The Case for Counterpacking the U.S. Supreme Court
Against the Federalist Society
By Professor Francis A. Boyle
University of Illinois College of Law
* After Roe in Alabama * Counterpacking the Court
June 27, 2022
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FRANCIS BOYLE, fboyle@illinois.edu
Boyle is professor of law at the University of Illinois. His books include Tackling America’s Toughest Questions.
He has been advocating that the Democrats embrace expanding the court for years. Boyle told the Guardian in 2018: “I think Kavanaugh was put on there to ensure Roe is overturned. … He has used the Roberts dodge of saying it is settled law. So what? The supreme court can unsettle it tomorrow. He did not say it was decided correctly.”
Boyle said today: “The Federalist Society, with its complete distortion of the Constitution and phony concept of ‘Originalism,’ has been packing the courts since the Reagan administration. The Democratic Party should embrace counterpacking the courts.
“But the Democratic Party is only going to be moved by sustained, massive protests.
“The Federalist Society is ultimately going to target much of FDR’s New Deal and the Warren Court precedents including even Brown v. Board of Education. Also, freedom of the press — they will seek to overturn New York Times v. Sullivan protecting America’s Fourth Estate.
“Contrary to what many claim, FDR’s plan to expand the Supreme Court was a great success. The court got the message and began to uphold his New Deal legislation after previously striking it down, which prompted his scheme in the first place. So he did not have to pack the court. But these Federalist Society members are so hard core, it will be needed now. [Boyle is a longtime critic of the Federalist Society, see “Hijacking Justice” from 1999 in Emerge magazine.]
“Eliminating life tenure would require a Constitutional amendment, which is a non-starter to begin with and even a waste of time, efforts and money to try. Counterpacking is the best way to deal with this.”
Does the Supreme Court Administer Justice?
June 15, 2022
Abortion rights advocates this week have been blockading intersections near the Supreme Court. At least one activist has been arrested for chaining himself to the fencing that now surrounds the Supreme Court building.
FRANCIS BOYLE, fboyle@illinois.edu
Boyle is professor of law at the University of Illinois. His books include Tackling America’s Toughest Questions.
He has been advocating that the Democrats embrace expanding the court since the Brett Kavanaugh hearings.
Boyle said today: “Any violent actions against members of the Supreme Court are condemnable but should not obscure a central truth to people: The Federalist Society, with its complete distortion of the Constitution and phony concept of ‘Originalism,’ has been packing the courts since the Reagan administration. The Democratic Party should embrace counterpacking the courts.
“Contrary to what many claim, FDR’s plan to expand the Supreme Court was a great success. The court got the message and began to uphold his New Deal legislation after previously striking it down, which prompted his scheme in the first place. So he did not have to pack the court. But these Federalist Society members are so hard core, it will be needed now. [Boyle is a longtime critic of the Federalist Society; see “Hijacking Justice” from 1999 in Emerge magazine.]
“Eliminating life tenure would require a Constitutional amendment, which is a non-starter to begin with and even a waste of time, efforts and money to try. Counterpacking is the best way to deal with this.”
See recent interview: “Noam Chomsky: The Supreme Court Is Wielding Illegitimate Authority in the U.S.”
Sam Husseini of the Institute for Public Accuracy just wrote the piece “Stop Calling them ‘Justices’ — That’s ‘Not Their Job.’” He notes that John Roberts has said: “What is morally just and right — that’s not my job.”
“Counterpacking” the Supreme Court
October 27, 2020
Monday night, Supreme Court member Clarence Thomas swore in Amy Coney Barrett to the court at the White House.
ReformSCOTUS.org has produced two videos, “Time to Talk about Court Reform” and “Our Democracy Has Been Put to the Test.”
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FRANCIS BOYLE, fboyle@illinois.edu
Boyle is law professor at the University of Illinois. In September, he was quoted in the Guardian: “From [Republicans’] perspective, this is the chance of a lifetime to turn the court to the right.”
Boyle has been advocating that the Democrats embrace expanding the court since the Brett Kavanaugh hearing. He said today: “The Federalist Society, with its complete distortion of the Constitution and phony concept of ‘Originalism,’ has been packing the courts since the Reagan administration. The Democratic Party should embrace counterpacking the courts.
“Contrary to what many claim, FDR’s plan to expand the Supreme Court was a great success. The court got the message and began to uphold his New Deal legislation after previously striking it down, which prompted his scheme in the first place. So he did not have to pack the court. But these Federalist Society justices are so hard core, it will be needed now.
“Eliminating life tenure would require a Constitutional amendment, which is a non-starter to begin with and even a waste of time, efforts and money to try. Counterpacking is the best way to deal with this.”
BARRETT
Barrett: Farcical Roots of “Originalism” — Bork Precedent
October 14, 2020
FRANCIS BOYLE, fboyle@illinois.edu
Boyle is a law professor at the University of Illinois. He said today: “Barrett promises to be Scalia on steroids. She has criticized his ‘faint-hearted’ version of ‘originalism.’
“Scalia himself was the first proponent of ‘originalism’ on the Supreme Court. He got it from Robert Bork and Ed Meese, who controlled judicial nominations during the Reagan administration. It was their litmus test for all judicial appointments and nominations.
“But ‘originalism’ is a farce. Justice [Robert H.]Jackson’s landmark opinion in the Steel Seizure case in 1952 actually debunked it decades earlier.” Jackson wrote: “Just what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh. A century and a half of partisan debate and scholarly speculation yields no net result but only supplies more or less apt quotations from respected sources on each side of any question. They largely cancel each other.”
