New at Reason

Tim Cavanaugh | July 26, 2005

Nick Gillespie asks: Does it matter whether John Roberts was a member of the Federalist Society?

Comments

bruce|7.26.05 @ 9:54PM|#

No moreso than if a nominee were or had been a member of the ACLU.

|7.26.05 @ 10:07PM|#

Are you now or have you ever been a member of the Federalist Society?

|7.26.05 @ 10:13PM|#

It's pretty ridiculous to seize upon membership in a political group as "evidence" that a judge is unsuited for service (short of that group being the Revolutionary Communist Party or the KKK). Everybody in DC and related circles is a Republican or a Democrat; you can't be part of the government and not have some connections, and it's not like a guy who was an antisocial recluse with no visible opinions would even get considered for the SC, anyway.

|7.26.05 @ 11:12PM|#

Everyone seems to miss the point of the WaPo story -- no suprise because the point is fairly obscure.

Early reports about Roberts from the Post, AP and pretty much everywhere else mentioned that he was a member of the Federalist Society. Someone -- let's stipulate in the White House -- said that wasn't the case, so AP and the Post ran corrections to that effect. Then, over the weekend, someone came forth with a document asserting otherwise.

There's no scandal, other than to readers of the American Prospect, but newspapers hate to run corrections, and they love nothing better than proving that their original story was correct after all.

|7.26.05 @ 11:26PM|#

Oh, geez. Well, if questioned about it, Roberts should say something like, "I honestly can't remember if I ever paid membership dues, but I was one of the 35,000 people involved in the Society's activities. It's not exactly a little-known group; we have events where people from all over the political spectrum are invited to speak. It's dedicated to preserving the freedom of our citizens and preserving the checks and balances on governmental power that are outlined in the U.S. Constitution. I can't see that anyone would object to that ... sir?"

Nick G. sez: Roberts averred, "I don't have an overarching, uniform philosophy." Which kind of worries me. ... 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.

Me too. Although, as the eternal optimist, I'm hoping maybe Roberts meant, "I don't have any overarching, uniform philosophy that fits any easy pre-existing label you're likely to have heard of, like liberal or conservative or strict constructionist or loose-constructionist."

I mean, at my stage of life I've put together a pretty consistent overarching philosophy of life that's held pretty steady for at least the past 10 years. "Libertarian" or "anarchist" doesn't fully cover it, and for some audiences would be misleading. If I tried for a comprehensive label, it would probably be something like "anarcho-agorist cultural-evolutionist emergentist tradition-leaning non-preaching Catholic bushido-admiring individualist." But if asked by someone who's used to the usual labels of "Republican" or "Democrat" or "conservative" or "liberal," I'll say, "Eh, independent." Someone might interpret that as a rudderless, Column A/B/C type.

|7.27.05 @ 12:00AM|#

Well, Stevo, Roberts didn't come out and make that eminently-reasonable statement. He, but more particularly the White House and the people managing his confirmation battle, decided to fight, fight, fight agaisnt such a strategy of forthright openness.

The Right has made no bones about its judicial nomination strategy - it's called the "stealth candidate." Nominate a right wing activist who is young enough to be on the court for a long, long time, and to have a thin enough judicial career that he doesn't have a paper trail of decisions to indicate what his philosophy might be. Then, when questioned about that philosophy, to clam and refuse to answer any question that touches on how he might consider any legal question that could have relevance to any past, pending, or future case.

Like trotsky says, it's not the Federalist Society membership per se that made this a story, but the way "Roberts'" spinners reacted to the issue of his membership. If membership in the Federalist Society is being treated as something to smear somebody with, it's because "his" political acted as though it was.

