TCS Daily


A Federalist Offense

By Pejman Yousefzadeh - October 6, 2005 12:00 AM

President Bush has nominated White House Counsel Harriet Miers to replace Justice Sandra Day O'Connor on the Supreme Court. The nomination has provoked a lot of concern on the right side of the ideological divide. And despite the fact that democratic Senators like Minority Leader Harry Reid appear to like Ms. Miers, it would come as no surprise to see opponents of Miers use a favorite variant of the "Vast Right Wing Conspiracy" theory that is commonly used to put conservatives and right-of-center libertarians on the defensive.

The conspiracy theory revolves around the right-of-center Federalist Society for Law and Public Policy and it could very well be trotted out in the upcoming debate over Ms. Miers, especially given that Leonard Leo, Executive Vice President of the Federalist Society, endorsed Ms. Miers's nomination to the Supreme Court (I have found nothing to suggest that Ms. Miers is herself a member of the Federalist Society).

Readers who followed the confirmation hearings for Chief Justice Roberts will remember that early on in the process, there was a highly overwrought brouhaha over whether the Chief Justice was or ever had been a member of the Federalist Society. Of course, this was not the first time that excess attention was paid to the professional memberships and associations of a judicial candidate. And to some extent, it certainly did not help matters that the Chief Justice did not remember but that some records indicated he was a member. It also did not help matters that the White House was so oddly defensive about the entire matter -- instead of simply taking Stephen Bainbridge's advice and making it clear that being a member of the Federalist Society is nothing whatsoever to be ashamed of. But even given the fact that the response to the fear-mongering regarding membership in the Federalist Society was less than adroit, it should be of concern to any fair-minded individual that such associations are the subject of so much subtle (and not-so-subtle) calumny and innuendo.

Those who are actually interested in understanding the nature and activities of the Federalist Society might do well to note that the Society does not "lobby for legislation, take policy positions, or sponsor or endorse nominees and candidates for public service," as opposed to the American Bar Association, which as indicated here, does take public positions on the issues of the day and pledges to lobby publicly for the adoption of those positions. There is certainly nothing wrong with the ABA speaking out. But it would be nice if the Federalist Society would get similarly generous treatment.

After all, as Eugene Volokh's excellent article about the activities of the Federalist Society demonstrates, there is a great deal more diversity of thought and opinion within the Society than its critics would have you believe. To be sure, the Federalist Society is made up predominantly of conservatives and libertarians, but it is also quite famous for hosting debates between conservatives and libertarians on one side, and left-of-center lawyers and legal commentators on the other. As Professor Volokh puts it:

        "The society is genuinely open to a variety of views. It takes no position 
        on legislation or on candidates. It files no lawsuits or friend of the court 
        briefs. Its charter is to create discussion, not to lobby, litigate or get out 
        the vote. It welcomes moderates and liberals, if they want to participate, 
        as well as libertarians and conservatives; anyone is free to join.

        "This openness extends to Federalist conferences, which invariably 
        include liberal speakers, such as Justice Stephen Breyer; Clinton administration 
        White House counsels Abner Mikva and Bernard Nussbaum; professors 
        Akhil Amar, Alan Dershowitz, Randy Kennedy and Kathleen Sullivan; 
        ACLU leaders Nadine Strossen, Burt Neuborne and Steve Shapiro; and many 
        more. I know of no other law-school-based group that consistently 
        sets up panels as balanced as the ones we Federalists put together."

Nor do I. But this hasn't stopped the conspiracy mongers from intimating that the Federalist Society is some kind of secret right-wing cabal that plots and schemes its way towards political domination. Critics of the Society note that many a member has become a key public official in Republican Administrations. Indeed, they have. But many a member of the American Constitution Society -- the Left's counterpoint to the Federalists -- will no doubt be asked to staff future Democratic Administrations. Would it be right for conservatives and libertarians to engage in the same kind of conspiracy mongering towards the ACS that liberals engage in towards the Federalists in the event that a future Democratic Administration takes power?

Certain affiliations of a judicial candidate can be cause for concern or alarm. If a judicial candidate is a member of a Maoist party, or the Nazis, or the Ku Klux Klan or some ecoterrorist movement, there would be every reason to be concerned about such an affiliation.

But it should go without saying that the Federalist Society is a mainstream right-of-center group with a distinguished membership which does not deserve the innuendo to which it and its members have been subjected. As such, perhaps judicial candidates who are Society members should be judged on their merits and asked about the qualifications they bring to the judicial branch. I myself am less than pleased with the Miers nomination, but if she and other nominees to the bench are to be critiqued it should be on the basis of qualifications. It's a far better approach than worrying about the influence of secret clubs, secret handshakes secret decoder rings and secret plans for political domination.

The author is a lawyer and TCS contributor. Find more of his writing here. He is a lapsed member of the Federalist Society.

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