This largely overlooked point was made by Anthony Lewis in 1988 while he was a leading author and The New York Times columnist specializing in legal affairs. See his book review: “Like Interpreting the Dreams of Pharaoh.”
Lewis also noted that Bork began “originalism” in a “law review article that stated conclusions without any detailed historical research. He restated his position many times, making a large political mark, but he never did any real scholarship on what the Framers intended — or whether, indeed, they wanted their intentions to be our guide.” Lewis also wrote that many of those who argue for “originalism” also argue against the clear words of the Constitution when it is convenient for them to do so, for example regarding war powers.
Boyle added: “At the same time, many of the Democrats are obviously not serious about trying to stop this nomination. It’s Kabuki theater to them. It’s part of a long pattern: The Republicans in recent decades have packed the courts with Federalist Society ideologues and the Democrats have let it happen, nominated moderates and in this case didn’t take concrete steps they could have to stop the nomination. The only exception to this was the nomination of Bork himself which was stopped by mass public revulsion and protest.”
Packing the Court and Filling the Streets
September 23, 2020
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FRANCIS BOYLE, fboyle@illinois.edu
Boyle is law professor at the University of Illinois. He was recently on an accuracy.org news release “Supreme Court: After Ginsburg — Barrett?” and was interviewed on the program “Sojourner Truth” with Margaret Prescod on KPFK. He was also recently quoted in the Guardian.
He said today: “We cannot rely upon the Democrats to do the right thing here. And the Courts have already been stacked with Federalist Society nominees by Trump — 200 of them. People need to take to the streets in peaceful nonviolent protests on a massive scale if they want to stop this. It was mass public revulsion at Bork that stopped his nomination. Unlike Bork, whoever Trump nominates will be slickly packaged by the White House handlers. People should not be fooled by that. This is a far rightwing agenda at play that seeks to overturn meaningful primacy of the law and equality for all under the law.
“Otherwise it will have to be Supreme court-packing if and when the Democrats get both Houses of Congress and the Presidency. Franklin Roosevelt threatened up to 15. Sounds good to me.”
The Washington Monthly just published the piece “What Drives Leonard Leo’s Campaign to Remake the Courts?” that examines the role of the Opus Dei-founded Catholic Information Center on K Street in Washington, D.C.
Supreme Court: After Ginsburg — Barrett?
September 21, 2020
On Saturday The Guardian reported: “Francis Boyle, a law professor at the University of Illinois, said: ‘From [Republicans’] perspective, this is the chance of a lifetime to turn the court to the right.
“’If you have a look at the opinions coming down this term, several of them were five to four, waffling on both sides of the issue, but now you’re definitely going to have six to three. So I don’t I think the Republicans will pass this opportunity.'”
NBC reports: “Amy Coney Barrett, a federal appellate court judge, has emerged as one of the front-runners to fill the seat left vacant by the death of Justice Ruth Bader Ginsburg, three sources told NBC News.”
FRANCIS BOYLE, fboyle@illinois.edu
The New York Times in “To Conservatives, Barrett Has ‘Perfect Combination’ of Attributes for Supreme Court” quotes Barrett mentor Judge Patrick J. Schiltz: “The question of what we believe as a religious matter has nothing to do with what we believe a written document says.”
Said Boyle: “That’s rubbish. It’s like John Roberts saying that he was just going to be calling balls and strikes. And she was at Notre Dame Law School. When I interviewed with them in the late 1970s, I was told by the dean that law professors took a required pledge that they had to conduct themselves consistent with ‘Catholic values,’ which I took to mean I would not teach, write or advocate in favor of abortion rights. Has Barrett taken any kind of pledge that’s relevant to her being on the Court? She is being positioned for the Supreme Court to do a job and overturning Roe v. Wade will be part of it.”
Barrett is a member of the rightwing Federalist Society and Boyle has been a longtime critic of the group (see “Hijacking Justice” from 1999 in Emerge magazine), which is now widely acknowledged as being remarkably influential in shaping the Federal judiciary.
Since the Kavanaugh nomination, Boyle has advocated that when the Democrats obtain control of the presidency and both Houses of Congress, they should increase the number of members of the Supreme Court, an idea that has recently gained wider attention, see recent episode of “The Katie Halper Show.”
Boyle added: “Biden has come out against packing the Supreme Court. No surprise there. This is not a symmetrical situation. The Republicans have always played hard-ball on judicial appointments. They have been packing the Federal courts with Federalist Society members since Ronald Reagan and his White House Counsel and then Attorney General Edwin Meese, a leader of the Federalist Society. Establishment Democrats don’t care all that much despite what they say.”
Boyle was the lawyer for the Republic of Bosnia and Herzegovina during the war and genocide against them before the International Court of Justice. In that capacity, he represented the 40,000 raped women of Bosnia, argued their case for genocide before the World Court, and won two World Court Orders protecting them.
KAVANAUGH
Is Kavanaugh a War Criminal?
September 25, 2018
Amnesty International USA just issued a “Rare Call for a Halt on Kavanaugh Nomination.”
The group states: “Amnesty International believes that the vetting of Brett Kavanaugh’s record on human rights has been insufficient and calls for the vote on his nomination for Supreme Court of the United States to be further postponed unless and until any information relevant to Kavanaugh’s possible involvement in human rights violations — including in relation to the U.S. government’s use of torture and other forms of ill-treatment, such as during the CIA detention program — is declassified and made public.”
