November 12, 2005
Federalist Society Speech By Karl
For some, it is the Bavarian Illuminati. For others, the Knights
Templar. And in recent years, it has been the Trilateralists … the
Bilderbergers … or the NeoCons. But for Senators Kennedy, Durbin,
Schumer, and Leahy, the most successful conspiracy in the history
of mankind is one of the most visible and open, as shown by your
willingness to put yourselves on display.
Who would have thought powerful members of the World's Most Exclusive
Club would be so threatened by a movement of confident, principle-driven,
egg-head lawyers? So I say, good evening, fellow Federalists… It
is an honor to be here tonight. The Federalist Society is one of
America's most important intellectual organizations. Since your
founding more than 20 years ago, you have made extraordinary efforts
to return our country to constitutionalism. You have developed new
generations of lawyers, judges, and legal scholars committed to
that vision. And you have shaped America's legal, cultural, and
political landscape in a constructive way.
Consider where America stands today versus where we stood when the
great William Rehnquist was named to the High Court in 1972. That
was right around the time judicial activism was most dominant. Now,
the wind and tide are running in our favor - due in large measure
to your organization.
I admire the Federalist Society for the commitment and energy of
its members, and for their intellectual rigor and effectiveness.
One of George W. Bush's greatest contributions as President will
be the changes he has brought forth in the courts and our legal
culture - and those changes would have been impossible without the
Federalist Society. You have thoroughly infiltrated the ranks of
the White House. In fact, there are so many Federalists in the Administration
that Chief of Staff Andy Card has asked me to announce there will
be a special staff meeting in the back of the room following the
I've thought long and hard about the best way to begin the formal
portion of my remarks… The consistent advice I got was to start
my remarks in a way my audience will find comfortable, familiar,
and reassuring. That sounds about right to me. So here goes: My
name is Karl - and I am a non-lawyer.
I say that with no sense of superiority. Instead, I offer it as
a reminder of what must be a painful point for all with a JD. 99.7
percent of all Americans are non-lawyers. We may not have the power,
but we non-lawyers are the majority. And it is clear today that
many ordinary men and women - non-lawyers - believe our courts are
in crisis. And their concerns are well-grounded.
I have seen this phenomenon for several decades. In the 1980s, in
my home state, the Texas Supreme Court was dominated by justices
determined to legislate from the bench, bending the law to fit their
personal agenda. Millions of dollars from a handful of wealthy personal
injury trial lawyers were poured into Supreme Court races to shift
the philosophical direction of the Court. It earned the reputation
as "the best court that money could buy," in the words of the Dallas
Morning News. Even 60 Minutes was troubled; in 1987 it
did a story on the Texas Supreme Court titled, "Justice for Sale."
Texans had enough - and they took it upon themselves to change the
courts. In a bipartisan reform effort, they recruited and then elected
to the Texas Supreme Court distinguished individuals like Tom Phillips,
Alberto Gonzales, John Cornyn, Priscilla Owen, Nathan Hecht and
Greg Abbott. For those of you who know something about Texas politics,
this was significant. After all, we had gone nearly 120 years without
electing a single Republican to the Supreme Court and then were
blessed with such able people.
I saw this again in Alabama. The state legislature passed tort-reform
legislation in 1987. However, activist judges on the trial lawyer-friendly
state Supreme Court struck it down, prompting a period of "jackpot
justice" through the mid-1990s, where the median punitive-damage
award in Alabama reached $250,000 - three times the national average.
Time magazine labeled Alabama "tort hell."
Like in Texas, this led to a popular revolt against such judicial
activism. It began in 1994, when Republican Perry Hooper challenged
sitting Chief Justice and trial lawyer favorite Sonny Hornsby. Hooper
pulled off a stunning upset, winning by 262 votes out of over 1.2
million cast. But after the election, several thousand absentee
ballots mysteriously surfaced, none of them witnessed or notarized
as required by state law and Hornsby tried to have them counted.
It took a year of court battles before Hooper was finally
seated. His ground-breaking victory would not have been possible
without the work of many Alabamians - including a young dynamic
lawyer by the name of Bill Pryor. Today, the Alabama Supreme Court
is once again committed to the strict interpretation of the law.
