"No experiment can be more interesting than that we are now trying, and which we trust will end in establishing the fact, that man may be governed by reason and truth. Our first object should therefore be, to leave open to him all the avenues to truth. The most effectual hitherto found, is the freedom of the press. It is, therefore, the first shut up by those who fear the investigation of their actions." --Thomas Jefferson to John Tyler, 1804.

Two at the Federalist Society

Richard Sanders

Richard Sanders

You may recall the news brief from last week about Attorney General Michael B. Mukasey, who while delivering a speech in Washington collapsed – lost consciousness – and was rushed to a hospital. Reports indicate he has fully recovered since. Which would not occasion a post here, except for an incident that preceded the collapse, and where the speech was delivered.

The speech was delivered on the one-year anniversary of the department of Mukasey’s predecessor, Alberto Gonzales, and was a strongly-worded endorsement of the Bush Administration’s expansion of assumed powers in areas of habeas corpus, torture, eavesdropping and others: “I am afraid what we hear is a chorus with a rather more dissonant refrain. Instead of appreciation, or even a fair appraisal, of the Administration’s accomplishments, we have heard relentless criticism of the very policies that have helped keep us safe.”

The New York Times reported that “There was no immediate indication of the cause of his collapse” toward the end of the address, but some in the audience pointed to one – a verbal riposte from someone in the audience, about 15 minutes before the collapse. Several witnesses said that a person at one of the tables exclaimed, “Tyrant! You are a tyrant!”

That person – though he maintains that he exclaimed only the word “tyrant!,” then left – turned out to be a judge: Washington State Supreme Court Justice Richard Sanders. Sanders today acknowledged his commentary, and released a memo on it. An excerpt:

Mr. Mukasey said those who criticize the Administration for abandoning provisions of the Geneva Conventions fail to recognize that “… Al Qaeda [is] an international terrorist group, and not, the last time I checked, a signatory to the Conventions.” Although the United States is a signatory, and these Conventions prohibit torture, the audience laughed. Attorney General Mukasey received a standing ovation. I passionately disagree with these views: the government must never set aside the Constitution; domestic and international law forbids torture; and access to the writ of habeas corpus should not be denied.

The program provided no opportunity for questions or response, and I felt compelled to speak out. I stood up, and said, “tyrant,” and then left the meeting. No one else said anything. I believe we must speak our conscience in moments that demand it, even if we are but one voice.

The group to which Mukasey was speaking, and from which Sanders excused himself, was the Federalist Society, as Sanders said, “a conservative and libertarian legal group of which I am a member.” It is also more, a very powerful interest group which has had great sway over the selection of federal judicial appointees; prominent members have included Antonin Scalia, John Roberts, Jr. and Samuel Alito, who you might recall are now on the U.S. Supreme Court. Its members have often, widely, been big supporters of the Bush Administration and its expansive approaches.

It was a hotter group in times of Republican hegemony. On Friday, the Washington Post led an article on the group this way: “Last year, there was a candlelight dinner at sold-out, shut-down Union Station to celebrate the 25th anniversary of the Federalist Society, with President Bush on stage and three Supreme Court justices in the audience. This year, it’s ‘welcome to the wilderness,’ as a former Clinton administration appointee good-naturedly told the group of lawyers yesterday at its annual meeting.”

But Sanders’ reaction at the dinner could presage something more: Some emerging differences of opinion about what a conservative interpretation of the law ought to be. Ad that might be a thought enough to make more than a few Bush Administration supporters among the Federalist society more than a little woozy.

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