Remarks of Attorney General John Ashcroft
Federalist Society 20th Anniversary Gala Thursday - November 14, 2002
(Note: The Attorney General Often Deviates From Prepared Remarks)
Good evening. It is a pleasure to be here tonight. The first thing I want to do on this momentous occasion - the 20th Anniversary of the Federalist Society - is thank you.
Thank you not only for coming to listen to me - as a former Senator, I still appreciate the value of a polite audience - but thank you also for the vital role that you play, and have played, over the last 20 years in supporting the Federalist Society.
It is an honor to have served in Congress with Secretary Abraham and David McIntosh, the original founders of the Federalist Society, along with Lee Liberman Otis and Steve Calabresi. I thank also Ted Olson - not only is he an outstanding Solicitor General but he is extraordinarily dedicated to the Federalist Society, having served as President of the Washington, D.C., Chapter of the Lawyers Division.
I know that supporting the Federalist Society can be unpopular in some circles these days. Indeed, there are some who would paint the Federalist Society as a nefarious, underground cabal with secret handshakes and blood oaths. I called you all here tonight because I want to know who squealed . . .
Your presence here demonstrates your commitment to a great organization. Over the last 20 years, the Federalist Society has made an enormous difference in legal and public policy discussions across the country. In the words of President Ronald Reagan, the Society is "changing the culture of our nation's law schools." It has nurtured a generation of outstanding attorneys, many of whom serve in positions of significant trust in this Administration, and in particular with me at the Justice Department. In fact, I looked at the roster of speakers for this weekend, and I wonder if anyone is working back at the office.
Perhaps the Federalist Society's most important contribution has been the improvement of legal education in America by forwarding the radical notion that true learning comes from hearing more than one perspective.
There are undoubtedly certain perspectives that most of the people in this room share. I would venture to guess that there is a fair amount of consensus in this room that principled republican (with a small "r") government demands adherence to the text and original intent of the Constitution.
In fact, I suspect it is this view specifically - espoused by certain highly visible members of the Society - that has generated such animus against the Society, and stalled several extraordinarily qualified judicial nominees in this last Congress. There are signs that this soon may change.
Critics of the Federalist Society view the idea of faithful adherence to the text and original intent of the Constitution as some sort of vice, some perverse affliction to be cured by attendance at Yale. In my case, that particular course of treatment happily failed. But it did not fail because of the views of the Federalist Society. As you know, the Federalist Society as an organization does not have "views" - just as it does not endorse, or oppose, nominees to the federal bench.
The great strength of the Federalist Society is that it does not take official positions in public debates, but rather provides a forum for those debates. Alan Dershowitz has said that the Federalist Society's "contribution to getting us on the other side to think more clearly about our issues, and to presenting [these issues] to the American public . . . has performed an enormously useful function." These debates sharpen our thinking on difficult issues. They helped me when I was a Senator, and they help me in my current position as we confront critical issues involving national security and the preservation of liberty in the post September 11th world in which we live. Just as a sharp dissent in a judicial opinion can force the majority to refine - and ultimately, improve -its reasoning, a sharp debate on public policy decisions can improve our resolution of those questions.
Much has been made about the Society's practice of inviting notable liberal scholars to advocate the "opposing view" of an issue. While that practice is commendable, it obscures the fact that on many important issues, there is no "opposing view" because members of the Federalist Society disagree profoundly among themselves. ACLU President Nadine Strossen praises the "intellectual diversity" among members. Federalist Society members are not bound by some dogmatic, conservative orthodoxy. In some cases, libertarians argue against law-and-order conservatives. In others, textualists combat originalists.
Those unfamiliar with the debates may view these differences as mere factional skirmishes between equally antediluvian viewpoints. But we know the differences can be quite significant, with very real implications. We also know that in the context of the Federalist Society, these debates are always conducted thoughtfully and with respect and tolerance for one's opponents.
As I mentioned already, the Federalist Society counts among its members many of the most talented lawyers in the country, many of whom have loaned their excellence to the Department of Justice. We are encouraged by their presence within the Department. Their presence ensures that views such as the importance of federalism, the value of a textual interpretation of long-ignored constitutional provisions, or the need for judicial nominees who know the value of restraint will be raised - and sometimes even prevail - in serious policy-making discussions. This is good news for America.
In addition to this good news, I thoroughly expect many of these lawyers -your friends - to disappoint you occasionally. They will disappoint you because of another view that I suspect most of you share: an understanding of the proper role of an officer of the executive branch. As Justice Department employees, these lawyers have the federal government as a client, and that client has interests that its lawyers must defend even if those lawyers might take the opposite side in a Federalist Society debate.
Those of us in the Justice Department are federal law enforcement officers. First and foremost, we must follow the Constitution. However, there will be times when we have an obligation to make good faith arguments defending or enforcing acts of Congress, even if they are not perhaps the best view of the law, or what it should be. And when we do that, and we have, I expect the Federalist Society will continue to encourage spirited debate on the subject. From those debates, people will learn. And America will be safer, stronger, and more free.