On Thursday, thousands of guests gathered in Union Station to kick off the Federalist Society’s annual conference in an event famously coined the “Scalia Dinner,” a thoughtful nod to the late Supreme Court justice whose writings have served as the foundation of modern conservative jurisprudence.
But this year’s dinner was different from recent iterations. In addition to marking the inception of the National Lawyer’s Conference, it featured the first public speaking engagement of Justice Brett Kavanaugh since his contentious confirmation hearings last fall.
At the start of his speech, the screeching of protesters, along with loud whistles, could be heard outside. Activists had stationed themselves by the entrance of the gala, positioning a large screen in the center of the roundabout outside Union Station that replayed Christine Blasey Ford’s testimony for gala-goers as they entered the venue. Since I was seated inside, I cannot tell you how long they played the testimony on loop.
The centrality of Kavanaugh to the event was undoubtedly a deliberate choice and a good one. Conservatives, and by proxy the Federalist Society, refuse to indulge the “Burn the Witch” rhetoric that has become all-consuming on the left.
Kavanaugh’s speech, which spoke overwhelmingly of his gratitude for various people who helped him and his family to weather the storm of the confirmation hearings, also offered another message: one of supreme fearlessness. A Roman Catholic, he spoke warmly of the hymn “Be Not Afraid,” a song he learned in school as a child but had not come to fully appreciate until adulthood—and perhaps, until the past year.
The applause was frequent and energetic, demarcating each line of his speech as if it were an isolated statement. The liveliness of the audience’s support proved invaluable later, as the spirited clapping managed to drown out the whistles of the protesters that cut through the walls of Union Station.
Indeed, there was a distinct threshold moment at which the applause could have died down but instead grew bolder and louder. Amidst a crescendo of whistles, audiences stood, staring at Kavanaugh, cheering in unison, having reached an unspoken consensus that the only way to silence the protesters was to be louder than them. In that moment, there was a powerful and unmistakable unity. In a way, it felt as if we were doing what we felt constantly necessary in the face of the left’s baseless and vulgar hysteria—we were defending him.
When many warned that the left’s destructive approach to the Kavanaugh confirmation would bring conservatives together, they were mostly correct. Kavanaugh’s speech, nay the experience of Kavanaugh’s speech—as well as the Federalist Society’s National Lawyers Convention as a whole—provided a healthy reminder of what lies at stake in the battle over the nation’s judiciary. As a hint, it’s not solely the judiciary.
As Attorney General William Barr noted at the convention on Friday, “in waging a scorched earth, no-holds-barred war of ‘Resistance’ against this Administration, it is the Left that is engaged in the systematic shredding of norms and the undermining of the rule of law.” For many on the left, opposing Kavanaugh had fit comfortably into the larger mission of rabidly derailing the entirety of President Trump’s agenda. But as often goes with scorched-earth campaigns, the valuable elements—in this case, the judicial norms we cherish—become collateral damage, sacrificed on the altar of unflinching progressivism.
Senate Majority Leader Mitch McConnell echoed a similar sentiment in his Thursday evening speech at the Scalia Dinner, noting that the Federalist Society wasn’t about upping the ante on some political scorecard but about promoting the “rule of law” as our Framers understood it and as Constitution’s text itself communicates. At a time when the left routinely advocates for dramatic transformations to society and with the hope of employing the judiciary to enforce it (should a Democrat win in 2020 and either pack the courts or appoint several living constitutionalists), the notion of a non-partisan, properly cabined judiciary is something to aspire to.
For years, the left has been labeling the Federalist Society a “right-wing conspiracy,” with some Democratic senators even portraying the organization as a cast of shady and subversive characters. If anything, the latest protests outside Union Station, in all their theatric glory, reveal that the Federalist Society has become the latest boogeyman of the self-anointed Resistance.
Despite the left’s best attempts to “expose” the Federalist Society as some secret scheme as opposed to an academic and professional endeavor, they foolishly miss the mark by a mile. The Federalist Society scares the left, partly because the organization envisions an ideal judiciary as entirely non-legislative and as wholly confined to the text before it. In the world of the Federalist Society, a “living” Constitution invites an undoing of our democratic principles by subverting the will of the people to the predilections of an unelected judiciary.
As asserted by McConnell on Thursday and as is frequently stressed by Fed Soc-ers, the responsibility of the judiciary is “to say what the law is, not what it should be.” There’s a disturbing trend on the left to refashion society into what they have determined it should be, even if that means upending democratic norms and self-government itself to do. As Barr stated on Friday, “Their [the Left’s] holy mission is to use the coercive power of the State to remake man and society in their own image, according to an abstract ideal of perfection. Whatever means they use are therefore justified because, by definition, they are a pursing a deific end.”
Although one could reduce and demonize the Federalist Society mission into one devoted to securing “Republican” seats on the Supreme Court, this attitude is far from the truth. Justice Scalia, a championed thinker in Federalist Society circles, spoke openly and frequently about the dangers of a politicized Supreme Court. For the Federalist Society, it’s about cultivating a culture that appreciates the thoughtfully designed contours of our democratic republic.
Nothing typifies this sentiment more than the speech given by Professor Richard Epstein on Thursday evening. For those unfamiliar, Epstein is an intellectual giant, a staggeringly prolific author, and deeply insightful thinker who has never held political office or sought to court partisan favor.
To a packed hall on Thursday night, Epstein reminded McConnell of the importance of nurturing genuinely smart legal discourse — that, though the Federalist Society couldn’t have been as effective without the assistance of the senator, McConnell also could not have been nearly as successful had Epstein and others not fostered and encouraged such a profoundly intellectual movement. From that vantage point, Fed Soc is indeed a conspiracy — a conspiracy of strong thinkers who, in the words of Justice Kavanaugh, should be not afraid.