The Federalist Society

It's not the membership. It's the ideological agenda

August 7, 2005

Perhaps the largest obstacle to an informed debate over judicial nominations is the primitive typology of conservative and liberal. Republicans accuse the entire judiciary of being "liberal" -- and thus somehow in the pocket of Democrats -- even though the vast majority of federal judges at all levels were appointed by Republican presidents. Even Sandra Day O'Conner, a former Republican politician who was appointed to the high court by Ronald Reagan, and who has been a staunch proponent of the new "state's rights" regime, is often described by the right wing as being a "liberal" judge.

In truth, the labels we use to describe politicians don't carry over well to constitutional interpretation. Judges have a completely different role to play than legislators -- they don't decide the best policy, but instead how statutes are to be read and what is or is not consonant with our founding document. And it is here that a small group of "conservative" legal theorists have emerged as radicals, whose theories would, if taken seriously, completely undermine both the basis for many of our fundamental rights and many of the powers of Congress to carry out democratic will. What would be left -- a makeshift framework of burdensome social laws and impotent economic "interference" -- just happens to coincide with the current mode of conservative political thinking.

While a few jurists such as Robert Bork and William Rehnquist preceded them, it was the Reagan generation that created the "movement" of using the judiciary to advance this radical new way of contracting and expanding government powers. The Federalist Society, a law and policy club created in 1982 to build on the Reagan revolution, represented and still represents the vanguard of this movement. As Molly Ivins put it, it's "the ur-alpha-primo ultraconservative legal group in the whole country." Or as the Washington Post described it, more delicately: "In conservative circles, membership in or association with the society has become a badge of ideological and political reliability."

We now know that John Roberts, Bush's nominee to the Supreme Court, was one of these young, cocksure thinkers -- a member of what fellow Reagan lawyer Bruce Fein called "a band of ideological brothers." It would come as little surprise if we were to learn he was involved with the Federalist Society in the 1980s; after all, most of Reagan's legal staff was. Steve Calabresi, one of the founders of the Federalist Society, boasted that "more than half of the 153 Reagan-appointed Justice Department employees and all 12 assistant attorney generals are members or have spoken at Federalist Society events."

If Roberts were an active member of the Society in more recent years, as was widely claimed when he was nominated, it would not be a crime. But it would certainly tell us something about what kind of judge he would be, given the radical ideological agenda of the group, and it would belie the suggestion that he has moderated in his years of experience into a pragmatic and professional legal thinker. At the very least, attention to such a fact would serve to shine light on an obscure but extraordinarily influential branch of judicial philosophy, and perhaps give this and coming Supreme Court debates the proper context.

But Roberts denied recalling ever being a member, and the White House demanded that newspapers issue corrections. Then, comically, he was discovered in the Society's 1997-98 leadership directory. Reporters love the smell of blood, and this pathetic attempt to hide Roberts' high-level involvement with the group has thrust it into the limelight.

The New York Times wrote:

But much of the influence, and most of the intrigue, flows from an informal social network, which members use to advance one another's causes and careers. Openly and behind the scenes, members have played prominent roles in the most pitched political battles in recent years, including the impeachment of President Bill Clinton and the Florida recount fracas in 2000 that led to the election of Mr. Bush.

The society takes few official positions. But to some liberal critics, the activism of its members conjures all they fear about the legal right, from the defense of states' rights and business interests to attacks on affirmative action, gay rights and abortion. ...

Leaders of the group cry foul. Steven G. Calabresi, a law professor at Northwestern University who helped found the group as a law student at Yale and is now chairman of its board, evoked the question Senator Joseph McCarthy used a half-century ago in hunting Communists: "There's been an element of 'Are you now or have you ever been a member of the Federalist Society?' " "It's worse than McCarthyism, because at least McCarthy was going after people who advocated a total dictatorship," he said. "We don't even hold a unified set of views." Although the group endorses a few broad principles like the separation of powers and a faithful adherence to Constitutional text, Mr. Calabresi said there was much disagreement on particulars. "The Federalist Society is a debate club," he said. ...

In the early days of the Bush presidency, administration officials said about a quarter of their judicial nominees were recommended by the Washington headquarters of the society. Mr. Meyer said the advice came from staff members speaking in their private capacities, not as official representatives.

With an annual budget of $5.5 million, the society has benefited from decades of support from prominent conservative organizations, including the John M. Olin, Sarah Scaife, and Lynde and Harry Bradley Foundations.

In the 1990's, three Federalist Society lawyers, Jerome M. Marcus, Richard W. Porter and George T. Conway, played important but covert roles in helping Paula Corbin Jones sue President Clinton for sexual harassment. They also worked behind the scenes to disclose Mr. Clinton's affair with a White House intern, Monica Lewinsky. ...

According to the Senate Judiciary Committee, 15 of the 41 appeals court judges confirmed under Mr. Bush have identified themselves as members of the group. Complaining that the society serves as "the secret handshake" of Mr. Bush's judicial nominees, Senator Richard J. Durbin, an Illinois Democrat on the committee, has repeatedly questioned them about the group's mission statement. Their answers, he said, have "ranged from the amusing to the preposterous." ...

