The so-called "First Step Act" offers some worthy reforms, but nothing that would satisfy progressive fantasies.
Much has been written about the rise of judges who were nurtured in the Federalist Society. They are likely to continue a revolution of formalism in both statutory and constitutional interpretation. But almost nothing has been said about the rise of U.S. Senators who also grew up with the Federalist Society. With the election of Josh Hawley from Missouri, there are now four such senators, including Ted Cruz of Texas, Mike Lee of Utah, and Tom Cotton of Arkansas.
The Federalist Society Senate Caucus, as it were, is also an important development. It brings a kind of intellectual firepower to the Senate that Republicans have rarely had. John Stuart Mill called the Tories the “stupid party,” and their American counterpart rarely in the twentieth century possessed the kind of intellectual heft that the Democrats had in the form of such senators as Daniel Patrick Moynihan and Paul Douglas. But some of these new senators, although quite young, may yet rival these giants in intellectual vigor and achievement. For instance, Josh Hawley wrote a book on Teddy Roosevelt even before going to law school and Yale Professor Paul Kennedy called him the best student he ever had. Ted Cruz brilliantly argued many cases before the Supreme Court.
Greater intellectual acumen can make a difference. This has already been obvious on the Senate Judiciary Committee where Mike Lee and Ted Cruz are the most effective questioners, defending originalism better than many nominees. And the speeches of these Senators on constitutional interpretation remind us that defending the Constitution is not only the province of the judiciary, but of every department of government. It is essential to have articulate originalists in Congress if we are to have pressure for restoring a more originalist Constitution.
But just as the Federalist Society today is not simply focused on jurisprudence, so these senators’ intellectual contributions are not likely to be limited to legal interpretation. These senators combine both conservative principles with the acumen to realize these general principles in legislation. And they are likely to hire very capable staff, many of whom will have themselves grown up in the Federalist Society. When I worked in government, I frankly thought that on average the legislative staff on the Democratic side was much more intellectually impressive than on the Republican. Changing that balance will likely affect the give and take of legislation at least at the margin.
To be sure, it is not yet fully clear how important the Federalist Society Senate Caucus will be. Individual judges can have great influence by the force of the intellectual panache of their opinions. I fully expect that some of the recent nominees of President Trump will become the most cited in their generation, as Richard Posner, Frank Easterbrook and J. Harvie Wilkinson were in theirs. But legislative politics is a more a team sport than the judiciary. And here the personality and collegiality may make a larger difference than on the bench. Nevertheless the elections of these Senators provides yet more evidence that the Federalist Society is the most consequential civic organization that has arisen in the last four decades. It has created an intellectual counter-establishment that can change the social and political world.