Friday, August 05, 2005

Federalists, Extremists, and Consistency

Ryan Winkler wrote an op/ed piece on the Federalist Society in the context of the Roberts Supreme Court nomination. I have written a couple of posts rebutting the notion that the organization is secret or that the conservative to libertarian "membership" has a single position on issues that come before the U.S. Supreme Court.

The Winkler piece implicitly supports the fact that Federalist Society membership does not make one an extremist. Winkler says, "Roberts is no ideologue, and reasonable Democrats are supporting his elevation to the Supreme Court. When liberals and conservatives keep their extremist fringe at bay, the public wins." He also praises his credentials and "truly conservative philosophy." Good enough. But why does he spend the rest of the piece attacking the Federalist Society? If Roberts can be a member (defined loosely) of the Federalist Society while remaining a non-ideologue, then membership lists are not some kind of smoking gun for the confirmation hearings.

The vitals at the bottom of the page tell us that Winkler is a corporate general counsel who lives in Golden Valley. *Ahem* So far, so good. It also claims that he is "president of the Minnesota chapter of the American Constitution Society, a national organization of moderate and progressive lawyers."

The American Constitution Society (ACS) was formed as a liberal counterpoint to the Federalist Society. An Associated Press article from 2003 notes that both the Federalists and ACS focus on" recruiting young members on law school campuses. Neither group lobbies or takes positions on legislation. Both have full-time offices in Washington." True, ACS prefers "progressive" to "liberal." Both groups lay claim to legal "moderates," but there is no doubt about what end of the ideological perspective each group occupies. The biggest difference appears to be the Federalist Society fixation on providing an opposing viewpoint at its seminars.

I don't blame ACS for not presenting opposing views at its events. To paraphrase a talk radio host, there is no need to provide equal time when your very existence is a rebuttal to something else. As a new group, it appears that most of the Minneapolis ACS events are happy hours. I know from personal experience how hard it is to form a new bar group. Even if the group does not undertake litigation or lobbying, it is difficult to get lawyers to spend their free time on legal stuff, after working a full day on other legal stuff. But unlike the Federalists, ACS has competition. State bar associations, along with the American Bar Association, have frequently taken positions on political issues. Predictably, these positions lean to the left. Thus, ACS is not the only game in town for liberal attorneys.

To the extent ACS dreams of becoming the liberal version of the Federalist Society, I wish them well. Hopefully they will not be demonized as the Federalist have been.

Here are a couple of gems from the op/ed piece, along with my responses:

Liberals did not invent judicial activism, and conservative judges have not been models of judicial restraint.

Conservatives blame liberals for decisions on reproductive choice, school prayer and free speech protection. They argue that liberals disregard the text of the Constitution and "legislate from the bench."

But these types of disputes have been ongoing since our founding, and will likely continue -- a century ago, activist conservative justices struck down state child labor protection laws because they violated the constitutional right to "freedom of contract." Try finding that clause in the Constitution.

Me: Was that the most recent example you could find?

But the tide may be receding. This year, for the first time, conservatives appear to be afraid of admitting membership in the Federalist Society, the conservative organization at the heart of these legal battles.

Me: Just this year? Tell that to Viet Dinh, who was grilled about the Federalist Society in 2001, when he was a nominee for assistant attorney general. Also, Winkler called Kim Crockett's defense of the Federalist Society, "as misleading as it is familiar." Sounds like this is a discussion that has been going on for longer than just this year. Finally, progressives aren't afraid just of admitting membership in an organization, they are afraid of admitting that they are liberals. A rose by any other name....


Blogger bill said...

I find the whole notion of having to obfuscate your identity if you are conservative to be a little extreme. When the old leftist-MSM monopoly was in place, it may have made sense, but not today.

If it struck no one as odd when Ginsburg said she supports the penumbra and emmanations right to privacy, why shouldn't Roberts say he sees no penumbra or emanations. What would be wrong with that?

August 08, 2005 10:28 AM  

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