By Anna Schneider-Mayerson

October 16, 2005 | 8:00 p.m

A bright yellow Lamborghini—the prize in a raffle to benefit the Columbus Citizens Foundation—illuminated the stage of the Waldorf-Astoria Grand Ballroom on Saturday night; in an ode to one of the night’s honorees, Associate Justice Antonin Scalia, an imitation façade of the U.S. Supreme Court Building had been erected there, too. Or was it the Pantheon?

The gala was a fund-raiser for the organizers of the Columbus Day Parade, at which Justice Scalia would the next day be grand marshal. The attendees included diamond-draped “Money Honey” Maria Bartiromo, Saturday Night Live alumnus Joe Piscopo and Justice Scalia, the 69-year-old scourge of liberals and poet laureate of the jurisprudential right wing. Breaking bread at the Scalia table that night was Leonard Leo, executive vice president of the conservative Federalist Society. He has taken a leave in order to help promote the Bush administration’s Supreme Court confirmation effort. The two knew each other well. Justice Scalia helped get the Federalists off the ground as a law professor at the University of Chicago, though that was years before Mr. Leo took his position. Nino and Leo; the Lamborghini and the vegetable mille-feuille; the son of Italy and the bow-tied pointy-head—it all made sense. But a future Supreme was top of mind that night, and several celebrants were overheard griping about President Bush’s nominee—“ that woman” grumbled one, amusingly evoking the lady troubles of another President. Earlier, at a press briefing—La Dolce Bartiromo, star-struck, snapped some pics of the event on her digital camera before tucking it back into her quilted leather handbag—the bearish Justice Scalia brushed aside a question about Harriet Miers: “Never having met her, I have no impression of her,” he quipped. It was meant to deflect, but could have been read as a telling swipe. Ms. Miers had left little impression on Washington’s right-wing power establishment in general before she was swept into the headlines as the President’s latest nominee to the Supreme Court, to fill the seat that will be vacated by Sandra Day O’Connor. That includes many Federalists (Mr. Leo being a notable exception), whose members have campaigned over the past 20 years to shrink what they see as a yeasty, activist judiciary—the first and most essential step in shifting the balance of legal thinking and interpretation in this country to the right. To them, Ms. Miers is a missed opportunity. The Federalists have sunk millions of dollars and untold amounts of intellectual capital into spreading ideas of limited government and the notion—now fully integrated into the political discourse—that there was a way to read the Constitution as an “originalist,” or as the founders intended it to be read, and that some judges “legislated from the bench” while others simply ruled neutrally. To do that work, they needed advocates, the smartest advocates in the room. They cultivated an exquisite garden of conservative judges, academics and lawyers—blooms to be clipped when the time was right. When, rather suddenly, two seats on the Supreme Court fell vacant, it seemed like time to start gathering the rosebuds. But in place of a Federalist loyalist, an intellectual “best in show,” came Harriet Miers: at worst a crony, an underqualified “Brownie” type; at best a loyal, effective legal operative. But certainly not a guild member of the rightist punditocracy. The brainiacs of the right wing had been officially blown off. “This woman comes from nowhere and has never been educated,” fumed Richard Epstein, a flame-throwing libertarian professor of law at the University of Chicago and a regular on the Federalist circuit. And so recently the “infrastructure,” as he called it, was in working order: “The infrastructure held fine with John Roberts; it wasn’t that he was an active Federalist Society member, but you understood from whence he had come and where he had been educated.” Wonky Skull and Bones The Federalist Society began as an elite venture. The first branches were started on the Yale and University of Chicago Law School campuses in 1982, with the society’s goals ranging from the collegial (the formation of a conservative and libertarian community on campus) to the ambitions (reversing a postwar tide of liberal judicial rulings). To many Federalist Society members, no ruling had embodied this overreaching more than Roe v. Wade, the 1973 Supreme Court ruling that found that criminalizing abortion violated a right to privacy protected by the Constitution. What developed in the ensuing years was a somewhat loose coalition that met under the Federalist tent. There are the “originalists” (sometimes grouped in with “textualists” or “strict constructionists”), who believe