July 26, 2005,
EDITOR'S NOTE: This piece appeared in the April 30, 2001, issue of National Review.
Ce forewarned: Democrats hope to turn "Federalist Society" into two of the dirtiest words in American politics. They will use this phrase to distort the records of judicial nominees, in a concerted effort to derail their nominations.
They've been getting some practice at the state level. In a bitter battle for control of Michigan's highest court last fall, Democrats targeted three incumbent Republican judges for defeat. Prominent in the Democratic campaign was the charge that the judges' affiliation with the Federalist Society for Law and Public Policy Studies, a powerful "cabal" of conservative lawyers, made them unfit for the bench. One of the combatants, columnist Trevor Coleman of the Detroit Free Press, warned last month that the Federalist Society's influence reaches well beyond Michigan: "After eight years of being the proverbial barbarians at the gate during the Clinton administration, the Federalist Society has finally broken through and taken control of the village."
According to a Baltimore Sun editorial, the federal bench is the most recent victim of the Federalist Society's influence. In reaction to the prospect that Peter Keisler, a prominent Washington lawyer and former clerk to Judge Robert Bork and Justice Anthony Kennedy, might be nominated to the Fourth Circuit Court of Appeals, the Sun fingered him as a "stalwart" of that "increasingly influential organization of extremely conservative lawyers." Keisler, who has served on the Society's board of directors, would no doubt plead guilty to the editorial's charge that the organization hopes "to reshape . . . liberal, big government orthodoxy"; but the editorial also faults him on the grounds that his nomination would be "an affront to local Republican leaders" because he would enjoy "the biggest plum available" to the state GOP, even though he has not been engaged in party activities. A judicial nominee's membership in the Federalist Society so threatens the established order that a liberal newspaper is driven to defending Republican patronage on the federal bench.
The handful of law students who launched the Federalist Society 20 years ago didn't set out to drive liberal elites nuts; they wanted simply to provide a forum for conservative views on the constitutional order. Future Indiana congressman David McIntosh, future Northwestern law professor Steven Calabresi, and future Energy Department general counsel Lee Liberman Otis met as undergraduates at Yale, where they organized debates featuring conservative voices.
McIntosh and Otis went on to the University of Chicago Law School. In the spring of 1982, they joined with Calabresi, then at Yale Law School, and Spencer Abraham, a Harvard Law graduate who had started a conservative legal journal there, to sponsor the first Federalist Society conference at Yale. (Abraham, of course, is now energy secretary.) McIntosh explains: "We realized that there was a presumption in law school that the New Deal liberal view was the only view." Other law students clearly shared the frustration of this small group, and were interested in doing something about it. After the well-attended inaugural conference, about a dozen law students contacted them, seeking to establish chapters at their own schools. The founders then put together a twelve-page how-to pamphlet, and a year later hired the Society's first full-time employee, Eugene Meyer.
Meyer, a Yale conservative and son of late National Review editor Frank Meyer, is still executive director of the organization which now has 25,000 members and a yearly budget of $3 million.
The Federalist Society describes itself as a group of conservatives and libertarians dedicated to the principles that "the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be." It encourages a conservative intellectual network that hosts hundreds of events, which are open to the public and generally include debates on legal topics. These forums have included presentations by scores of liberals, including Justices Stephen Breyer and Ruth Bader Ginsburg, Michael Dukakis, Barney Frank, and Patricia Ireland.
Nadine Strossen, president of the ACLU, has spoken at Federalist Society forums "regularly and constantly" since its founding, and praises both its fundamental principle of individual liberty and its high profile on law-school campuses. Strossen recently visited the University of Minnesota to address a Federalist Society chapter, which conflicted with an invitation from New York University's chapter for the same day. She sees the law-school chapters as the "best organized, most heard, and most influential groups at law schools." She also praises the group's intellectual diversity, noting that there is frequently strenuous disagreement among members about the role of the courts. She explains that she typically can't draw any firm conclusion about a potential judicial nominee's views based on the fact that he is a Federalist Society member, but she suspects that "the Federalist Society, plus Ashcroft, plus Bush, won't put the libertarian wing in ascendance."
