Making a Federalist Case

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

What can ideological and political opponents say to slag a Supreme Court nominee who, while clearly of a conservative bent, possesses precisely the sort of nauseatingly impressive if thoroughly conventional c.v. (e.g., Harvard undergrad, Harvard law school, clerking for William Rehnquist, a stint in the Reagan White House) that right-wing, centrist, and left-wing establishment types usually slobber over?

Judge John. Roberts may well be the walking, talking equivalent of a mayonnaise sandwich. Certainly he is, like virtually everyone who possesses his pedigree, the product of great affluence and ambition (two things that don't always mix). He isn't the descendant of slaves, didn't grow up poor, and never triumphed over the racial and gender prejudices that, say, Clarence Thomas or Sandra Day O'Connor had to deal with. Which is to say that he's more like most Harvard Law grads—and Supreme Court nominees—than not. Indeed, Roberts is apparently such an inoffensive, play-it-straight careerist that the weirdest thing you can say about the guy is that he portrayed Peppermint Patty in his all-boys high school version of You're a Good Man, Charlie Brown.

And that he may have been a member of the Federalist Society for Law and Public Policy Studies, a conservative and libertarian nonprofit organization that was founded in 1982 and is, in its own words, "dedicated to reforming the current legal order." According to the group's backgrounder:

We are committed to the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. The Society seeks to promote awareness of these principles and to further their application through its activities.

If this is the dirtiest dirt anyone can dig up on the nominee, it's all over but Joe Biden pulling his hair plugs out and Ted Kennedy yammering on about back-alley abortions before passing out at Au Bar.

Yet Roberts' association with the Federalist Society—dubbed a "conservative cabal" by liberal detractors—has emerged as his opponent's first best hope for derailing his nomination. In Monday's Washington Post, staff writer and former editor of the reliably Democratic New Republic, Charles Lane wrote that "The Post obtained a copy of the Federalist Society Lawyers' Division Leadership Directory [for 1997-1998]" that names Roberts as a member of the steering committee for the group's D.C. chapter. Roberts has said he has "no recollection" of being a dues-paying member or of being on any committee for the group. That's a squirrely answer to be sure, but it may well be an honest one.

Lane doesn't say who fed the directory to the Post, but the inference is that it's some sort of secret document (which it's not) and that an association with the group is a black mark, or at least a smudge, on Roberts' record (which it is, in certain circles).

"The society's alignment with conservative GOP politics and public policy makes Roberts's relationship with the organization a potentially sensitive point for his confirmation process because many Democrats regard the organization with suspicion" writes Lane. "'As this episode makes clear, the Senate needs to go behind the glowing accounts of Roberts's record to figure out what he really thinks and what he really did,' said Nan Aron, president of the Alliance for Justice, a liberal organization that has been critical of the Roberts nomination."

For many liberals and left-wingers, the Federalist Society functions as nothing less than a shadow government. In March 2000, the Washington Monthly ran a series of articles on what they dubbed "The Conservative Cabal That's Transforming American Law." Promoting an excerpt from Joe Conason and Gene Lyons' book Hunting the President, the mag talked of "what the Federalist Society almost did to Clinton," suggesting that the group was the motive force behind the impeachment of the Man from Hope. Earlier this month, former Clinton staffer Sidney Blumenthal wrote that the society is "a tightly knit group of conservative lawyers created during the Reagan period [that]now operates as a controlling network throughout the Bush administration. There is simply not a single presidential appointee in a position of legal responsibility who is not a card-carrying member."

That sort of overstatement is precisely the sort of publicity craved by fundraisers at any 501(c)(3) nonprofit such as the Federalist Society. Such organizations, named for the tax code that controls their activities, cannot lobby for specific legislation or endorse specific candidates. Donors can deduct contributions from their federal income tax and the groups have wide latitude to espouse positions on just about everything under the sun as long as they stop short of unambiguous support for a particular bill or candidate. Reason, for instance, is published by a 501(c)(3), as is Mother Jones, The American Prospect, and other publications whose politics and proclivities are hardly hidden under a bushel. Think tanks such as Cato, Heritage, and Brookings also have 501(c)(3) status.

While there's no question that the Federalist Society has grown massively in stature, funding, and influence since its founding 23 years ago, there's very little reason to pillory it or to suggest it somehow operates under a cloak of darkness. Indeed, regardless of one's political, philosophical, or ideological leanings, there's every reason to be impressed with the way that it has enriched intellectual discourse—and provides a model for influencing public debate.

I spoke with the Federalist Society's president, Eugene Meyer, after reading the Washington Post piece. (Full disclosure: Meyer has attended several Reason Foundation events and he and I are acquaintances from those events; at least a couple of Reason Foundation trustees [D.C. rain maker C. Boyden Gray and Los Angeles attorney Manuel Klausner] are influential members or affiliates of the Federalist Society.) The society, Meyer told me, has a current budget of about $5.5 million. About two-thirds of that comes from foundations, 10 percent to 20 percent from individuals, 10 percent from corporations, and 10 percent from dues. (All figures are approximate and in flux, which explains why the percentages above add up to more than 100.) Those interested in a breakdown of sources can contact the group for a copy of its annual report.

Meyer says that about 35,000 people are "involved in one way or another"—which can mean anything from giving money to being a dues-paying member to being on one of the group's e-mail lists. He wouldn't confirm whether Roberts in fact was ever a dues-paying member of the group, though he defended the policy of keeping such things private as consistent with many other groups (his statement on the matter is online here). He did say that someone who served on a steering committee need not necessarily have been a member. Meyer adds that there are Federalist Society chapters at "most" law schools and in most states. Among the most currently active chapters is the Harvard one, which has about 100 members and 300 people on email lists.

The basic activity of the society is to hold panels, forums, and other discussion venues in which ideas about law, government, and society get bandied about. All events are open to the public; for a list of recent and upcoming events go here and here. "The group is about ideas," says Meyer, whose father Frank was a founding editor National Review and an advocate of a big-tent version of conservatisim known as "fusionism." "We are self-consciously about ideas and the discussion of how to preserve freedom, what the separation of powers means, and the Constitution's role [in this discussion]. It's not that the Constitution is sacred, but it's the best means we've found to protect a free society—one where the protections of life, liberty, and property are protected by the rule of law and respected by the government."

Given that sort of rhetoric, it's easy to see why conservatives and libertarians might find an inviting home in the Federalist Society. Meyer is quick to point out that the group tries to include a range of viewpoints in their debates and discussions. Among the liberal and left-wing figures who have spoken at the group's gatherings are Cass Sunstein (whose latest cause is pushing FDR-style welfare programs as a "second bill of rights"); Clinton appointee Walter Dellinger (whose bio page at Duke's law school mentions his connection to the group); and ACLU President Nadine Strossen (a civil, not economic, libertarian).

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.