on demand. Federalists also believe that the heart is not an organ relevant to deciding cases. They may not be wrong. Nevertheless, federalists do cry. Their wives cry. They worry about their homes and their children and the erosion of "traditional values"—including, evidently, the dangers of pernicious airborne child psychology. They should be closely questioned on what all of this might mean. But you should not use these hearings to prick them. They will bleed. Just as if you tickle them, they will laugh. Oh … and if you wrong them, they will revenge.
4.) Federalists devote all their energy to plotting for the reversal of Roe v. Wade: Not so. The American federalist has all sorts of wide-ranging hobbies and interests, including restoring power to the states, embracing the framers' ideals, and curbing federal and judicial power. The idea that all federalists are single-mindedly planning the demise of Roe is mistaken. As Harvard law professor Laurence Tribe reminds us this morning, Roe can be nicely hollowed out without ever being expressly reversed. They've largely moved on. So should you.
5.) Federalists have a monopoly on intellectually sound methods of judicial interpretation:Republicans in the Senate have urged, argued, and reinforced the notion again this week that conservative judges "apply the law" and liberal jurists "make it up." Theories of judicial interpretation from the political right initially sound very attractive: Conservatives judges read the statutes, study the precedent, and then mechanically deduce what the law is, without regard to their personal preferences. Americans have been told countless times this week that the only alternative to this approach is a reckless, wooly, ends-driven method, invariably involving "penumbras and emanations." As you gently pet the federalist here today, you may want to probe whether there are indeed "moral judgments"—to quote Yale law professor Anthony Kronman this morning—at the heart of their decisions. And if you suspect that all judges inevitably make such moral judgments, you might seek to uncover from where such moral judgments come. When your inquiry proves fruitless (i.e., you are stonewalled), you may wish to turn to other sources to refute the notion that nothing in a person's history or ideology is reflected in his (or her) moral judgments.
Ladies and gentlemen of the Senate judiciary committee, as we conclude today's tour, kindly remember these parting words: Not all federalists are as grumpy or hotheaded as Robert Bork. In fact, none of them are. They've watched those tapes too many times, and they're not about to play into your hands again. Federalists espouse a view of the Constitution and the allocation of government powers that largely differs from yours; it may indeed differ from that of most Americans. But they are not going to become bilious and malevolent in front of the cameras. They are not going to speak candidly about the more radical components of their legal project. Instead, their friends and colleagues will very truthfully attest to their "generosity," their "open-mindedness," their "brilliance," and their "compassion"; Supreme Court workers universally name Clarence Thomas as the kindest and warmest justice on the current court. That is irrelevant to how he decides cases. Very nice, very brilliant, and very well-respected jurists have sometimes been very wrong about what this country needs from its courts.
In short—and I am now going to ask you, Sen. Durbin, to stop waiting around for Sen. Coburn to apologize and go on home—it may be time for you, Senate Democrats, to get to know a few federalists, to focus on their ideas as opposed to their integrity, and to think of a better strategy for talking to them the next time around.
Dahlia Lithwick writes about the courts and the law for Slate.