by James Oliphant
Candidates sometimes speak in code, using language that might sound ordinary but has particular meaning to a chosen few.
Consider Rudolph Giuliani earlier this summer as he swung through Council Bluffs, Iowa. He promised to select "strict constructionist" federal judges if elected president. The words were not intended for his Iowa audience so much as for a conservative legal elite in Washington.
The former New York mayor, on record as supporting abortion rights and gun control, is looking for some conservative bona fides in his bid for the Republican presidential nomination. So Giuliani has tied himself in a big way to the Federalist Society, the expanding network of conservative lawyers who over the past quarter-century have played a leading role in reshaping the nation's judiciary and setting high-level Republican administration policy.
For more, see the Tribune's story:
(Giuliani, at a speech in Virginia in June. AP photo by Steve Helber.).
Giuliani hitches star
to conservative legal group
By James Oliphant
WASHINGTON — Candidates sometimes speak in code, using language that might sound ordinary but has particular meaning to a chosen few.
Consider Rudolph Giuliani earlier this summer as he swung through Iowa. In the town of Council Bluffs, along the Nebraska border, he promised to select "strict constructionist" federal judges if elected president. It's likely that the pledge elicited nods, some yawns and more than a few blank stares among the crowd.
But the sound bite really wasn't for them so much as it was a smart bomb aimed at the conservative legal elite in Washington. And its intended message was clear: "I am one of you."
That's no small statement where Giuliani is concerned. The former New York mayor is on the record supporting abortion rights and gun control, which loom as twin icebergs in his so-far-smooth sail toward the Republican presidential nomination. That means he needs some conservative bona fides in a hurry.
In that effort, Giuliani has tied himself in a big way to the Federalist Society, the expanding network of conservative lawyers who over the past quarter-century have played a leading role in reshaping the nation's judiciary and setting high-level Republican administration policy.
The newest Supreme Court justice, Samuel Alito, is a proud son of the group, as are his elders on the court, Antonin Scalia and Clarence Thomas. And although the reported membership of Chief Justice John Roberts has been a matter of some dispute, Roberts will be delivering the keynote speech at the society's annual convention this fall.
Giuliani will be there too. His overture to the Federalist Society seems to be a bid to reassure nervous conservatives that they can count on him to do the right thing when it comes to selecting judges and crafting legal policy.
Giuliani has even created a Justice Advisory Committee populated by bright conservative lights including former Bush Solicitor General Theodore Olson as the committee's chairman; Federalist Society co-founder Steven Calabresi, a Northwestern University law professor; and Washington lawyer Miguel Estrada, who was denied a federal appeals court bid in 2003 because Democrats feared he was too conservative. It was Olson, among others, who crafted the words that Giuliani spoke in Iowa that day.
Giuliani isn't the only Republican candidate courting the Federalist Society. Mitt Romney and Fred Thompson also have recruited members to high-level positions in their organizations.
It's not a stretch to say the society—which 25 years ago was a small cell of conservative upstarts dreaming of scaling back the liberal gains made under Chief Justice Earl Warren—has become a new gold standard for Republican presidential aspirants, a brand to display and brag about, the Prada of legal policy.
"Giuliani needs more credibility with the right, and these leading legal conservatives give him that," said Ronald Klain, a lawyer and former aide to Vice President Al Gore.
Edward Lazarus, a former Supreme Court clerk, added, "When you name the leaders of the Federalist Society, you're saying something. This is an effective way for him to say, 'The heavyweights are on my side.' "
A countercultural movement
Olson was in the room at the first meeting of the Federalist Society in 1982, along with Calabresi, onetime Supreme Court nominee Robert Bork and a few others. The idea was to launch a countercultural legal movement in which conservative lawyers and scholars would roll back what they viewed as the excessive intrusion of judges into American life.
Their bete noire was the Supreme Court's Roe vs. Wade decision, the 1973 ruling that affirmed the constitutional right to an abortion and which they saw as a gross violation of the idea that judges should leave the big social decisions to elected officials.
One of the group's founding fathers was Edwin Meese, who would soon become attorney general under President Ronald Reagan. Olson was part of that Justice Department, and so was Giuliani, who served as its third-highest official. The plan was to sow talented conservatives at every level of the federal judiciary and ultimately gain a foothold at the Supreme Court. "That was very much on our minds," Olson said.
It appears to be working as planned. When he took office in 2001, Bush leaned heavily on Federalists to create a legal power structure to continue the work of seeding the judiciary. Roberts, along with fellow conservatives Alito, Scalia and Thomas, now form a formidable bloc on the Supreme Court.
That gives Giuliani's committee added significance. Should he win the presidency, his legal policy group likely would play a major role in the transition team, which screens potential White House and agency appointments, and ultimately in creating policy.
Olson said he expects Giuliani would appoint "conservative, strict constructionist" judges, but said that doesn't mean overturning Roe is part of that agenda. "He doesn't have a litmus test," said Olson, who has been friends with Giuliani for 27 years.
And committee member Charles Fried, a Harvard law professor who in the Reagan administration was the point man for seeking to have Roe overturned, doesn't think Giuliani would seek a similar result. "Laws making abortions impossible to get would be a disaster," Fried said.
Indeed, Giuliani's supporters say his committee is a more broad-based coalition than just the Federalists. And many of Giuliani's most conservative backers say they know the candidate isn't square with them on several issues, but point to his experience and leadership qualities as reasons to get on board.
One example is Walter Olson, a libertarian firmly opposed to gun regulation who supports Giuliani because Olson is a New Yorker and he credits Giuliani with making the city safer from violent crime. "If I can forgive his role in firearms litigation, I can forgive almost any other thing," said Olson, who is no relation to Theodore Olson.
Split among GOP camps
But as the Federalists have grown, they haven't been immune to internal fissures. Federalists have key figures in both the Romney and Thompson campaigns who believe their candidate is a more worthy vessel for their legal philosophies. And they say they haven't had to make the sort of compromise that Giuliani's conservative supporters have.
David McIntosh, a former Indiana GOP congressman and gubernatorial candidate, is vice chairman of the Federalist Society, and he's a domestic policy adviser to Thompson. Douglas Kmiec, another high-ranking official in the Reagan Justice Department, has gone with Romney, whom he calls "authentic."
Giuliani will visit Washington in November to address the Federalist Society at its annual convention, a speech that will be closely watched by the conservative legal elite.
But should Giuliani win the nomination, he will face the challenge of repositioning himself for the general electorate. The Democrats will be waiting.
"One must expect that President Giuliani's judicial nominees would be just as conservative as President Bush's nominees have been," said Klain, the Democratic lawyer. "Given this highly conservative group of advisers, a Giuliani presidency would not give us a 'kinder, gentler' federal judiciary in any respect."