the only way to have a neutral ruling is to step into the mindset of the framers and ratifiers of the U.S. Constitution. The other main camp consists of libertarians, who are guided instead by a principle that most government intervention violates fundamental rights. But the center held well enough to attract attention from a range of conservative benefactors. With money from John M. Olin and the Lynde and Harry Bradley foundations, the society was able to expand from merely serving law students—by arranging forums and conferences—to shaping the ideological makeup of the faculty in the law schools and in related fields. Funding speaker series and professorships, according to a 2000 profile of the Federalists in the Washington Monthly magazine, got the ball rolling. “That’s like building a wine collection,” the then president of the Bradley Foundation, Michael Joyce, told the National Journal in 1993. The society earned a reputation—perhaps unfairly—as a wonkish Skull and Bones. In his book Closed Chambers, Edward Lazarus, a clerk for Justice Harry Blackmun, recalled that a group of 10 Federalist Supreme Court clerks in 1988 called themselves “the cabal.” Outside the ivory tower, Reaganites embraced the Federalists and their ideas, giving them jobs in the White House or the Department of Justice. Also in that era, conservative and lower-court judges and scholars—including Robert Bork, Richard Posner and Justice Scalia—were ushered onto seats on the federal bench. The society now also has a lawyers’ division, a conservative brain trust of practitioners who can litigate conservative cases pro bono. Federalist Society lawyers funded by Richard Mellon Scaife represented Clinton archenemy Paula Jones. In the fiscal year that ended in September, the Federalist Society had an approximately $5.5 million budget and about 35,000 members across the nation, outposts at about 180 law schools, and judges all up and down the bench. “That’s part of the disappointment,” said one source long involved with the society. “It’s not the be-all and end-all: These judges, after all, are now on the bench; they’re issuing the kinds of rulings that people like to see, and they’re going to influence the judiciary for a long time to come. It is a mild disappointment that more than one of them didn’t get elevated.” “Because the Supreme Court exercises such power in our system, and a lot of groups are organized around decisions of the court, it’s become like picking a Supreme Court justice is almost like a Presidential election,” said James Piereson, the president of the John M. Olin Foundation, which is shutting down this year after having funded the Federalists for about two decades. “The betrayal is that he’s not listening to them,” explained Mark Tushnet, a constitutional-law professor at Georgetown and author of a book on the Rehnquist court, A Court Divided. “The component of the government that had been allocated to them as a part of political coalition is not now the source of the big victory, the Supreme Court nomination.” Others think the alarm is overstated. “The worst you can say is that in some ways, it’s something of a setback, but it’s probably really easy to overread,” said one source involved with conservative legal efforts. Still, the source added: “It clearly doesn’t send the right message to the thousands of people who have been involved in this for the last 20 years. That is somewhat true regardless of how she ends up.” “I think that there were a couple of different objectives: moving the court, moving the culture,” said a conservative involved in the judicial-confirmation process. “If I were presented with a nominee that didn’t do any of these things, that would be a serious problem for me. When I’m presented with a nominee who just provides half a loaf, I’m not overjoyed; I’m disappointed. But we’re adding some value.” Indeed, the battle of ideas is the point. Several Federalists, speaking on the condition of anonymity—either because they didn’t want to upset the administration, or because they didn’t want to antagonize a potential Supreme Court justice in front of whom they might one day argue—said it was about more than a vote, or moving the court to the right; it was about changing the culture itself. Steven Calabresi, a professor at Northwestern University Law School and founder of the Federalist Society, went further: “For me, at least, the point of the society was to change the culture and to win the battle of ideas; and to me that goal is accomplished if a moderate who believes in originalism and has no ties to the society is appointed to the court.” But most others argue that the President’s brush-off isn’t merely symbolic, but portentous. “There is not a meeting of the minds here about what the contract means,” said one