Making a Federalist Case

Does it matter whether John Roberts was a member of the Federalist Society?

Nick Gillespie | July 26, 2005

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Meyer, who says he is "relatively pleased with our success so far," stresses the group's intellectual dimension. "In law schools, you'll see conversations going on today that just didn't exist 20 years ago. That's true in the legal community at large, too. We are having some effect on the legal culture. The very fact that people refer more to the text of the Constitution when they discuss critical legal cases than they used to [is a sign of our influence]. The range of views heard in law schools is far wider than it was 20 years ago. The general debate about these issues and principles is far more a part of the debate than they used to be."

While Meyer clearly prefers to talk about the intellectual life of the group, there's also a lot of professional networking going on. As Georgetown law professor Mark Tushnet notes in his recent A Court Divided: The Rehnquist Court and the Future of Constitutional Law, "By 1986, [one of the Federalist Society's founders] was able to boast that 'more than half of the 153 Reagan-appointed Justice Department employees and all 12 assistant attorneys general are members or have spoken at Federalist Society events.' As he put it, 'we do not run the Justice Department,' but 'we definitely have had an influence in bringing in conservatives who would otherwise not go into Government."

Tushnet—who described himself as a left-liberal during an interview I did with him for the July issue of Reason—offers up a fair assessment of the Federalist Society in his book. He writes:

Liberal interest groups used the society's connections to administration figures to show how the right wing had come to dominate the Bush administration and threatened to take over the courts. Conservatives responded by charging the liberals with "guilt-by-association" games. Both sides were right. Federalist Society connections were a good indication of what the new officials—and prospective judges—thought, yet each potential nominee had an individual take on what exactly it meant to be a conservative.

Hopefully, Roberts' confirmation hearings will help us discover his individual take on what it means to be a conservative. At this time, I'm not particularly wowed by Roberts as a nominee. It's a given that any person in his position is a careerist of the first order, but he seems to be a particularly strong case of a Stepford candidate—someone not so different from the John Kerrys and Al Gores of the world, folks who live their lives with one (or maybe both) eyes on some future prize, who never swerve from a self-aggrandizing path they chose early in life (or had forced on them). Such people—no matter how brilliant or accomplished—bore me as a concept.

More troublingly, at his confirmation hearing for his current post at the U.S. Court of Appeals for the D.C. Circuit, Roberts averred, "I don't have an overarching, uniform philosophy." Which kind of worries me. I'm in general agreement with libertarian law professor Randy Barnett, who told the San Francisco Chronicle, "The alternative to a comprehensive judicial philosophy is to take one from Column A, one from Column B, and one from Column C, mix it up with a pinch from Column D, and you can reach whatever result you want." I'd rather see someone with an overarching legal philosophy on the Supreme Court—not a monomaniacal ideologue, but someone with a semi-rational, thoughtful framework that guides his or her thought.

If I'm less than keen on Roberts, though, this much I know for sure: His affiliation with the Federalist Society should in no way be an issue. This is a group that provides a model for enhancing public discourse and having an influence on government and public policy. Liberals and left-wingers—and many conservatives and libertarians, too—would do better to emulate rather than demonize the Federalist Society.