Now, either they know what they're doing, and have decided that a judicial candidate defined as a Federalist Society guy is going to alienate most of the American public, or they're idiots, who started this fight for no good reason, and have made Roberts' involvement with the Federalist Society look creepy. Fred Thompson's off to a great start, isn't he?

|7.27.05 @ 12:02AM|#

er,

"Then, when questioned about that philosophy, to clam UP..."

and

'"his" political TEAM acted as though ..'

|7.27.05 @ 12:16AM|#

Alright, joe, I'll grant you that the political team involved in this hasn't handled the Federalist Society membership very adroitly. But let me ask you 2 questions:

1) Is the membership itself really something worth making a big deal over? Forget, for the moment, that they're acting like it is (I'll get to that in question 2), just tell me whether you think the membership itself is a big deal. And yes, I know, it has to be put in context, to find out if he's a run of the mill conservative involved in a group that's a who's-who of conservatives, or a die-hard ultra-righty. Well, that context depends on a lot more than his membership. So, does the membership itself matter?

2) Everybody knows that the cover-up is always a bigger deal than the secret being covered up. Well, is this cover-up really worth getting upset over? Leaving aside the triviality of the secret, there are no sworn statements that could be construed as perjury, no hush money paid, no dead bodies, nobody fired for blowing whistles, none of the things that would make a cover-up really juicy. All we have are a few Clintonesque statements to the press, and those statements weren't even made under oath. Really, by the standards of cover-ups, this one's pretty tiny.

So, the secret itself is trivial. The cover-up involves a few incompetently framed public statements rather than sex, lies, and videotapes. Really, it's nothing to get excited about.

Anything else I failed to cover?

Oh, and for the record, I despise George Bush and I think Roberts will always find a way to rule in favor of giving the federal government more power if there's a right-wing interest at stake. I don't have any motive for defending Roberts and this administration. I just think the Federalist Society "scandal" is bullshit.

|7.27.05 @ 12:45AM|#

OK, joe, let's assume that Roberts is a member of the big, bad Federalist Society. Is that a reason to vote against confirming him?

|7.27.05 @ 2:19AM|#

As others said, never mind the Federalist Society. That's like Republican or Democrat: wide ranges of opinion can be found under such labels. It's stipulated that he's a "conservative", whatever that is supposed to mean. The issue is: what [i]flavor[/i] of conservative. Most of us would be happy with one tarred with the libertarian brush, but I doubt W is foolish enough to put an actual libertarian on the Supreme Court, since a libertarian could side with them evil liberals when it comes to upcoming Oregon assisted suicide case and the various challenges to the state's police powers that will follow W the rest of his term.

No, after Daddy was humiliated by the Souter appointment, I think W is very certain of the kind of judge Roberts will be. I think Roberts will tend to uphold expansive federal police powers, expansive federal interference in economic matters, and expansive federal interference in social arrangements previously left to the states, such as marriage, adoption, end-of-life care, education, etc. In otherwords, Roberts is likely to be a "federalist" not at all.

God, I hope I'm wrong.

|7.27.05 @ 3:24AM|#

So from my point of view things have unfolded this way

1)Lefty wingnuts accuse a conservative judge of belonging to a conservative legal society

Seems fine to me. No reason he shouldn't be a member, particularly as it seems to be a debate society dealing with federal law.

2)Judge/handlers deny his membership.

Wingnuts got it wrong, not much here either. Everything proceeding as expected.

3) Proof emerges said judge was on the steering comitee of said conservative society, he still says he doesn't recall this.

Huh, ok someone is lying or something weird is going on. Did someone just decide Roberts is too bland and they need some type of scandal? I mean seriously there is even less to this scandal then Clinton getting a BJ yet the Roberts confirmation team has seemed to conjure forth all the appearance of a major scandal single handedly. Most likely nothing will come of it (as there really is nothing there unless he got a BJ at a federalist society meeting) but still, can't the whitehouse do any better?

|7.27.05 @ 7:06AM|#

Well, it's a sad commentary that American people know so little about their own constitution, its formation and history that someone can conjure up the name "Federalist Society" as if it were on the league of some evil cabal like "Borgias", "The Manson Family" or "Illuminati".

Guess it's the same people looking for a thousand points of light in the meaning of the New World Order in pyramids on dollar bills ....