We have seen similar court reform efforts in Mississippi, Ohio,
West Virginia, Michigan and other states.
And, of course, all America saw the response to the activism of
the Massachusetts' Supreme Judicial Court with its Goodridge
decision and its conviction that marriage is "an evolving paradigm."
Four judges in Massachusetts, by forcing same-sex marriages on an
unwilling public and rebuking the legislative power, provoked a
national grassroots efforts to defend marriage by amending state
constitutions and passing statewide initiatives.
But the judicial activism about which Americans feel most deeply
is to be found in our Federal courts. For decades, the American
people have seen decision after decision that strike them as fundamentally
out of touch with the Constitution. Let me offer just a few examples
of a trend each of you can describe more powerfully and eloquently
than I can.
The Ninth Circuit Court has declared the phrase "under God" in the
Pledge of Allegiance to be unconstitutional, arguing that it was
an establishment of religion to require children to recite it in
a public school.
Earlier this year a federal district court judge dismissed a ten-count
indictment against hard-core pornographers, alleging that federal
obscenity laws violated the pornographers' right to privacy - despite
the fact that popularly-elected representatives in Congress had
passed the obscenity laws and that the pornographers distributed
materials with simulations where women were raped and killed.
Just a few months ago, five Justices on the Supreme Court decided
that a "national consensus" prohibited the use of the death penalty
for murders committed under the age of 18. In its decision, the
majority ignored the fact that, at the time, the people's representatives
in 20 states had passed laws permitting the death penalty for killers
under 18, while just 18 states - or less than 50 percent of the
states allowing capital punishment - had laws prohibiting the execution
of killers who committed their crimes as juveniles. These attempts
- and many more over the past decades -- have led to widespread
concern about our courts. While ordinary people may not be able
to give each case number or explain in fine detail the legal principles
being bent, they are clearly concerned about too many judges too
ready to legislate from the bench. Why do average Americans have
such an instinctive response to judicial activism? I suggest there's
an easy explanation. It's called the fourth grade.
In the first civics course any of us ever take, we learn about the
"separation of powers" - the doctrine that constitutional authority
should be shared by three distinct branches of government: the legislative,
the executive, and the judicial. Each has a role. That of the judiciary
is to strictly apply the law and defend the Constitution as written.
The Founders' theory was a simple one: By dividing power, the three
branches of government would be able to check the powers of the
The separation of powers makes so much sense even to young minds
- because in devising our system of government, the Founders took
into account the nature of man. They understood we needed a government
that was strong but not overbearing, that provided order but did
not trample on individual rights.
"If men were angels," James Madison famously said, "no government
would be necessary." But men are not angels - and so government
is necessary. Mr. Madison and his colleagues did not take Utopia
as their starting point; rather, they took human beings as we are
and human nature as it is. They believed ambition had to be made
to counteract ambition.
Scholars of American government have pointed out the Founders were
determined to build a system of government that would succeed because
of our imperfection, not in spite of them. This was the
central insight, and the great governing genius, of America's Founders.
And in all of this the Founders believed the role of the judiciary
was vital - but also modest. They envisioned judges as impartial
umpires, charged with guarding the sanctity of the Constitution,
In Federalist #78, Alexander Hamilton described the judiciary
as the branch of government that is "least dangerous" to political
rights. Because it was to have "no influence over either the sword
or the purse," the judiciary was "beyond comparison the weakest
of the three departments of power." As a result, Hamilton told us,
"liberty can have nothing to fear from the judiciary alone."
But Hamilton's optimism has not been borne out.
I don't have to tell anyone in this audience that we have traveled
a great long distance from where we began - and from what the Founders
In the 1770s we saw, within just a few hundred miles of here, the
greatest assemblage of political philosophers since ancient Athens.
Yet today the counsel of Madison and Hamilton and the other Founders
too often goes unheeded, at least in influential law schools and
among too many of our judges. And this failure has led to increasing
politicization of the judiciary and increased activism on the part
of many of its members.