Margaret Huang, executive director of Amnesty International USA said: “Amnesty International takes no position on the appointment of particular individuals to government positions, unless they are reasonably suspected of crimes under international law and could use their appointment to the position in question to either prevent accountability for these crimes or to continue perpetration.”
See report from earlier this month on “Confidential Emails Reveal Kavanaugh Wanted to Make Author of Bush-era Torture Memo a Judge” about just some of Kavanaugh’s documents highlighted by Sen. Cory Booker.
FRANCIS BOYLE, fboyle at illinois.edu
Boyle is professor of international law at the University of Illinois College of Law. He was an elected member of the Board of Directors of Amnesty International USA from 1988 to 1992.
He said today: “Contrary to the mantra that the Democrats on the Senate Judiciary Committee have it in for Kavanaugh, they’ve largely let him off the hook on a number of critical issues, instead favoring theatrics.
“While there’s substantial attention being paid to the serious charges of sexual assault by Kavanaugh, there’s been very little note that he is a putative war criminal. Specifically, recently released documents show that while Kavanaugh worked for the George W. Bush administration, one of the people he attempted to put on the judiciary was John Yoo, who authored many of the justifications for torture that came out of the Bush administration.
“I’ve had very serious problems with others placed on the Supreme Court, but I’ve never thought of them as putative war criminals. And while other parts of Kavanaugh’s professional record are unseemly, including his lying under oath, his work for Ken Starr and for Bush’s election during the Florida standoff in 2000, this stands out even in such a record.
“And while some of the current members of the Supreme Court have been members of the Federalist Society, none have been of this ilk of members like John Yoo and Bush Attorney General/White House Counsel Alberto Gonzalez — as Kavanaugh, who worked for Gonzalez at the White House. The U.S. Senate must not place a putative war criminal on the U.S. Supreme Court.” See Boyle’s analysis in The Guardian, “The Stakes Are Astronomical: Supreme Court Hearing Will Be a Battle,” Sept. 3, 2018.
The following exchange is from a debate between Yoo and Doug Cassel, director of Notre Dame Law School’s Center for Civil and Human Rights held on Dec. 1, 2005:
Cassel: “If the president deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?”
Yoo: “No treaty.”
Cassel: “Also no law by Congress — that is what you wrote in the August 2002 memo.”
Yoo: “I think it depends on why the president thinks he needs to do that.”
Listen to audio here.
Will Kavanaugh Take a Lie Detector Test?
September 17, 2018
The Washington Post reports: “An attorney for Christine Blasey Ford, the woman who alleged Judge Brett M. Kavanaugh assaulted her when the two were in high school, said Monday that Ford is willing to testify about the allegations before the Senate Judiciary Committee.” The Post also reports “On the advice of [attorney Debra] Katz, who said she believed Ford would be attacked as a liar if she came forward, Ford took a polygraph test administered by a former FBI agent in early August.”
Time magazine just published the piece “Brett Kavanaugh Can’t Be Trusted. We Know Because We Worked as Counsel to Senators When He Was in the Bush White House.”
FRANCIS BOYLE, fboyle at illinois.edu
Boyle is professor of international law at the University of Illinois College of Law and has taught criminal law. He said today: “Kavanaugh clearly has little compulsion against lying under oath. Prof. Christine Blasey Ford has taken and passed a lie detector test. So the question becomes: Will Kavanaugh take a lie detector test?” See Boyle’s analysis in The Guardian and the IPA news release “Kavanaugh and the Federalist Society” and “Will a Member of Congress Move to Impeach Kavanaugh?”
See recent piece from The Daily Beast: “Newly Released Emails Show Brett Kavanaugh May Have Perjured Himself at Least Four Times,”
Also, see from FAIR: “Establishment Media Shy Away From Claims of Perjury by Kavanaugh.”
Will a Member of Congress Move to Impeach Kavanaugh?
September 10, 2018
FRANCIS BOYLE, fboyle at illinois.edu
Boyle is professor of international law at the University of Illinois College of Law. He said today: “What’s needed is a brave member of the House to introduce a Bill of Impeachment against Kavanaugh immediately for perjury to force this issue. That’s what we need. Machinations from the Democratic Party leadership are more Kabuki theater.” See recent comments from Boyle on The Real News, Sept. 6, 2018, in The Guardian and the IPA news release “Kavanaugh and the Federalist Society.”
Boyle was was legal adviser to Rep. Henry B. González when he released classified material on the House floor in 1992 in an attempt to impeach George H. W. Bush following the Gulf War. Bush would later write in his memoirs that if the Gulf War “drags out, not only will I take the blame, but I will probably have impeachment proceedings filed against me.”
See recent piece from The Daily Beast: “Newly Released Emails Show Brett Kavanaugh May Have Perjured Himself at Least Four Times,” which notes the documentation of Kavanaugh’s past falsehoods is only due to recently released emails, but that “only 7 percent of Kavanaugh’s White House records have been released to the public. …
“The clearest contradiction between Judge Kavanaugh’s sworn testimony and the formerly confidential email record concerns the nomination of Judge William Pryor, a conservative firebrand. In 2006, Kavanaugh was asked, by the late Sen. Ted Kennedy, whether Pryor’s extreme statements disturbed him. Kavanaugh replied that he was not involved in the selection or vetting of Judge Pryor.”
The Daily Beast notes that last week, Sen. Patrick Leahy entered “a formerly-confidential email into the record that states clearly that Kavanaugh actually did interview Pryor. ‘How did the Pryor interview go?’ he was asked in December, 2002. ‘Call me,’ he replied.”
