Republican Lawyers Basking in Glow of Bush Re-Election

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The New York Sun

WASHINGTON – As Republican lawyers from across the country gathered in the capital yesterday, they basked in the glow of President Bush’s re-election, but their overall tone was more of relief than outright celebration.


Several hundred GOP attorneys and law students appeared to be in high spirits as they turned out for the first day of a conference sponsored by the Federalist Society, a conservative legal group that has seen many members join the ranks of the Bush administration.


“A lot of administration people are happy they’re keeping their jobs,” said a society member from New York, Kevin Hanratty. “If Kerry had won, they’d be a little more downcast.”


One left-leaning attorney invited to speak at the conference, Richard Daynard, said he was surprised there wasn’t more exuberance from the GOP crowd. “I was just expecting to see high fives all over the place,” he said.


Some said the meeting was relatively subdued because so many prominent members of the society are hoping to be appointed to the federal bench or, in some cases, a higher federal court.


“These are judges and judicial wannabes,” explained a lawyer from Long Island City, Harry Lewis. “In that company, you’re not going to see a lot of obnoxious high-fiving.”


The Federalist Society is at the core of what Senator Clinton once described as the “vast right-wing conspiracy.” However, given the current electoral landscape, the group now seems more establishment than fringe.


At the beginning of yesterday’s speeches and panel discussions, all of which were open to the press, one of the association’s top backers poked fun at the group’s reputation as a furtive fraternity.


“What kind of secret society are we running here?” joked a former solicitor general under Mr. Bush, Theodore Olson. “What is this with the cameras? Even the Supreme Court doesn’t allow cameras.”


Mr. Olson also made a tongue-in-cheek plea for discretion. “Please don’t tell anyone what goes on at these meetings,” he said. “It would seriously undermine the Federalist Society’s sinister reputation with the blue-state media.”


There was a whiff of triumphalism in the air. A mention of the defeat of the Senate minority leader, Thomas Daschle, drew a boisterous cheer from the well-dressed crowd. Mr. Olson also predicted that Mr. Bush’s re-election could reshape American for decades to come.


“The opportunity to change our cultural and legal landscape for a generation may very well be a part of the president’s victory last week,” Mr. Olson declared.


In a surprising development, the favorite punching bag for speakers at yesterday’s discussions was not a Democratic politician or a liberal jurist, but a Supreme Court justice appointed by President Reagan, Sandra Day O’Connor.


Speaker after speaker attacked Justice O’Connor for her opinion last year upholding an affirmative action program at the University of Michigan Law School. In Grutter v. Bollinger, Justice O’Connor wrote for a five-judge majority that found fostering racial diversity at a university is a compelling state interest that can justify race-conscious admissions policies.


“This diversity stuff is just frankly a crock, and everybody knows it. Justice O’Connor knows it,” said a member of the Commission on Civil Rights, Jennifer Braceras.


Others from both right and left mocked the justice’s statement in her opinion that in 25 years such racial preference programs should no longer be necessary.


A law professor at the University of Chicago, Richard Epstein, accused the court of “sleeping on the job” by setting such a time limit.


A former solicitor general in the Clinton administration, Walter Dellinger, offered a similar warning: “If you look at what you’re doing and you hope to God that it goes away in 25 years, maybe it’s something you shouldn’t be doing.”


Mr. Epstein, who is a leading libertarian thinker and tends to give a literal interpretation to the Constitution, surprised some in the crowd by saying that he believes Justice O’Connor may have reached the right result for the wrong reason. He and a judge from the 7th Circuit Court of Appeals, Frank Easterbook, argued that the court should have viewed the University of Michigan as, in essence, a private institution.


Mr. Epstein said affirmative action programs are here to stay because the vast majority of liberal and conservative academics favor maintaining them. “I don’t think it’s just a left-right split,” he said.


The Chicago professor argued that private universities should have the right to pursue such programs without government intervention and that state-run schools should have the same privilege. Mr. Epstein predicted that giving schools free rein over the programs would probably result in them being narrowed over time. “Affirmative action would be more legitimate if you had less government coercion,” Mr. Epstein said. “What we need here is a healthy dose of deregulation.”


That line of argument drew a sharp retort from a judge on the 2nd Circuit Court of Appeals, Guido Calabresi, who noted that it would effectively mean repealing all anti-discrimination laws involving the private sector.


The civil rights commissioner, Ms. Braceras, seemed eager to keep up the battle against affirmative action even as she faulted the GOP and the Bush administration for not coming out squarely against racial preferences. “While the liberals are entrenched in protecting the system, the conservatives do not have fire in the belly to stop them,” she said.


Although most of the attendees at the three-day conference are conservative, the speakers at panel discussions were fairly evenly distributed across the political spectrum.


Mr. Daynard, who played a leading role in the legal fight against the tobacco companies and has now turned his attention to suing fast food restaurants, is to speak on a panel today about regulation through litigation. He compared his predicament to that of a “chicken in a fox coop.”


A forum about an anti-terrorism statute, the Patriot Act, included a Justice Department official and a law professor speaking in favor of the law, and representatives of the American Civil Liberties Union and the Cato Institute raising concerns about the legislation.


An assistant attorney general, Christopher Wray, said critics of the law were generally misinformed. Mr. Wray also said he regularly sees intelligence reports that show that plots against America continue.


“There are lots and lots of people out there still who are just as intent as the September 11 hijackers were on killing as many innocent people as they can,” he said.


A policy analyst at Cato, Timothy Lynch, said parts of the Patriot Act were encouraging banks and other businesses to file thousands of reports on their customers with the government. Most of the transactions reported as suspicious by the companies are entirely innocent, he said.


“Their choice is to work with the government in some kind of Orwellian partnership or they’re going to be slammed with criminal fines,” Mr. Lynch said. “It’s very disconcerting to see this stuff coming from the party of Ronald Reagan and Barry Goldwater.”


Today, the convention is scheduled to hear from Justice Scalia, as well as Attorney General Ashcroft, who recently announced his resignation.


In his speech, Mr. Olson reflected on the ire some liberal press figures have expressed over Mr. Bush’s re-election. He also expressed puzzlement over the decision by the New Republic magazine to paint the president’s victory as a disaster. Mr. Olson noted that the magazine’s editor-in-chief, Martin Peretz, gave a withering attack on Mr. Kerry this week in the Wall Street Journal.


“It kind of makes you wonder who’s writing those ‘From the editor’ editorials in the New Republic, and why in the world Peretz is saving his best stuff – and the truth by the way – for the Wall Street Journal,” Mr. Olson said.


The New York Sun

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