Many critics of the Federalist Society are far less nuanced. The Washington Monthly last year ran an article entitled "The Conservative Cabal That's Transforming American Law," which cited a 1999 decision by a panel of the D.C. Circuit Court of Appeals as "the network's most far-reaching victory in recent years." The court had rolled back some of the EPA's clean-air standards on the grounds that it is constitutionally impermissible for Congress to delegate legislative authority to the executive branch. Former Bush White House counsel (and member of the Federalist Society's Board of Visitors) C. Boyden Gray filed an amicus brief making the winning argument.
The Washington Monthly declared that the court's decision "served private industry at the expense of the public interest." Surely this is a clear instance of a conservative conspiracy to subvert the law? Not quite. The case was overturned on appeal, in a decision written by Justice Antonin Scalia, a frequent lecturer at Federalist Society events who helped get the organization off the ground when he was a professor at Chicago. The Washington Monthly piece also attacked Boyden Gray as a proxy for the Federalist Society, for advancing Microsoft's effort to weaken antitrust enforcement. Of course, Gray serves on the Society's Board of Visitors with Robert Bork, who has been Microsoft's chief intellectual adversary.
Another recent critique of the Federalist Society didn't bother with any specific charge, blaming it instead for "successfully shaping the direction of the challenge to a democratic jurisprudence." In a January 2001 briefing paper, a liberal outfit called the Institute for Democracy Studies detailed the Society's organizational structure and funding sources, and listed the job histories and affiliations of its leading figures-using the guilt-by-association model of a dusty, paranoid Soviet tract. Essentially, the paper suggests there is cause for alarm because Federalist Society members have worked in the Reagan and Bush administrations, have clerked for some of the same federal judges, and generally are familiar with one another.
Those, however, who are most familiar with how the Federalist Society operates give it high marks for encouraging intellectual debate. John Sexton, dean of New York University law school, praises the Society "for its extraordinary commitment to the contest of ideas," and Robert W. Bennett, former dean of Northwestern's law school, admires its "academic integrity."
Throughout the Clinton years, the Left was keeping a wary eye on Federalist Society members active in public policy. "In some ways, they are the Justice Department in exile," Elliot Mincberg, legal director of People for the American Way, explained in 1997. Now, in the early days of the Bush administration, it is clear that the exile is over. The New York Times has reported about the "cadre of young lawyers who have a strong ideological commitment to conservative jurisprudence" who have moved into the White House counsel's office. (See Ramesh Ponnuru's "Speedy Gonzales," page 19.)
During a recent confirmation hearing, two top Justice Department nominees were questioned about their affiliations with the Federalist Society. Sen. Patrick Leahy raised the issue with Larry Thompson, who is slated to be deputy attorney general; Sen. Edward Kennedy questioned solicitor general-designate Ted Olson about his past criticism of the ABA as a "self-serving interest group" that shouldn't be involved in vetting federal judges. Olson, a Federalist Society veteran, contrasted the ABA with the Society, which, he pointed out, "does not lobby . . . it does not pass resolutions, it does not file litigation, it does not file amicus briefs . . . One of the things the Federalist Society does is try to bring people together [who] have strong views and put them out for public evaluation."
Democratic senators will no doubt reserve most of their fire for Federalist Society members who are nominated to lifetime judicial posts. In a speech on the Senate floor last fall, Illinois senator Richard Durbin labeled the Society "far right," with members who "want to turn back the hands of the clock." This assessment followed his discourse on the Dred Scott decision, and thus resembled the scare campaign Michigan voters were treated to about the sinister Federalist Society, and the three judges in its pocket. The judges were all comfortably reelected to the state supreme court but will U.S. senators be as rational as Michigan voters?