The just-disclosed emails also show a leading voice defending Kavanaugh knew he was actually involved in the Pryor nomination. Benjamin Wittes, senior fellow at the Brookings Institution and editor-in-chief of Lawfare blog was himself communicating with Kavanaugh about the Pryor nomination at the time, writing to Kavanagh: “I take it back. I will write something about the decision to nominate Pryor promptly. … You should send over any exculpatory information you might have quickly.”
Wittes just responded to this revelation by writing: “I’m off Twitter until further notice.”
Will the Public See Incriminating Kavanaugh Documents?
September 6, 2018
Sen. Cory Booker (D-NJ): “I stand by the public’s right to have access to this document and know this nominee’s views on issues [that are] are profoundly important — like race and the law, torture and other issues.”
FRANCIS BOYLE, fboyle at illinois.edu
Boyle was legal adviser to Rep. Henry B. González when he released classified material on the House floor in 1992 in an attempt to impeach George H. W. Bush following the Gulf War. See New York Times piece at the time: “C.I.A. Chief Says Legislator Disclosed Secrets.”
Boyle, who is professor of international law at the University of Illinois College of Law, said today: “If Booker and the other Democratic senators are serious here, they should all start sequentially releasing all prejudicial and incriminating documents against [Supreme Court nominee Brett] Kavanaugh now during the course of the hearings when they will be protected by the Speech or Debate Clause [of the Constitution]. This would include documents relating to torture and war crimes.”
Boyle was featured in a recent Guardian overview piece on the Kavanaugh nomination. Also, see his comments on an IPA news release: “Kavanaugh and the Federalist Society.”
Kavanaugh: “Stakes are Astronomical”
September 4, 2018
Boyle is professor of international law at the University of Illinois College of Law. He is quoted in a Guardian overview “‘The Stakes are Astronomical’: Brett Kavanaugh Confirmation Hearing Will be a Battle Royale,” Sept. 3, 2018, which states: “’The only hope the country has is that Democrats will treat Kavanaugh like a hostile witness on the witness stand under cross-examination, throw him off script and break him down,’ said Francis Boyle, a law professor at the University of Illinois.“’You do not need a gentleman or gentlewoman to deal with Kavanaugh. You need a district attorney. Some Democrats are going to have to go for the jugular.’
“But Kavanaugh, 53, is no Daniel in the lions’ den. He is the ultimate Washington insider, steeped in the city’s political and legal establishments. His father spent more than two decades in the city as a lobbyist for the cosmetics industry. …”The groups Women’s March and Center for Popular Democracy Action are planning a day of action in Washington on Tuesday.
“Boyle … shares these concerns. ‘I think Kavanaugh was put on there to ensure Roe is overturned,’ he said. ‘He has used the Roberts dodge of saying it is settled law. So what? The Supreme Court can unsettle it tomorrow. He did not say it was decided correctly.’
“Critics note that Trump has relied heavily on the rightwing Heritage Foundation and Federalist Society to develop his shortlist for Supreme Court nominations. Boyle said: ‘Kavanaugh is an extreme ideologue and a legal hatchet man for the Federalist Society. He was their spear carrier for years. He is being put on there by Trump to do their business and make the court as far right as he can under the circumstances. It’s going to be bad for a lot of people: for gays, for African Americans, for labour, for women.'”
Kavanaugh and the Federalist Society
July 10, 2018
Supreme Court nominee Brett Kavanaugh claimed Monday night: “No president has ever consulted more widely or talked to more people from more backgrounds to seek input for a Supreme Court nomination.”
FRANCIS BOYLE, fboyle at illinois.edu
Boyle is professor of international law at the University of Illinois College of Law. He is a longtime critic of the Federalist Society. See this in-depth piece on the group in Emerge magazine, “Hijacking Justice,” October 1999.
He said today: “Brett Kavanaugh was chosen off a list of possibilities put to Trump by Leonard Leo, who is ‘on leave‘ as executive vice president of the Federalist Society.
“Kavanaugh drafted portions of the Starr report, a political hit job. Perhaps more importantly, he drafted parts of the Ken Starr ‘referral’ to the U.S. Congress recommending that Bill Clinton be impeached for a blowjob and lying about a blowjob.
“Kavanaugh worked for then-Republican nominee George W. Bush in Bush v. Gore, which effectively robbed the American people of the presidency.
“Kavanaugh amusingly invoked the name of Elena Kagan in his remarks last night, as if her hiring him at Harvard made him some kind of moderate. But it was Kagan who said ‘I love the Federalist Society.’
“The fact that if Kavanaugh gets through, the entire Supreme Court will have gone to Harvard or Yale is terrible for the country. And I say that as having graduated magna cum laude from Harvard Law.
“Trump acknowledged Edwin Meese last night, which is fitting because in addition to being Ronald Reagan’s Attorney General, he was a leading founder of the Federalist Society. The Independent Counsel in the Iran-Contra Scandal Judge Lawrence Walsh found that Meese was the architect of its cover-up by the Reagan administration.
“Almost all of the Bush administration lawyers responsible for its war and torture memos are members of the Federalist Society. Many members of the Federalist Society say that Brown v. Board of Education [which struck down ‘separate but equal’] was decided wrongly and practice to overturn it at the United States Supreme Court.”
Boyle said in a recent interview with The Real News “Justice Anthony Kennedy’s Retirement: End of Roe v. Wade?” June 28, 2018, that since the Robert Bork nomination “all these nominees have learned that lesson, and they will present their narrative, their script, and they will stick to it to the end. … And the Democrats aren’t going to call them. They didn’t really call Gorsuch on anything. So this is all about raw power politics.”
