The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
What Happened When Mark Joseph Stern Interviewed Judge William Pryor
Slate's legal correspondent questioned the Chief Judge of the U.S. Court of Appeals for the Eleventh Circuit about the Federalist Society.
The Honorable William Pryor, Chief Judge of the U.S. Court of Appeals for the Eleventh Circuit, delivered an introductory address at this year's Federalist Society National Lawyers Convention. The speech was a hit with attendees, quoting and responding to common (mis)characterizations and criticisms of the Federalist Society from folks like Senator Sheldon Whitehouse and various progressive pundits.
One of the those quoted (some would say "mocked") in the speech was Slate's Mark Joseph Stern. A week after the speech, Stern decided to ask Judge Pryor for an interview. To Stern's surprise, Judge Pryor agreed on the spot, on the condition that Slate publish a complete transcript of the exchange. Stern agreed and Slate has published the exchange. Although the sub-hed of the story promises a "rare look inside the elusive and influential group," there is very little in the interview that is not well known to those familiar with FedSoc itself, as opposed to the villianous caricature commentators like Stern tend to draw.
As Judge Pryor explained, many claims about FedSoc reflect a misunderstanding of how the organization operates, and fail to distinguish between the actions of the Society and the actions of its members. From the interview:
I think sometimes the criticisms of the Federalist Society frankly are a reflection of a misunderstanding that really is rooted in a different way of thinking about how the world works. I think sometimes a lot of people on the left side of the political and philosophical spectrum view the world and social change and political action and other kinds of activity as being top-down, centrally planned. Command and control. That the way to make things happen is to do it in a top-down fashion. From the right or libertarian side of the spectrum, I think people see more of a bottom-up view of the world and how things happen. It's more Adam Smith and invisible hand. Friedrich von Hayek would call it spontaneous order.
The secret of the Federalist Society is that it's much more of a bottom-up organization. It has created this forum and this marketplace for ideas of debate and discussion. As a result of that, a lot of relationships are formed. Connections are made through a network. A lot of people who would not necessarily know each other end up doing other things together that are not what the Federalist Society does. Criticisms of individuals affiliated with the Federalist Society, and imputed to the Federalist Society itself, are a reflection of that different kind of worldview.
I quite agree with this assessment. As I have noted before (including in an anonymous dispatch from the first American Constitution Society conference in 2003), those viewing the Federalist Society form the outside do not understand how it can be so influential without someone planning and orchestrating things.
Stern raises the fact that some Federalist Society members were involved in the effort to prevent certification of the 2020 election results. But he could also have noted that other Federalist Society members founded Checks & Balances and called for Trump's impeachment. By the common account, the outlier actions of John Eastman are more illustrative of what FedSoc is about than the efforts of George Conway or Steven Calabresi.
Stern does note that Judge Pryor was "one of three judges who recently ended the disruptive reign of a special master over the criminal investigation into Donald Trump," but makes no mention of all the other significant decisions by other Federalist Society-associated judges who have ruled against Trump's interests, including many whom Trump appointed to the federal bench. Apparently that would disrupt the narrative.
One particular exchange addressed Stern's accusation that the Federalist Society serves as a "radicalization machine" for judges and clerks.
[STERN] It seems to me there's this cycle where students push further and further to the right to prove their ideological purity and attract the attention of judges who are looking for very specific kinds of work. And that is fueling what I called the radicalization machine. I think this cycle rewards and incentivizes the adoption of certain unyielding views among current law students, who then become clerks who may eventually become judges. So I'm curious for your view on why I'm wrong about that.
[Pryor] I picked the quote because it was over-the-top rhetoric and a caricature and I thought people would find that humorous. I think that perspective demeans both the students and the judges. First of all, the students—I think the students are adults and take ideas and legal philosophy seriously. I think really what the Federalist Society ends up doing is providing an organization where a lot of students who are really into nerdy debates about the law can gather and do that. Those kinds of students are attractive to judges. It used to be, I think, that a lot of law clerks were drawn from who made the best grades, who was on the Law Review, who was active in political campaigns. But legal philosophy and legal methodology really matter. And as that was taken more seriously, both law clerks and judges were more attracted to each other. I have no reason to think that the law students are changing their views and becoming more radical. I think we end up getting law clerks who are just much more interested in law as law. A lot of those students become members of the Federalist Society.
