The Volokh Conspiracy

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Volokh Conspiracy

Sen. Durbin's Attack on the Federalist Society at the Kavanaugh Hearing Is Silly.

I hope the hearing gets more serious. So far the hooting and hollering from the audience have been embarrassing for the Democrats.


Today's Kavanaugh hearing appears to have descended into chaos. Amid the hooting and hollering is the accusation by Senator Durbin that Kavanaugh is the nominee of the Federalist Society. Untrue. But if it were true, I'd be happy about that (and Trump's detractors should be happy too). You'd be hard-pressed to come up with an organization that that tries harder to engage in free and fair debate. Don't take my word for it. I'm a member. Listen to the positive views of these left-of-center lawyers about this 65,000-member organization:

"For over a decade, I have been privileged to be involved in Federalist Society events, and it's a really interesting thing that they have seen fit to invite me even though I generally don't think like them on a lot of things, and the quality of the speakers and the free-for-all discussion is unparalleled, so it's really been a privilege."—Neal Katyal, Acting Solicitor General (Obama Administration).

"I think one thing your organization has definitely done is to contribute to free speech, free debate, and most importantly, public understanding of, awareness of, and appreciation of the Constitution. So that's a marvelous contribution, and … in a way I must say I'm jealous at how the Federalist has thrived a law schools."—Nadine Strossen, Professor of Law, New York Law School & Former President, American Civil Liberties Union.

"[T]he Federalist Society has brought to campus the commitment to real, honest, vigorous, and open discussion. It is a result of the works of the Federalist Society to create a wonderful environment for discussing social, political, legal and constitutional issues."—Paul Brest, Professor of Law & Former Dean, Stanford Law School.

The Federalist Society's programs are not held in secret; even Sen. Durbin is welcome. It is one of the most open organizations I have ever known. And it strives to include speakers from across the ideological spectrum in its panel discussions. I can recall only one occasion, in 2003, when I panel I was involved in was not balanced (only because the liberal speaker failed to show up). Although, as a speaker, I had already given my own view on the topic (which was a more conservative view), I spontaneously got up and gave the liberal point of view too, just to make sure that the Federalist Society maintained its tradition of presenting the many sides of each issue.

By contrast, the supposedly mainstream Association of American Law Schools is famous for having brought in over 20 speakers to discuss the then-recent passage of California's Proposition 209 (which prohibited discrimination or preferential treatment on the basis of race, sex, or ethnicity in public employment, public contracting and public education). Every last one of the speakers opposed the initiative; not a single supporter was invited to speak, despite the fact that several law professors who had worked on the campaign, including me, were present at the meeting.