"It becomes something of a secret society," [Judge Guido Calabresi, uncle of Society founder Steven] said. "The conversation becomes a conversation among people who already know what they're going to say."

(See the sidebar for Sen. Durbin's amusing speech.)

The Washington Post is a bit more coy, as usual, pointing out,

For all its influence, Federalist Society supporters -- who include a handful of liberals -- point out that the organization does not litigate cases or lobby the government, even as it has been closely identified with conservative politics. Nor does it explicitly support a particular policy agenda beyond its ideas for limiting the power of government and emphasizing that the courts should "say what the law is, not what it should be."

You can also read descriptions by Jerry Landay, from the March, 2000 Washington Monthly, on the Federalist Society's role in Clinton's impeachment, and by the Community Rights Counsel, about the rapid creation of a "Taking Project" movement in the 1980s to judicially ban environmental and other government regulations.

All this attention is making many conservatives uncomfortable. R. Emmett Tyrrell, Jr., the editor of the American Spectator, claims that although he is a member, "I have not had to learn any secret handshake or attend late night meetings in any sacred groves."

Any dissent from the liberal orthodoxy is greeted with indignation. The dissenter's motives are always called into question. In the Federalist Society there is a serious regard for the law and how a law might square with the Constitution. There is a sense that judicial restraint must be practiced. If the law does not conflict with the Constitution it is not a judge's role to change the law. This, the liberal calls judicial activism, but of course it is not activism. It is restraint. ...

Much of the criticism of the Federalist Society issues from what historians since the 1950s have recognized as "the paranoid style" of politics, seeing opponents as conspirators not simply opponents. One so-called liberal group, the Institute for Democracy Studies, has claimed that the Federalist Society is part of "the infrastructure underlying the right-wing assault on the democratic foundations of our legal system." Yet there is no "infrastructure" and there is no assault on democratic foundations. At the Federalist Society there is mainly an ongoing debate on the law and the role of courts. All members of the Society believe that the courts being the least democratic of our branches of government must not gain preponderate influence over the elected branches, the presidency and the legislature.

If any people in the debate are anti-democratic it is those who denounce opponents as conspirators and advocate a judiciary superior to elected officials. Thankfully they are in the minority and they will remain in the minority so long as they propound unintelligent ideas.

-- R. Emmett Tyrrell, Jr., "No secret handshakes," American Spectator, 7/28/05

Meanwhile, David Horowitz, the consummate modern McCarthyite, champions this persecution theme:

The front page of the New York Times today features a story by Jason De Parle about the Federalist Society's mysterious "sway" in the legal community and what this might portend for the Supreme Court if Judge Roberts is confirmed. The report is inspired by the left's attempt to demonize the Federalist Society and stigmatize Judge Roberts as unAmerican or -- in the actual parlance of the left -- anti-woman, anti-black and anti-poor, i.e., a member of the party of Satan.

The White House has already caved to this malicious McCarthyite attack on the Federalist Society by attempting to distance its nominee Judge Roberts from membership. Are you now or have you ever been... Once you have reached the stage of attempting to avoid the guilt by association that the left's lynch mob is attempting to establish, you are half-way to the stake. ...

The Federalist Society is no more conservative than the American Bar Association is left. Or to put it accurately, the Federalist Society is somewhat less conservative than the American Bar Association is left. And it is far less activist. The Federalist Society is principally an intellectual forum where conservatives can discuss with liberals issues that they couldn't discuss in law school venues because the totalitarian intolerance of leftwing law professors who control these schools effectively silenced them by excluding them from its platforms. The fact that the Federalist Society is an issue at all is a testament to how the witch-hunt is the essence of leftwing politics, and how successful that politics is.

-- David Horowitz, "Left-wing witch hunt of the Federalist Society and John Roberts," NewsMax, 8/2/05

Society cofounder Steven Calabresi sounded out the same line in the Times article:

"There's been an element of 'Are you now or have you ever been a member of the Federalist Society?' "

"It's worse than McCarthyism, because at least McCarthy was going after people who advocated a total dictatorship," he said. "We don't even hold a unified set of views."

Despite his curious historical perspective on McCarthy, perhaps Calabresi is on to something. The question isn't about whether or not Roberts is a "member" of the dreaded "Federalist Society" -- although the patent absurdity of him "not recollecting" kind of hurts his reputation as an honest Midwesterner. He apparently was a leader in the group, and he shouldn't be ashamed of that. It doesn't disqualify him of anything, or even mean anything in and of itself.

The question to Roberts is what agenda does he sign on to? Despite its enormous impact, there is very little public knowledge about the Society. It claims that liberals are running everything, etc. (talk about the "paranoid style") but beyond that, all we have are empty phrases like "judicial restraint," "strict constructionist," etc. -- the same terms used to describe John Roberts.

Like the typology of "liberal" and "conservative" judges, these should be tossed out. What about fundamental rights in the Constitution, from voting to speech to privacy, that Americans expect to be there for them when they need them? What about fundamental government powers to democratically decide to regulate business, protect the environment, enact social security? Under the regime of movement ideology espoused by the Federalist Society's leadership -- and perhaps by Roberts in his "band of ideological brothers" days -- are these basic assumptions undergirding our daily life to be swept away?

That's the question.