Boyle added: “I first received the ire of the Federalist Society when they had a meeting about how to stop me from helping expose them, when I passed around a quote from Lawrence Walsh about the group. He, a lifelong Republican, wrote: ‘I was concerned about the continuing political allegiance of Republican judges as manifested in the Federalist Society. Although the organization was not openly partisan, its dogma was political. It reminded me of the communist front groups of the 1940s and 1950s, whose members were committed to the communist cause and subject to communist direction but were not card-carrying members of the Communist Party. In calling for the narrow construction of constitutional grants of government power, the Federalist Society seemed to speak for right-wing Republicans. I was especially troubled that one of White House Counsel Boyden Gray’s assistants had openly declared that no one who was not a member of the Federalist Society had received a judicial appointment from President Bush.'”
KAGAN
Byrd, Kagan Hearings and the Constitution
July 1, 2010
CBS News reports: “The Senate Judiciary Committee will suspend Solicitor General Elena Kagan’s Supreme Court confirmation hearing from 10 a.m. to 4 p.m. on Thursday while the late-Sen. Robert Byrd lies in state at the Capitol.”
Byrd famously made a habit of carrying a copy of the U.S. Constitution in his shirt pocket. In 2004, he succeeded in passing legislation that deemed September 17 “Constitution Day.”
Byrd is prominently featured in the 2007 film “Body of War” by Phil Donahue.
During the Kagan hearings, several Republicans urged Kagan to be a “strict constructionist” (Sen. Tom Coburn, R-Okla.). Meanwhile, many Democrats argued she would “uphold the Constitution” (Sen. Dick Durbin, D-Ill.). Several legal analysts however warn that both Democratic and Republican administrations have been violating basic Constitutional rights.
Available for interviews:
FRANCIS BOYLE
Professor of law at the University of Illinois, Boyle is author of Tackling America’s Toughest Questions. He said today: “After 9/11 Sen. Byrd made repeated appearances in the Senate condemning violations of the Constitution, the war against Iraq and the Bush police state tactics. During the same period, Kagan was remarkably silent and has supported most of those Bush policies in her capacity as U.S. Solicitor General. As Dean of Harvard Law, she hired Jack Goldsmith who wrote torture memos for Bush and is testifying on Kagan’s behalf.”
Kagan “Similar to Bush on Executive Power”
June 28, 2010
FRANCIS BOYLE
Professor of law at the University of Illinois, Boyle is author of Tackling America’s Toughest Questions. The Los Angles Times on Sunday wrote that Supreme Court nominee Elena Kagan’s “most audacious move [while Dean at Harvard Law School] was to recruit Jack Goldsmith, a lawyer who had served in the George W. Bush Justice Department and helped craft anti-terrorism policy.
“Kagan backed the hire against criticism from some liberal faculty and alumni. ‘I think it was a disgrace,’ said Francis Boyle, a Harvard Law graduate and a professor at the University of Illinois.”
Goldsmith is on the witness list in favor of Kagan. Boyle said today: “Goldsmith is regarded by myself and many others in the field as a war criminal. He wrote some of the memos that attempted to make violations of the Geneva Conventions appear legal. Kagan actually bragged about ‘how proud’ she was to have hired Goldsmith after one of his criminal Department of Justice memoranda was written up in the Washington Post.” See Washington Post: “Memo Lets CIA Take Detainees Out of Iraq: Practice Is Called Serious Breach of Geneva Conventions.”
Also see IPA news release with Boyle: “Supreme Court Pick: Kagan ‘Loves’ the Federalist Society.”
Kagan: * Goldman Sachs * Shifting Court to Right?
May 10, 2010
The Wall Street Journal reports: “The White House said Friday that Elena Kagan’s membership on an advisory panel for the securities firm Goldman Sachs Group Inc. wouldn’t disqualify her for a position on the Supreme Court. … From 2005 to 2008, Ms. Kagan was a paid member of the Research Advisory Council of Goldman Sachs Global Markets Institute, according to financial-disclosure reports she filed after being appointed to her current job. The form shows she was paid $10,000 in 2008, when she was dean of Harvard Law School.”
On April 9, Obama said he would nominate “someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”
Professor of law at the University of Illinois, Boyle is author of “Tackling America’s Toughest Questions.” He was recently quoted on an Institute for Public Accuracy news release titled “Supreme Court Pick: Kagan ‘Loves’ the Federalist Society,” in which Boyle stated: “Five currently on the U.S. Supreme Court were or are members of the Federalist Society: Harvard Law graduate Roberts; Harvard Law graduate Scalia; Harvard Law graduate Kennedy; Yale Law graduate Thomas; and Yale Law graduate Alito. A narrow elite is imposing itself through the legal system, and ordinary Americans need to start asserting themselves.”
Supreme Court Pick: Kagan “Loves” the Federalist Society
April 13, 2010
Solicitor General Elena Kagan is widely reported to be a leading contender for the Supreme Court position being vacated by John Paul Stevens.
FRANCIS BOYLE
Professor of law at the University of Illinois, Boyle is author of “Tackling America’s Toughest Questions.” He said today: “As dean of the Harvard Law School, Kagan hired Bush’s outgoing director of the Office of Legal Counsel, Jack Goldsmith, as a law professor. Goldsmith is regarded by myself and many others in the field as a war criminal. He wrote some of the memos that attempted to make violations of the Geneva Conventions appear legal. Kagan actually bragged about ‘how proud’ she was to have hired Goldsmith after one of his criminal Department of Justice memoranda was written up in the Washington Post.