At the end of the day, though, the views of the Founders will prevail
because of the core defects of Judicial Imperialism - including
the mistaken supposition that our charter of government is like
hot wax: pliable, inconstant, and easily shaped and changed.
America's 43rd President believes, as you do, that judges should
base their opinions on strictly and faithfully interpreting the
text of a document that is reliable and remarkable: the United States
Constitution. William Gladstone called it "the greatest work ever
struck off at a given time by the brain and purpose of man."
Critics of constitutionalism say it is resistant to social change.
But if people want to enact or repeal certain laws, they can do
so by persuading their fellow citizens on the merits through legislation
and Constitutional amendments. This makes eminent good sense - and
it allows for enormous adaptability.
The difficulty for those who do not anchor judicial decision in
the words and meaning of the Constitution is that those decisions
are anchored in nothing at all. In the compelling words of Justice
"Panta rei ["everything is constantly changing"] is not a
sufficiently informative principle of constitutional interpretation.
What is it that the judge must consult to determine when, and in
what direction, evolution has occurred? Is it the will of the majority,
discerned from newspapers, radio talk shows, public opinion polls,
and chats at the country club? Is it the philosophy of Hume, or
of John Rawls, or of John Stuart Mill, or of Aristotle?
"As soon as the discussion goes beyond the issue of whether the
Constitution is static, the evolutionists divide into as many camps
as there are individual views of the good, the true, and the beautiful.
I think that is inevitably so, which means that evolutionism is
simply not a practical constitutional philosophy."
Another defect of Judicial Imperialism is it undermines self-government.
The will of the people is replaced by the personal predilections
and political biases of a handful of judges. The result is that
Judicial Imperialism has split American society, politicized the
court in ways the Founders never intended. And it has created a
sense of disenfranchisement among a large segment of American society
- people who believe issues not addressed by the Constitution should
be decided through elections rather than by nine lawyers in robes.
One of the strengths of constitutionalism is that it produces results
that both sides may not agree with, but which are seen as legitimate
outcomes of a free and fair debate. And Constitutionalism offers
the possibility of compromise as well. In the words of a recent
Wall Street Journal editorial, "the Court has hijacked ...
social disputes from democratic debate, preventing the kind of legislative
compromises that would allow a social and political consensus to
But this we know: The will of the people cannot be subverted in
case after case, on issue after issue, year after year, without
provoking a strong counter-reaction. The public will eventually
insist on reclaiming their rights as a sovereign people - and they
will further insist that government return to its founding principles.
We have seen the court overreach in the past - in Dred Scott,
Lochner and in many other cases - and corrective measures
We will see one of two things come to pass. The Courts will, on
their own, reform themselves and return to their proper role in
American public life; or we will see more public support for Constitutional
amendments and legislation to reign them in. It will be one, or
it will be the other.
Will we see the kind of self-restraint those of you in this room,
and those of us who work in this Administration, want? I believe
we will. I say this because we are now seeing the fruits of your
good works and the good works of many others. More than 200 exceptionally
well-qualified nominees - many of whom have found intellectual sustenance
and encouragement from The Federalist Society - have been confirmed
as Federal judges since 2001, not easily or quickly, but confirmed
after a hard effort. On the Supreme Court we see an individual like
Chief Justice John G. Roberts, Jr., who conducted himself brilliantly
before the Senate Judiciary Committee. And soon, Chief Justice Roberts
will have as his colleague a proud member of the Federalist Society,
Judge Samuel Alito, Jr.
The willingness of these brilliant legal minds to put aside lucrative
careers in private practice to serve a greater public good should
make us all optimistic and hopeful. Our arguments will carry the
day because the force and logic and wisdom of the Founders are on
our side. We welcome a vigorous, open, fair-minded, and highminded
debate about the purposes and meaning of the courts in our lives.
And we will win that debate.
In America, conservatives are winning the battle of ideas on almost
every front - and few are more important than the battle over the
judiciary. The outcome of that debate will shape the course of human
events. And the reason we will prevail rests in large measure on
the good work of the Federalist Society - and those of you in this
room this evening.
The President is grateful for your support, for your tireless efforts
on behalf of constitutionalism, and above all, for your dedication
to our country.