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Right-wing Judicial Influence and Scalia's Catch-22
by Rich Cowan

Few progressives were surprised by the decision of the US Supreme Court to stop the recount, given the appointment of several conservative activists to the Court.

I did some fact-checking today and came up with some more info on the Federalist Society, a nonprofit organization with a multi-million dollar budget, initially founded in 1982 on three college campuses (Harvard, Yale, and U of Chicago).

Some of the new facts:

1) The faculty advisor to one of the original Federalist Society chapters was none other than Antonin Scalia, who is now one of the most right-wing members of the Supreme Court. (See the Washington Post, Dec. 12, 1986, p. A23).

2) Though the Society consisted only of a few student chapters initially, it quickly attracted right-wing grants and grew its budget to $400,000 after only 4 years, according to the Community Rights Counsel (CRC). (see http://www.communityrights.org/chapter3.html and http://users.law.capital.edu/federalistsociety/fp1/mayer.htm)

3) The Society was intimately involved in choosing judges and Justice Department staffers in both the 2nd term of the Reagan-Bush Administration (1985-9) and the Bush Administration (1989-93) according to CRC. Pretty good for a "student" organization!

4) One of the most active Federalist Society board members appeared on several networks Sunday (12/10/00) on behalf of the Bush campaign. This was White House Counsel (Under Bush) C. Boyden Gray. Some have claimed that Gray asked Federalist Society cofounder Lee Liberman (now Lee Otis), to weigh in on the "ideological purity" of proposed Bush judicial appointees. The American Spectator has disputed this claim. However, People for the American Way's research clearly demonstrates the existence of a conservative "judicial litmus test". See: http://www.pfaw.org/issues/right/rep_litmus.shtml and the Policy Review article "Original Thomas, Conventional Souter," fall 1995.

5) Gray is one of the many heirs to the R.J. Reynolds tobacco fortune. He was the chair of the Washington Chapter of the Federalist Society and he is now the chair of the board of Citizens for a Sound Economy (CSE), a pro-business lobbying group that is funded by tobacco, oil, electricity, telecommunications, financial services companies, private foundations, and others. The organization had a budget of over $17 million in 1995 and began a new multimillion dollar program to encourage Social Security privatization in 1996. The list of CSE grants from 1992-4 is at: http://www.mediatransparency.org/info_on_any_recipient.asp?395. According to the Washington Post, CSE received $380,000 from Microsoft Corp (January 29, 2000).

You can read more on C. Boyden Gray and CSE's activities at:
http://www.nlg.org/news/0003_landay.html (federalist society)
http://www.cleanairtrust.org/release.091800.html (anti-environment)
http://www.onlinejournal.com/Justice_in_America/PublicI090600/publici090600.html (Citizens for a Sound Economy) http://www.thenewrepublic.com/archive/04/041497/rosin041497.html (heir)
http://www.mediatransparency.org/recipients/cse.asp (CSE budget) http://www.commoncause.org/publications/microsoft/092500403.htm (Microsoft)

6) Several news commentators have implied today that the decision was split along party lines; in fact it was not. The minority included Republican appointees John Paul Stevens and David Souter.


One final comment about the initial US Supreme Court (USSC) ruling on Dec. 4, throwing the decision back to the Florida Supreme Court (FSC).

The USSC ruling said to the FSC that any recount had to be based on the existing Florida recount law. Of course, the law is a bit shaky in that it leaves the determination of the standards used to determine a "voter's intent" up to the local county canvassing boards.

If the FSC asked for a statewide recount under a single standard, the USSC would likely have overruled the FSC. They would have simply recited the standard Federalist Society line: that any court action to improve upon an incomplete law is "judicial activism", "overreaching," or "making new rules after the fact."

Instead, the FSC asked for a statewide recount under the existing law that gave counties local autonomy. For this, the FSC has now been chastised by Justice Scalia and others for ordering recounts without a common standard. (Incredibly, the Bush legal team is even basing its argument on civil rights provisions of "equal protection" in the U.S. Constitution.)

Damned if you do; damned if you don't. A classic "catch-22" situation.

The Supreme Court could regain credibility as an arbiter seeking a fair outcome by allowing a statewide manual recount of all the "undervotes" under a single uniform standard. But given all of the prior history cited below, it seems likely that their main objective is simply to put George W. Bush into office.

-rich cowan

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