So you don't think there's an unfair advantage for conservative students at law schools today in terms of landing prestigious federal clerkships?
I didn't say that. Many judges, me included, are interested in having law clerks who in a very broad sense share a perspective about what the judicial role is. Judging is an objective enterprise. I think there are right and wrong answers to the cases that come before us. And the right or wrong answer depends on what the law actually is. Not everyone shares that perspective. I'm interested in law students as potential law clerks who do, in a general sense, share that perspective. My law clerks often have a variety of political views and support a variety of political perspectives and candidates. Some vote for Democrats. That's not what I care about. I care about their view of judging and how law works. Many different kinds of law clerks are attracted to the Federalist Society. It promotes an idea that law is an objective enterprise.
As the interview highlights, the Federalist Society serves as a useful foil for legal progressives seeking to blame unfavorable legal developments to sinister forces. Senator Whitehouse, in particular, likens the Society to a conspiracy. Such characterizations are nothing new, and despite Judge Pryor's candid exchange with Stern, I doubt they are going away. The exchange may not have revealed too much about FedSoc, but it certainly was revealing about one of the Society's more persistent critics.
To get the Volokh Conspiracy Daily e-mail, please sign up here.
Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Comments may only be edited within 5 minutes of posting. Report abuses.
Please
to post comments
Typos are very distracting.
“… ahit ..” a hit
“… quoteing …” quoting
“… sub-hed …” subhead
“… mnay …” many
“… organizatio …” organization
Sorry. I worked 1969-2004 in the typesetting department of a large book manufacturer. The proofreading department was ruthless on us.
I normally think that this kind of backseat copy-editing is tacky, but these errors were really distracting. Jonathan should go back and fix these.
There’s a “form” which should be “from”. I noticed most of yours too. I figure that’s the key — when readers notice the typoes, they are distracting.
Seriously. The criticism of the Federalist Society reveals more about the psychology and methods of the critics than it does about the psychology and methods of the Federalist Society.
I have found that to be true about a lot of things.
Senator Whitehouse, in particular, likens the Society to a conspiracy.
A conspiracy requires an agreement to commit a crime. Otherwise, any time two people get together for any purpose, it’s a conspiracy. If I ask my co-worker if he wants to go out to eat, that’s a conspiracy to commit lunch? More seriously, is the Democratic party a conspiracy?
This was one of the things I hated about Hillary Clinton, her claim that there was a “vast right-wing conspiracy” against her husband. Is political opposition to the president a crime?
I mean, I don’t think the Federalist Society is a conspiracy, but insisting the only potential definition is the legal one is nonsense.
re: Hillary, you do know that people have come forwards admitting they were part of a large and coordinated across the media and Congress effort to undermine the Clintons, yes?
And you are aware of the FBI and Clinton/Obama conspiracy to derail the 2016 election, and the Twitter/DNC conspiracy to derail the 2020 election?
No, I’m not an idiot who believes right wing bullshit. But thanks for asking!
It was a rhetorical question. The left’s misinformation is strong with you.
“re: Hillary, you do know that people have come forwards admitting they were part of a large and coordinated across the media and Congress effort to undermine the Clintons, yes?”
Do tell. It’s called political opposition. Which last time I checked is not only legal, but considered a healthy party of democracy.
Do you think that Donald Trump was not subject to a similar “conspiracy?”
Sorry, people who use “conspiracy” to describe concerted and coordinated efforts to achieve perfectly legitimate results are engaged in gas lighting.
I’m all for avoiding conspiracy theories, but insisting there be a crime involved does some serious violence to the English language.
As for Trump, no it wasn’t coordinated. He just couldn’t stop breaking rules and laws and blabbing to reporters.
Just take these ‘twitter files’ – they’ve found no proof of coordination at all, just the usual channels to report abuse being used by both parties.
There has to be wrongdoing. Concerted action for something legitimate is not a conspiracy.
So moderated from criminality to wrongdoing, I agree.
I think many would argue that many of the anti-Clinton efforts crossed the line (Vince Foster accusations spring to mind) both by the media and Congress.
Meetings between Twitter execs and FBI/CIA agents and reporters are not coordination? They were just having a pot luck dinner.
Your blindness on the Twitter stuff would be astounding coming from anyone other than you.
And Mark David Stern is a massive practitioner of misinformation while loudly decrying it.