If this is the best that the Hillary is God crew can come up with, I think Roberts will be a shoe-in.

|7.27.05 @ 9:07AM|#

BAI,

Don't be so shallow as to be fooled by labels. How many "Democratic People's Republics" would you want to live in? Do you remember the ultra-nationalist, antisemitic Russian politician Vladimir Zhirinovsky? His party is called the Liberal Democrats.

thoreau, Steve, I don't think membership in the Federalist Society, per se, should be any kind of a block on his approval. I more of less agree with Portlander, that there is a broad range of opinion among members of that group. However, it does peak my interest, because among that broad range are some pretty radical, unprincipled activists, like Kenneth Starr or Clarence Thomas.

|7.27.05 @ 9:34AM|#

I was past president of the Federalist Society at my law school a few years ago. We were the only law school organization that invited speakers from both sides - left and right - to debate an issue. The left-wing groups at my law school never invited conservatives or limited-government libertarians to provide opposing view points. Judge Roberts should be proud of his Federalist Society membership for that reason alone.

|7.27.05 @ 10:27AM|#

Hmmm, Judge Roberts is seeming more and more to be a very good choice.

|7.27.05 @ 10:41AM|#

Kenneth Starr? Joe, do you know anything about Kenneth Starr's record, other than as special prosecutor? He's a regular John Roberts--totally boring, whitebread, "establishment" conservative. He's the dean of the Pepperdine law school now, which ain't exactly Liberty University.

|7.27.05 @ 10:57AM|#

other than that, how was the play Mrs. Lincoln?

|7.27.05 @ 11:04AM|#

I know that he was considered sufficiently partisan to raise the hackles of many responsible Democrats, like Barney "Put a Sock In It, Howard!" Frank, when he was first appointed to replace, uh, wossisname, the highly-respected prosecuter who first had the Whitewater portfolio.

I also know that in the single most important assignment of his life, he engaged in the most deplorable partisan overreaching, leaking, and coordination. So I'm pretty comfortable calling him a partisan activist.

|7.27.05 @ 12:08PM|#

"It's pretty ridiculous to seize upon membership in a political group as 'evidence' that a judge is unsuited for service (short of that group being the Revolutionary Communist Party or the KKK). Everybody in DC and related circles is a Republican or a Democrat"

But isn't being a Republican or a Democrat pretty conclusive evidence that you're not suited for public service?

|7.27.05 @ 12:18PM|#

Starr is a mainstream conservative. Thomas is far more libertarian. The comparison is insulting to the best Justice we have on the current Court. I'd rather Roberts was a member of the Federalist Society, but given his age, it isn't something that bothers me that much. The Federalist Society was without question the most intellectually stimulating orgainization at my law school and they always tried to provide panels and speakers that would stimulate debate, not just partisan talking points. I would expect that something like 90% of future GOP judicial appointments will claim some Federalist Society association, but that generation hasn't really been taped into yet. The Society was founded in the 80's, so the lawyers who grew up with the society have yet to come to power.

|7.27.05 @ 4:44PM|#

Joe said:
"However, it does peak my interest, because among that broad range are some pretty radical, unprincipled activists, like Kenneth Starr or Clarence Thomas."

It may be true that Starr is an "unprincipled activist", but I'll have you know that Thomas is a principled, activist. Unlike his supposed twin Scalia, who appears to be increasingly of the "power for power's sake" mindset these days. If Roberts is of the Scalia mold, both libertarians and liberals will find much to lament.

|7.27.05 @ 6:41PM|#

Seamus - zing! Too bad it's not funny...

|7.27.05 @ 10:45PM|#

scott, "Starr is a mainstream conservative. Thomas is far more libertarian. The comparison is insulting to the best Justice we have on the current Court." I was not comparing them along a philosophical axis between libertarian and conservative, but along a tempermental axis between fair/honest and partisan/activist.

Portlander, if Thomas is so principled, then why did Justice Original-Intent-Is-The-Only-Appropriate-Standard so eagerly rule against affirmative action on 14th Amendment grounds, when the original understanding of that amendment would in no way have forbidden policies of government restitution based on race?