“During the course of her Senate confirmation hearings as Solicitor General, Kagan explicitly endorsed the Bush administration’s bogus category of ‘enemy combatant,’ whose implementation has been a war crime in its own right. Now in her current job as U.S. Solicitor General, Kagan is quarterbacking the continuation of the Bush administration’s illegal and unconstitutional positions in U.S. federal court litigation around the country, including in the U.S. Supreme Court. For example, early this month, the Obama administration lost an illegal wiretapping case. One of the lawyers in the case who won, Jon Eisenberg, said the Obama administration is as bad or worse than the Bush administration when it comes to issues like state secrets and wiretapping.
“Kagan is apparently being backed by several people who are indebted to her from her time at Harvard. [Professors Laurence] Tribe, [Charles] Ogletree and [Alan] Dershowitz all had plagiarism scandals while Kagan headed up the law school — and she in effect bailed them all out. Tribe and Ogletree were teachers/mentors to Obama and still advise him today, Tribe recently taking a job in the Department of Justice along with Kagan. She was named dean at Harvard by Larry Summers, who helped deregulate much of Wall Street in the Clinton administration and organize much of its bailout under Obama.
“Kagan has said ‘I love the Federalist Society.’ This is a right-wing group; almost all of the Bush administration lawyers responsible for its war and torture memos are members of the Federalist Society. Many members of the Federalist Society say that Brown v. Board of Education [which struck down ‘separate but equal’] was decided wrongly.
“Five currently on the U.S. Supreme Court were or are members of the Federalist Society: Harvard Law graduate Roberts; Harvard Law graduate Scalia; Harvard Law graduate Kennedy; Yale Law graduate Thomas; and Yale Law graduate Alito. A narrow elite is imposing itself through the legal system, and ordinary Americans need to start asserting themselves.”
Boyle is a former chair of the Harvard Law School Fund Campaign for Greater Illinois and a magna cum laude graduate of Harvard Law School.
Background:
Glenn Greenwald on Tuesday wrote in “The Case Against Elena Kagan“: “The prospect that Stevens will be replaced by Elena Kagan has led to the growing perception that Barack Obama will actually take a Supreme Court dominated by Justices Scalia (Reagan), Thomas (Bush 41), Roberts (Bush 43), Alito (Bush 43) and Kennedy (Reagan) and move it further to the Right. Joe Lieberman went on Fox News this weekend to celebrate the prospect that ‘President Obama may nominate someone in fact who makes the Court slightly less liberal.'”
The New York Times reported on Friday: “In an interview last week, [Stevens] said that every one of the dozen justices appointed to the court since 1971, including himself, was more conservative than his or her predecessor. ‘We’ll wait and see to see if the most recent change fits that,’ he said of Justice Sonia Sotomayor, who joined the court last year. ‘But prior to Sonia’s joining the court that was true with the possible exception of Ruth Ginsburg.'”
The Murdoch-owned Wall Street Journal reported Monday: “As dean of Harvard, Ms. Kagan cultivated good relations with conservatives, hiring several professors with right-leaning views and reaching out to the Federalist Society, a training ground for lawyers who often go on to populate Republican administrations.”
Jeff Cohen wrote last year: “Will Obama Move Supreme Court Rightward?”
The Obama White House responded to these criticisms in Michael Kranish, “As Potential Pick for Court, Kagan Gets Fire From Left,” Boston Globe, April 15, 2010.
Kagan on the Supreme Court?
May 1, 2009
Solicitor General Elena Kagan is widely reported to be a leading contender for the Supreme Court position being vacated by David Souter.
FRANCIS BOYLE
Professor of law at the University of Illinois, Boyle is author of Tackling America’s Toughest Questions. He said today: “As dean of the Harvard Law School, Kagan hired Bush’s outgoing director of the Office of Legal Counsel, Jack Goldsmith, as a law professor. Goldsmith is regarded by myself and many others in the field as a war criminal. He wrote some of the memos that attempted to make violations of the Geneva Conventions appear legal. Kagan actually bragged about ‘how proud’ she was to have hired Goldsmith after one of his criminal Department of Justice memoranda was written up in the Washington Post.
“Then, during the course of her Senate confirmation hearings as Solicitor General, Kagan explicitly endorsed the Bush administration’s bogus category of ‘enemy combatant,’ whose implementation has been a war crime in its own right. Now in her new job as U.S. Solicitor General, Kagan is quarterbacking the continuation of the Bush administration’s illegal and unconstitutional positions in U.S. federal court litigation around the country, including in the U.S. Supreme Court.”
Boyle is a former chair of the Harvard Law School Fund Campaign for Greater Illinois and a magna cum laude graduate of Harvard Law School.
For background, see Washington Post: “Memo Lets CIA Take Detainees Out of Iraq: Practice Is Called Serious Breach of Geneva Conventions.”
Solicitor General Nominee Hired Torture Memo Writer
February 9, 2009
Harvard Law School Dean Elena Kagan is scheduled to have a hearing before the Senate Judiciary Committee on Tuesday for the position of solicitor general. She has frequently been mentioned as a possible nominee to fill Ruth Bader Ginsburg’s seat on the Supreme Court.
FRANCIS BOYLE
Professor of law at the University of Illinois, Boyle is author of Breaking All the Rules. He said today: “As dean of the Harvard Law School, Kagan hired Bush’s outgoing director of the Office of Legal Counsel, Jack Goldsmith, as a law professor. Goldsmith is regarded by myself and many others in the field as a war criminal. He wrote some of the memos that attempted to make violations of the Geneva Conventions appear legal. Kagan actually bragged about ‘how proud’ she was to have hired Goldsmith after one of his criminal Department of Justice memoranda was written up in the Washington Post.