conservative involved in the judicial-nominations process. “The President thinks he fulfilled his bargain because he’s firmly convinced she is a judicial conservative. The response is: ‘Yes, Mr. President, but you also promised someone who was going to expand the battle and add value in terms of our broader legal culture.’” The Federalists wanted a controversial, conservative appointment to serve as the opening shot in a broader cultural battle, one they feel well girded for after all these decades of work. But the President, it seems, has lost heart for that battle. “People want this debate. They also want someone who is going to approach the law the way they want it approached—but they wanted the debate. They want the debate because they want the confirmation to lock in the debate as a political matter,” said that Federalist Society source. Permanent Record “Debate” is such a buzzword with the Federalists that they can often be heard likening themselves to a debating society. But the society doesn’t lobby on public policy or take positions on nominations, said Eugene Meyer, the society’s president, and so it “doesn’t have a position on the Harriet Miers nomination.” This is why Mr. Leo said he took an unpaid leave from the Federalists at the end of July, after Justice Roberts had been nominated. Unlike other Federalists, Mr. Leo chose to help the White House, working pro bono since the end of July in support of the President’s nominees. “I don’t think anybody ascribes my activity as demonstrating Federalist Society support for the President’s two nominees,” he said. Certainly, neither nominee has rushed to proclaim his or her allegiance to the society, perhaps because at least among liberals, the group is viewed conspiratorially. That might explain why Justice Roberts claimed that he hadn’t been a member, though The Washington Post was leaked a document from 1997-98 listing him as a member of a steering committee. Ms. Miers’ involvement with the society seems to have been even more minimal than Judge Roberts’. Without giving much context for her statement, Knight Ridder News Service reported on Oct. 7 that when she testified as a member of the Dallas City Council in a voting-rights lawsuit in 1990, Ms. Miers said she “wouldn’t belong to the Federalist Society” or other “politically charged” organizations, because they “seem to color your view one way or the other.” According to the source involved with conservative legal efforts, in the spring, soon after she was appointed White House counsel, Ms. Miers gave a speech to the Washington, D.C., chapter of the society. “It was not a memorable speech, as I recall,” the source sniffed. But then, not having met her, what impression could she have left? At least the impression of a judicial philosophy. In this debate, “having a record” is code for having a judicial philosophy. The Federalists, not hell-bent on elevating a full-fledged member to the court, at least wanted a sophisticated nominee with a series of sympathetic positions who would be questioned on those positions and thus air them to the public. The nominee’s record would be a way of making their case to the culture at large. To that end, the Federalists were hoping for a nominee like Judge Michael Luttig of the United States Court of Appeals for the Fourth Circuit; or Judge Samuel Alito Jr. of the Third Circuit; or Judges Priscilla Owen and Edith Jones of the Fifth Circuit; or Judge Janice Rogers Brown of the D.C. Circuit. “That would have been the best way to get the debate, to have someone whose record spoke for itself. And you wouldn’t have to worry about trying to shape the media. The media would’ve just coalesced around the person’s record: judicial philosophy, rulings,” said the source familiar with the Federalists’ efforts. The vote on this nominee would have been a referendum not just on the proper role of the courts in society, but on which political party, in the years of changing legislative dynamics to come, could get its agenda accomplished in the courts. Conservatives say they felt that the Roberts hearings did little to build up that kind of grand ideological partisan face-off à la Bork, so his confirmation has left them short of a satisfying victory. But it’s the internal defeat, the defeat inside the right wing, that stings the most. The President—seen at times by neoconservatives as anti-intellectual anyway—has blasted the punditocracy for intellectual elitism in its reaction to the Miers pick. The Republican base is with the President. The President, who has always balanced a certain Republican brand of populism against the “Great Ideas”–makers in the neoconservative academic establishment, appears to have charted a less complicated course. “There’s no connoisseurship on his part,” sniped Mr. Epstein.