WHEN PRESIDENT BUSH nominated John Roberts for the Supreme Court, he was widely praised by conservatives. Roberts had such impeccable credentials that even his foes conceded Bush had chosen a top-notch nominee. But deep in John Roberts's past lurked a secret that threatened to undermine his nomination: at some point, Roberts had had some association with the Federalist Society.
On July 25, the Washington Post ran a front-page story with the ominous headline, "Roberts Listed in Federalist Society '97-98 Directory." The story's sub-head--"Court Nominee Said he Has No Memory of Membership"--indicated that Roberts was showing the good sense to sprint away from any association with the organization, thus heightening the sense of scandal. The White House fed the impression that being associated with the Federalist Society was somehow a matter of shame by having a spokesperson quickly insist that Roberts had "no recollection of being a member of the Federalist Society, or its steering committee."
Thanks to the Harriet Miers nomination, the Federalist Society is once again in the news and, once again, is being portrayed as a skeleton that aspiring Supreme Court justices should keep locked away. The media has made much hay out of Miers' now notorious 1990 pronouncement that she wouldn't belong to the Federalist Society because it was too "politically charged" and might unduly "color" one's views.
IN A WAY, the entire Federalist Society controversy can be laid at the feet of Michael Dukakis. In a 1987 interview with New York magazine, Dukakis referred to himself as a "card carrying member of the ACLU." The problem with so openly affiliating himself with the ACLU was that the ACLU routinely advocated issues with which the vast majority of the country disagreed. (This habit has continued to the present day.)
As Dukakis discovered, discussions of the ACLU seldom involved the organization's admirable principles or non-partisanship. (The ACLU has in the past represented organizations such as Operation Rescue because of its commitment to free speech.) Instead, the ACLU is more typically (and unfairly) characterized as a group of left-wing lawyers determined to repeatedly stick its thumb in the eye of traditional American values and common sense.
Throughout the 1988 campaign, George H.W. Bush bludgeoned Dukakis with his ACLU association, going so far as to repeat the governor's "card carrying" description at one of their debates.
AMONGST THE MEDIA POWERS THAT BE, the presence of the ACLU on the political scene must have seemed unfair. Nature deplores a vacuum and so do simple-minded media outlets. Thus, a new narrative was generated: The Federalist Society became the right-wing yang to the ACLU's left-wing yin.
Never mind that the narrative is nonsense. The Federalist Society is not a sinister conservative cabal. Indeed, the two organizations have little in common. As the ACLU's president, Nadine Strossen, put it, "The organizations are on different vectors."
Unlike the ACLU, the Federalist Society makes it a point to never endorse a particular side of an issue--let alone represent litigants arguing those issues. Although media reports like the Washington Post's July story darkly hint that the Federalist Society is some sort of conservative legal leviathan, such claims could scarcely be further from the truth. According to Eugene Meyer, the organization's director, the Federalist Society employs only 17 people, of whom only three are attorneys. The Federalist Society is first, foremost, and solely, an educational organization which tries to promulgate a conservative and libertarian view of the law.
SO WHAT DOES MEMBERSHIP in the Federalist Society entail? Well, for one thing, to be an official member you have to pay your dues--$50 a year. But as Meyer points out, many attorneys take part in the organization's functions without paying their dues. Indeed, he laughs, "Many 'members' of the society aren't sure whether they've paid their dues and are in fact 'members.'"
What do you get for your $50? For one thing, you get a membership card so that, hypothetically, you could describe yourself as a card-carrying member of the Federalist Society, if you were so inclined. For another thing, you get to attend Federalist Society functions, but since you can do so without being a member, the value of this benefit is questionable.
The nature of these functions varies a bit from branch to branch within the Society, but most of them involve a debate over some sort of legal issue combined with the consumption of food and/or alcohol. The activity level of the branches are less ambitious and mysterious than the Society's critics imply. For instance, the liberal Institute for Democracy Studies (IDS) has accused Federalist Society members of being in "the process of institutionalizing a comprehensive agenda challenging every aspect of a democratic judicial system." Contrary to the fears of the IDS, all Federalist Society functions are open to the public. What's more, the discussions rarely include achieving final conquest of the American judicial system. As one member of a Midwestern branch notes, "We get together every other month for beers, except when we forget to."
Why do Supreme Court nominees now fear even a tincture of association with the Federalist Society? Even the president of the ACLU, Nadine Strossen, praises group. And since the Federalist Society is a combination of libertarians and conservatives, it goes almost without saying that within the membership there is a healthy disagreement on many issues.
But what the membership does have in common is that it's composed of attorneys and law students who define themselves as something other than liberal. That in itself makes the members a minority in law firms and on law school campuses.
New York City lawyer Dan McLaughlin, author of the blog The Baseball Crank, is typical of the Federalist Society's membership. Although he has attended numerous Society functions, he "never exactly got around to joining." McLaughlin lauds the group's educational and networking opportunities. And he mocks the notion that the Federalist Society is some sort of secretive fraternity bent on political and judicial conquest.
He sums up the organization this way: "Fundamentally, the Federalist Society is a debating society. It doesn't use member dues for political campaigns. It doesn't file briefs in court. It doesn't adopt positions on particular issues, and its membership is almost certainly too fractious to get agreement on any such positions anyway other than maybe 'liberal judges are bad' and 'we should take the Constitution seriously.'"
AND YET the left-wing alarm bells regarding the Federalist Society continue to go off with some regularity.
In the July Washington Post story about Roberts, Emory law professor and Pulitzer Prize winner David Garrow put his concerns regarding Roberts and the Federalist Society this way: "What matters is whether he hung out with them." The professor feared Roberts might have undergone "intellectual immersion" as a result of this association.
Once you know what the Federalist Society is, comments like Garrow's are obviously ridiculous. As a law professor he should know better and almost unquestionably does. The White House, too, surely knows how absurd the demonization of the Federalist Society is. And yet distortions like Garrow's only become more deeply ingrained when the White House reflexively distances its nominees from the Federalist Society whenever a link is suggested.
Dean Barnett writes about politics and other matters at soxblog.com