Panelists Discuss the Role of Judges at Federalist Society Convention

Constitutional timeless principles

November 21, 2013, by Quinn Nii

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The Federalist Society held its annual National Lawyers Convention over the weekend, and Watchdog Wire was there. 

Speakers addressed a variety of important legal topics associated with this year’s theme, “Textualism and the Role of Judges.” Textualism is a theory of interpreting laws based on the ordinary meaning of the words. 

Held at the Mayflower Hotel in Washington, D.C., the convention marked its 26^th anniversary. 

Legal scholars, luminaries, law professors and policy wonks all gathered for vigorous discussion of important legal topics. Over 100 speakers and 20 panels ensured attendees would be busy.

The focus on textualism is symbolic of the conservative-leaning group’s focus on preserving the idea that judges should look at what the law says in making their rulings, instead of what they want it to say. 

Though considered conservative or libertarian-leaning, the Federalist Society welcomes intellectual diversity and disagreement among members.

“The uniqueness of the Federalist Society is that it invites the other side of the aisle more than the other side [invites them],” one attendee said.

That openness to other ideas could stem from the group taking its inspiration from the Founding Fathers. Though started in 1982, the group looks to past principles, including those articulated in the Federalist Papers, including Alexander Hamilton’s Federalist 78: “It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature.”

Highlights of this year’s convention comprised of Four Showcases: a) Textualism and the Bill of Rights. b) Textualism and Constitutional Interpretation c) Formalism and Deference in Administrative Law d) Textualism and Statutory Interpretation.

One panel, “The Executive Branch Gone Wild,” discussed 21^st century checks and balances. Professor David Schoenbrod noted that Madison explained the three branches of government while expressing concern about a growing “fourth branch” of government: bureaucracy.

“The creation of a fourth branch creates a system that has not been tested,” Schoenbrod said.
He added that government should “do the things they were supposed to do” and not much else.

In a separate panel on “Use of Disparate Impact Analysis,” the panelists discussed issues regarding civil rights and the law. Professor William Yeomans noted there is an enormous “fundamental cleavage of both sides of the civil rights argument.”

Moderator Kenneth Marcus, President of the Brandeis Center for Human Rights concluded by sharing how, during his time at the Department of Housing and Urban Development, he was overseeing several disability cases where his “blood was beginning to boil” due to biases and subjective decision making which led to discriminatory practices. 

Rounding out the conference was the sixth annual Rosenkrantz Debate luncheon. The featured presentation was a debate between Judge Jay Harvie Wilkinson and Professor Randy Barnett.

The crowd roared with laughter at some of Judge Wilkinson’s refreshing commentary about the “old boy establishment.”

Professor Barnett eloquently referenced Federalist paper 78 written by Alexander Hamilton; argued that a judge’s need to exercise duty of power with restraint and deference to a legislature can be nice in theory but challenging in practice.  

Judge Wilkinson counter-punched with an argument about enumerated rights, although he stated, “I maybe booed with the unpopular response to Chief Justice John Roberts Affordable Care Act decision”, he stated it was a courageous decision.

“Imagine if the Gettysburg address or the Constitution says ‘We the Judges say Government of the Judge by the Judge shall not perish from this Earth,’ rather than government by We the People. Why should one profession of attorneys dictate to all other professions?…” 

Fittingly, Judge Wikinson pointed out there are many famous No’s in our Constitution to protect the electorate from an over-reaching Government.

This year’s 2013 convention featured a closing panel on ‘The Electorate and the Courts’ featuring former U.S. Solicitor General Paul Clement who led the charge on behalf of 26 states to overturn Obamacare. 

Joining him was John Fund, columnist for National Review, who referenced that the “courts need to do a better job explaining the political rhetoric rather than casting blame on the electorate process”. 

Concluding the convention was a special celebration of President and CEO Eugene Meyer’s 30 years of distinguished leadership. 

“We look forward to many future events and discussions in the years ahead,” concluded Mr. Meyer, who received a large wooden clock signifying his timeless, principled leadership.

Quinn Nii

Quinn Nii is a Watchdog Wire contributor for the Franklin Center for Government and Public Integrity.

http://watchdogwire.com/blog/2013/11/21/panelists-discuss-role-judges-federalist-society-convention/