Monday, July 25, 2005

Federalists, Founders, and Opposing Views

Let me add my own perspective to the mini-tempest over Judge Roberts and the Federalist Society. It may be helpful for one to replace "Federalist Society member" with "conservative lawyer" when reading about the organization. The former has become shorthand for the latter when talking about the ideology of an attorney.

If memory serves, I paid dues to the Federalist Society during my first year of law school (1991-92) and one year when I lived in Kansas (around 1998). I have been a conservative lawyer since I passed the bar in 1994. Given the shorthand, I guess that could make me a member for more than a decade. I never understood what exactly one does to become a member, or what makes it a "society." Despite the silhouette of James Madison on its stationery and the old fashioned name, the organization is really just a speakers' bureau for conservative and libertarian lawyers and academics. If there is a secret handshake or an agenda beyond sponsoring speeches and debates, I am unaware of any of it.

The Federalist Society does not promote legislation or file lawsuits. I wish there were an organization that served as the general counsel for the conservative movement, but this is not it. The organization is nominally for conservative and (lower case 'L') libertarian lawyers. But the standard program is a debate or panel discussion with opposing views represented. Here is a list of Federalist Society speakers over the years.

Under the leadership of my friend, Kim Crockett, the Minnesota chapter is meticulous about presenting different sides of an issue. One local program, exploring whether the legal system is racially biased, was rescheduled to make sure there was a spokesperson for the liberal perspective -- that discrimination is systemic and distinct from that which is found in other aspects of society. While there are many lawyers and law professors willing to play the race card, very few are willing to defend their accusations in front of a critical, but respectful, audience.

The aforementioned program on racial bias was submitted for credit under the Minnesota Continuing Legal Education (CLE) requirement. Lawyers must take two hours of "Elimination of Bias" CLE courses every three years in order to keep their bar licenses. Even though the program presented an opposing view by Minnesota Supreme Court Justice Paul Anderson, several lawyers sought to revoke the CLE credit granted to the Federalist Society. The State Public Defender argued that only those portions of the panel discussion where Justice Anderson spoke were eligible for credit. Following the controversy, Justice Anderson declined to speak at a subsequent Federalist Society event. This is significant because the justice is well known for attending every possible banquet and reception within the legal community. The guy must like chicken and peas.

I have argued that the Elimination of Bias requirement is unconstitutional, because it conditions a professional license on listening to liberal propaganda. When the Federalist CLE is presented as the lone alternative, I counter that the audience still has to listen to liberal propaganda in smaller chunks, since the Federalist Society always invites the opposing viewpoint. Despite my minor disagreement with the group on this point, interviewers covering the CLE story have dubbed me a Federalist Society spokesman, since it is a shorthand way to describe a conservative lawyer.

It is true that the Federalist Society's willingness to present opposing views does not mean that the membership and leadership is not conservative. However, the existence of libertarian elements within the group sort of undercuts the notion that membership is predictive of a certain view on social issues. Moreover, conservatives come in different varieties. It is not as though Federalists are "Scalia Scouts" and there is another group for the "Kennedy Crew." Senate Democrats say that they are willing to confirm a conservative, just as long as it is not an extreme conservative. Good enough. The Federalist Society is the only game in town for conservative and libertarian lawyers. Membership or leadership in the organization is not indicative of a specific agenda or philosophy. The only thing it might indicate is an open mind and a willingness to listen to opposing views.


Blogger Mayor of Tommyville said...

Members of the media and special interest groups are rushing to pin labels and pigeon hole Judge Roberts into an ideological box that the general public will find pallitable. I for one am not interested in the sound bites on CNN. The discussion which I would like to see more of is a discussion of the judicial philosophies that are involved, and how Judge Roberts may or may not apply them to the major issues. How does he feel about the legal constructs that uphold Roe, irregardless of his position on abortion itself, and more importantly, a discussion of the nature of those constructs as well as defining a plausible path which an Associate Justice Roberts could follow to help overturn them. After Souter, the administration winking at conservatives is not enough for us to make an informed decision.

July 25, 2005 6:29 PM  
Blogger Andy said...

thanks for this useful info on the Federalist Society... I was wondering what his involvement *actually* meant. Also enjoyed "Speaker, President, President."

I have a Roberts-related post myself, if you're interested. Cheers...

July 26, 2005 9:24 AM  
Blogger Theo p. said...

The Federalist Society is in every Law School in the U. S. of A that I know of, it is not the John Birch Society for Lawyers. Justice Ginnsburg was not just a member but Counsel for the ACLU a group much more left than the Fed. Soc. is right, and certainly more activist. Thanks for the analsis and to Powerline for the heads up on your post.

July 26, 2005 1:19 PM  
Anonymous Anonymous said...

You're confusing Douglas H. Ginsburg with Ruth Bader Ginsburg: two very, very different animals. The former is a brilliant (and essentially small 'l" libertarian) Appeals Court jurist and former SCOTUS nominee under Reagan, who was not confirmed because he admitted once smoking pot during college. The latter is a sitting Supreme Court Justice appointed under Clinton, who is very liberal, and would never have been a member of the Federalist Society.

July 26, 2005 10:26 PM  
Blogger Peter said...

Click the link to the list of Federalist Society Speakers. Ruth Bader Ginsburg actually spoke to the group. Which goes to show how involvement and membership and leadership in the group are not very formal. And it shows how the group is not a secret society.

In addition, Theo was talking about Ginsburg being a member of the ACLU, which could be seen as an ideological opposite of the Federalist Society. She was not just on a list, but was the group's general counsel. Theo was comparing Roberts' minimal involvement on a right-leaning group with Ginsburg's leadership of the ACLU.

July 27, 2005 1:37 AM  

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