“Kagan is neither fit nor qualified to become Solicitor General for the U.S. Department of Justice — the proverbial ‘Tenth Justice’ of the U.S. Supreme Court — and thus become a leading contender to replace the anti-totalitarian but now cancer-stricken Justice Ginsburg.”
Boyle is a former chair of the Harvard Law School Fund Campaign for Greater Illinois and a magna cum laude graduate of Harvard Law School.
For background, see Washington Post: “Memo Lets CIA Take Detainees Out of Iraq: Practice Is Called Serious Breach of Geneva Conventions.”
ALITO
The Filibuster Option
January 25, 2006
FRANCIS BOYLE
Professor of law at the University of Illinois, Boyle said today: “Alito is an extremist. Any judge who refuses to declare that an innocent person has a constitutional right to be free from execution is by definition an extremist. … If confirmed by the Senate, Alito will join Scalia, Thomas and Roberts to form a solid block of four Federalist Society justices. … We need only one U.S. Senator with courage, integrity, principles and a safe seat in order to start the filibuster.”
Presidential Powers
January 10, 2006
FRANCIS BOYLE
Boyle is professor of law at the University of Illinois. Today Sen. Patrick Leahy asked Judge Samuel Alito: “If the Congress passed a law prohibiting torture,” could the president “immunize people from prosecution if they violated our laws on torture?” Said Boyle: “Instead of just saying ‘no’ to Leahy’s question, Alito is prepared to quibble about the president’s ‘right’ to torture, and leave that ‘right’ open, depending upon the circumstances.”
· Fitzgerald · Alito
November 1, 2005
FRANCIS BOYLE
Boyle is professor of law at the University of Illinois. The Washington Post noted today that “Alito has been a member of the Federalist Society.” Boyle commented: “The Federalist Society and its members such as Judge Alito stand for the general proposition that the United States Supreme Court should return to what they believe to be the ‘good old days’ of the Herbert Hoover administration and its Supreme Court.”
More Information
Background: People for the American Way
“In one case that came before Alito, an African American had been convicted of felony murder and sentenced to death by an all-white jury from which black jurors had been impermissibly struck. Alito cast the deciding vote and wrote the majority opinion in a 2-1 ruling rejecting the defendant’s claims. The full Third Circuit reversed Alito’s ruling, and the majority specifically criticized him for having compared statistical evidence about the prosecution’s exclusion of blacks from juries in capital cases to an explanation of why a disproportionate number of recent U.S. presidents have been left-handed. According to the majority, ‘[t]o suggest any comparability to the striking of jurors based on their race is to minimize the history of discrimination against prospective black jurors and black defendants.'”
ROBERTS
As the UN Meets: Interviews Available on International Law · Roberts · Chavez · Sharon
September 14, 2005
FRANCIS BOYLE
Professor of international law at the University of Illinois, Boyle said today: “As Roberts made clear in Tuesday’s hearings during his interchange with Senator Leahy, he is a partisan of the Imperial Presidency. For example, Roberts refused to repudiate and condemn the infamous Korematsu decision which authorized the president to intern U.S. citizens of Japanese descent during World War II. In his own recent Hamdan decision, Roberts gave President Bush a blankcheck to wage his ‘war on terrorism’ in violation of the Geneva Conventions….” Boyle is author of the book Destroying World Order: A Guide to Impeaching President George W. Bush. [Boyle can also address the subject of Roberts and membership in the Federalist Society.]
Law Professors Scrutinize Roberts * Quid Pro Quo? * Guantánamo Ruling * Federalist Society
August 18, 2005
FRANCIS BOYLE
Professor of international law at the University of Illinois, Boyle said today: “In his answers to the Senate Judiciary Committee, John Roberts stated that he had ‘no recollection’ of his membership in the Federalist Society and being on its Steering Committee for Washington, D.C. Nevertheless, a high-level official in the Federalist Society has confirmed Roberts’ membership, and it has also been confirmed that all Federalist Society members pay dues. In other words, Roberts lied to Congress, which is a crime in its own right. For that reason alone, Roberts is disqualified to be confirmed by the U.S. Senate as an Associate Justice of the U.S. Supreme Court. … The Senate Judiciary Committee must grill Roberts on all the positions and activities of the Federalist Society and its prominent members before rejecting him, thus exposing before a national audience the pernicious and insidious role that the Federalist Society has played in the American legal profession for the past two decades.”
FEDERALIST SOCIETY
Judicial Nominees: Implications as Federalist Society Supplants ABA
May 9, 2001
As President Bush makes appointments to federal courts, the following analysts are available for interviews:
FRANCIS BOYLE
Law professor at the University of Illinois, Boyle said today: “The Federalist Society lawyers want to go beyond getting rid of affirmative action. They want to go back to Brown vs. Board of Education. We have Justice Antonin Scalia (who advised the Federalist Society at its inception and later hired two of its three founders as his law clerks); a few years ago he gave a public lecture at Columbia Law School where he stated that if Brown vs. Board of Education was to be presented to him today, he would rule against the plaintiffs…. What we are seeing under the Federalist Society is the judiciary, law schools and legal education being used to promote a right-wing, reactionary political agenda to the detriment of people of color and the poor of our society.”
Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign, Illinois 61820
Phone: 217-333-7954
Fax: 217-244-1478
fboyle@law.uiuc.edu
9 September 1997
Memorandum
To: Robert H. Bork
Federalist Society
(via fax)
Dear Bob:
Concerning your fund-raising letter of 28 August that just came to my attention, I want to thank you from the bottom of my heart for publicly associating me with a Lawyer and a Judge who has the principles, courage and integrity of Lawrence Walsh.
For your information, that message and others like out were sent out all over the internet, not just to 30 professors, together with the full text of Judge Walsh's attack on the Federalist Society. Out of respect for Judge Walsh, I certainly do hope that my professorial colleagues will pay the most serious attention to what he had to say about the Federalist Society. After all, Judge Walsh is a pillar of the American Legal Establishment and of the Republican Party. As for myself, I have always been a political independent and resent your implication that I am a member of the Democrat Party.
Be that as it may, it seems to me that you have only (once again!) made a fool of yourself by publicly attacking a Lawyer and a Judge with the courage, integrity and principles of Judge Walsh--characteristics that you yourself were not noted for as Solicitor General (when you fired Archie Cox, the first Special Prosecutor), during your tenure on the bench, or during your Supreme Court nomination hearings. Rather than publicly attacking Judge Walsh, I suggest that you personally as well as the Federalist Society institutionally should be giving the most serious consideration to what he had to say.
Yours very truly,
Francis A. Boyle
Professor of Law
cc: Judge Lawrence Walsh
From Iran-contra Independent Counsel Lawrence Walsh, Firewall:
According to the conventional wisdom, we were in a double bind: The judges appointed by Democratic presidents were supposedly most concerned with protecting the constitutional rights of persons prosecuted for crimes, while most of the other judges owed their appointments to Ronald Reagan or George Bush, who had stated publicly and emphatically that they hoped that North would not be convicted.
Over the years, I had often found such simplistic views to be wrong. Most judges overcome the prejudices and alliances they had when appointed to the federal bench. During my three and one-half years on the federal district court in New York, I had experienced the merging process by which new judges are absorbed into their courts. My hard-line political and professional views had moderated during lunchroom conversations with Learned Hand, Jerome Frank, and Harold Medina and had dissolved after a couple of my decisions had been reversed on appeal.
But I was concerned about the continuing political allegiance of Republican judges as manifested in the Federalist Society. Although the organization was not openly partisan, its dogma was political. It reminded me of the communist front groups of the 1940s and l950s, whose members were committed to the communist cause and subject to communist direction but were not card-carrying members of the Communist Party. In calling for the narrow construction of constitutional grants of governmental power, the Federalist Society seemed to speak for right-wing Republicans. I was especially troubled that one of White House Counsel Boyden Gray's assistants had openly declared that no one who was not a member of the Federalist Society had received a judicial appointment from President Bush.
From Hijacking Justice:
"This is more than an attack on affirmative action being spear-headed by the Federalist Society lawyers," observes Francis A. Boyle, a law professor at the University of Illinois. "They want to go beyond getting rid of affirmative action. They want to go back to Brown vs. Board of Education.
"We have Justice Antonin Scalia (who advised the Federalist Society at its inception and later hired two of its three founders as his law clerks), who two years ago gave a public lecture at Columbia Law School where he stated if Brown vs. Board of Education was to be presented to him today, he would rule against the plaintiff. In other words, this was a threat that if Brown vs. Board of Education was voted on before the Supreme Court, he would overturn it."
That type of thinking disturbs Lawrence E. Walsh. Before becoming president of the American Bar Association in 1975, Walsh chaired an ABA panel that approved President Nixon's choices of federal appeals judges, Clement Haynesworth and G. Harold Carswell, to serve on the Supreme Court. In 1969, the Senate rejected Haynesworth because of conflict-of-interest fears. The following year, Carswell was rejected by the Senate after it was disclosed that he had given a speech as a lawyer expressing his "vigorous belief in the principles of White supremacy."
"My concern is there is going to be a cleavage in the courts between the Federalist Society members and nonmembers," says Walsh, a former federal judge. "Anything that perpetuates that kind of ideological cleavage is not good for the unity of the court system. Ideally, it seems to me that judges should avoid memberships [in politically and substantively motivated organizations] but, of course, they don't do that."…
"People have to understand, whether they like lawyers or not, law schools have an enormous amount of power, whether it's power for good or evil. Unfortunately, what we are seeing under the Federalist Society is law schools and legal education being used to promote racism, bigotry and Right-wing politics. These people believe in the Bell Curve," says Prof. Boyle of the University of Illinois, referring to a controversial theory by Charles Murray and Richard J. Herrnstein about the supposed low intelligence level of some non-Whites. "You have to understand that. Just as the Federalist Society did to the federal judiciary, they are now trying to do to law schools." Boyle and others say this is done by establishing well-endowed law professorships and speaking tours for the true believers. "Where they once were scholars with Right-wing foundations like the Heritage Foundation, American Enterprise Institute and the Cato Institute, they are now getting credentialed as law professors," he notes…
Former federal Judge Lawrence Walsh puts it more bluntly. "The impression I have is they are trying to return to the 18th century and undo the work of the Supreme Court since the New Deal," Walsh says. "And I think it is wrong to put someone on the court who has a pre-commitment with a political dogma, whether it's the Ku Klux Klan or the Federalist Society."
(Emphasis added.)
Francis A. Boyle
Law Building
504 E. Pennsylvania Ave.
Champaign IL 61820 USA
Phone: 217-333-7954
Fax: 217-244-1478
(personal comments only)
