The Federalist Society is an ultra-conservative right-wing political organization. They are very successful at getting judges appointed to the Supreme Court whose decisions on key issues will be an almost forgone conclusion. It was responsible for getting at least seven activist conservative justices confirmed to the Supreme Court: Antonin Scalia, Anthony Kennedy, Clarence Thomas, John Roberts, Samuel Alito, Neil Gorsuch and, finally, Brett Kavanaugh. Five of those justices remain on the court today, and for the foreseeable future their decisions will determine what kind of society we live in much more than who wins elections.
Still, to turn it around, we have to go to the polls.
The Federalist Society claims it was founded on what Alexander Hamilton wrote in Federalist Paper Number 78, that the judiciary must exercise restraint to ensure a justice does not “substitute their own pleasure to the constitutional intentions of the legislature.” Despite what Hamilton wrote, the Federalist Society wants, and gets, justices who will “substitute their own pleasure” — i.e., their personal political and religious views — for a neutral, legal interpretation of the U.S. Constitution.
An example of an activist court was illustrated in the 2012 Supreme Court decision in Western Tradition Partnership v. Bullock. The state of Montana wanted to uphold the state’s constitution that was amended in 1912 specifically to keep big money and corruption out of politics. The court ruled that the Citizens United decision superseded that state’s constitutional right to regulate campaign financing.
Conversely the Court is unlikely to reverse Roe v. Wade but, with Gorsuch and Kavanaugh on the bench, it is very likely to argue that states have the right to regulate access to abortion. It seems the Federalist Society supports state’s rights only when it suits their agenda.
How can the Federalist Society be so successful in getting who they want on the Supreme Court — in determining what kind of society we will have? The answer is they rely on liberals to fall in love with a presidential candidate so much that if their favorite candidate is not on the ballot they refuse to vote for the liberal candidate who is. They also rely on conservatives to fall in line and come out in droves to vote for the conservative candidate, even if they loathe that person.
A prime example of this was the 2016 election, when the progressive candidate — Bernie Sanders — was not on the ballot. Enough liberal voters could not bring themselves to vote for Hillary Clinton because they hated her, thus helping to elect Donald Trump.
The 2016 election was the time to protest the nomination and confirmation of both Gorsuch and Kavanagh. Protesting after they were nominated would accomplish nothing. The conservatives knew this and stood behind their party’s candidate. The liberals lost sight of the fact that presidents nominate Supreme Court justices, apparently preferring to argue amongst themselves. In the end the liberals accomplished nothing except to follow the Federalist Society’s playbook.
Now the midterm elections are upon us. Are liberals across the country and in Maine going to learn from their past mistakes and get behind the party candidate? Are they going to start the long process of taking our country back from the Federalist Society?
The Maine gubernatorial election has two major-party candidates, and loving or hating them doesn’t matter. Wishing your favorite candidate was on the ballot doesn’t matter either. The only thing that does matter is voting for the party candidate who best supports your values.
I predict that the party that falls in line, the party that speaks with a unified voice, will get their candidate elected and the party that splits their vote won’t. Just as the five conservative activist justices on the Supreme Court will determine what kind of laws the nation has and what kind of society we will have, who our next governor is will determine the same for Maine.
We lost the battles of 2016, with Trump, Gorsuch and Kavanaugh, but we haven’t lost the war. Electing Janet Mills, the Democratic nominee, will be the first step to making Maine and the nation great again, now and in 2020.
Tom Waddell is president of the Maine Chapter of the Freedom from Religion Foundation. He can be reached at: president@ffrfmaine.org
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