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Obama: Bellying back up to the Bar

Obama's judicial appointment relies on ABA vetting, a big step away from Federalist Society power.

President Barack Obama's first judicial appointment sends a signal that the White House is returning to the mainstream of the nation's legal community, after eight years of close connections between the Bush Administration and the powerful conservative legal organization, The Federalist Society for Law and Public Policy.

Obama's decision to vet potential appointees with the American Bar Association's screening panel is consistent with a policy dating to the Eisenhower administration and followed in some form by every president until George W. Bush. The ABA is an umbrella for lawyers of every political view, whereas the Federalist Society proudly announces itself as conservative and libertarian in philosophy.

The president will nominate U.S. District Judge David Hamilton to a seat on the U.S. Court of Appeals for the Seventh Circuit, based in Chicago. The New York Times was told Hamilton will have the support of both Sen. Evan Bayh, a Democrat, and Indiana's other senator, Republican moderate Richard Luger.

The appointment is interesting from several angles. Hamilton is considered a moderate with good political connections; support from both of his Senators reinforces that image. Obama's choice of a moderate may signal an approach to other positions in the federal legal establishment, including the important U.S. Attorney posts in each state. And the president ia deliberately downplaying the appointment, in contrast to Bush's dramatic joint announcement of a dozen judges, most with a conservative bent and many connected to the Federalist Society.

There is no organization on the left to counter the Society, although organizations for trial lawyers are often allied with liberal causes. The Society since its founding during the Reagan Administration has been strongly rooted in law schools, as both an ideological foundation and an outlet for philosophical debate about the law. Liberal judges are often invited to debate on Society platforms.

The Society has been closely linked to Supreme Court Justices John Roberts, Antonin Scalia and Samuel Alito. Society members, particularly Kenneth Starr, were active in pursuing the impeachment of President Bill Clinton, and Sen. Orin Hatch, R-Utah, a Society director, headed the Judiciary Committee when Republicans controlled the Senate.

Even before George W. Bush was elected, the Society had about 25,000 members and was recognized as the conservative powerhouse in federal circles. In a 2000 article in Washington Monthly , Jerry Landay noted that in 1983, there were "17 Federalist chapters based solely at law school campuses. Today [2000], there are lawyers' chapters in some 60 cities, and student chapters on 140 out of 182 accredited law school campuses." After eight years of a like-minded administration, the Society today claims 10,000 student members, chapters in all 196 accredited law schools and 30,000 lawyer members.

Clearly, the Federalist Society will not call the shots in the Obama Administration, but its members are embedded in both private and public Washington, and will continue to be a force to be recognized, if not in appointing judges.

Floyd J. McKay, professor of journalism emeritus at Western Washington University, was a print and broadcast journalist in Oregon for three decades. Recipient of a DuPont-Columbia Broadcast Award for documentaries, and a Nieman Fellowship at Harvard, he is also a historian and holds a Ph.D. from the University of Washington. He resides in Bellingham and can be reached at floydmckay@comcast.net.


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