The FBI reporting criminal activity to Twitter was not a conspiracy, nor was it anything partisan at all.
Other than that, I don’t believe there was any other FBI-twitter meetings.
Whatever source is telling you the upshot of this twitter stuff is doing you quite a disservice.
It’s called political opposition. Which last time I checked is not only legal, but considered a healthy party of democracy.
Yes. It is. But the Clinton opposition was exceptionally slimy, accusing the Clintons of, among other things, many murders. That’s not healthy.
Civil conspiracy in almost all jurisdictions I know is not an independent civil tort, but a means to extend tort liability to other actors. So, yes, a civil conspiracy means a concerted action to achieve somethingn wrongful, including civil wrongs like fraud.
And it is precisely the lay definition that I am objecting to. People work together to achieve all kinds of ends by all kinds of means. If the ends and means are not wrongful (either civilly or criminally), then calling it a “conspiracy” is gas lighting.
Particularly in the political arena. Is every political party a “conspiracy?” Not in a democracy.
Is political opposition to the president a crime?
Answer: Evidently, it is now.
Who is in jail for opposing the President?
“Is political opposition to the president a crime?”
It’s incitement to violence, obviously.
That journalist seems to have been kind enough to refrain from asking about Judge Pryor’s record with respect to hiring clerks.
Did he ask about the Federalist Society’s recent record of barring of (at least certain) journalists from its events? Who do they think they are — the Volokh Conspiracy?
Sooooo… Mark Joseph Stern isn’t sufficiently progressive for you that you question his interviewing approach/acumen? You really think, having the opportunity to interview one of the great malevolent legal minds of our era (from Stern’s perspective), that he pulled his punches and failed to ask challenging questions?
You are an even bigger phony crybaby hack than ever imagined. Everything is faux outrage with you to own the cons. To get the answers to your questions, you could just read the interview transcript.
The hiring of a racist slur-spouting clerk (by more than one Republican federal judge, if I recall correctly) was widely debated and is newsworthy, even by the standards of a white, male blog that uses racial slurs regularly.
Mr. Stern was entitled to conduct his interview as he wished (and he admitted he pulled some punches, for which I do not criticize him.) I noted that Judge Pryor and the Federalist Society got off easy.
Now try to be nicer, lest your betters not continue to be such gracious victors in the modern American culture war.
You criticized Stern for letting him off easy. You suggesting people can conduct themselves as they wish is a first, since you always pass judgment here, tribally, attacking the cons. It’s a tiresome shtick.
This is me being nice, because you most certainly are a nasty piece of work, cheering that people whom you judge inferior get what you think they deserve. How are you any different than those you criticize? Spoiler: you’re not, because you’re a troll.
The Federalist Society has hosted some really Trumpy speakers, and it sure looks like their members love them some anti-liberal reactionaryism.
Assuming they are responsive to the bulk of their members, I predict their claim of not being radical is going to be increasingly difficult to defend.
I guess it’s a difficult concept for people like you, to think that an organization might have a (right of center) diverse audience. This is just more back door illiberalism: some people are just beyond the pale and should not appear in polite company.
Whether something is radical is too often just an expression of the Overton window moving, or being nudged. Perhaps I wouldn’t take umbrage if it wasn’t that more often than not left of center groups face little criticism in mainstream circles for indulging collectivist or backdoor authoritarians, who of course mean well so they’re possible radicalism can be excused.
Personally I dislike most things Trumpy, but I also am not interested in deciding which views are too beyond the pale to be discussed in a public forum.
Check out Barr’s speech. It’s from the annual Federalist Society lecture, and it’s…not really sober originalist. It was a big deal, and very well recieved.
Sure, you can talk about how the Federalist Society contains multitudes. And for now, that is hard to argue against. But there is absolutely pressure from the FS ranks to get more results. Said results being less about coherent doctrine and more about owning the libs.
Since when is every Federalist Society speaker required to espouse “originalism”? I reject your latest straw man.
Do you really want to take a survey of the speaker of every partisan NGO, looking for those beyond the pale? Because I think we can find some equally objectionable ideas at left-of-center orgs spoken by former high ranking government officials.
That’s said, I was content with Bill Barr’s first tour as AG, and I don’t see him really being much different now. He hasn’t moved, the window around him has.
The slate article clearly demonstrates that fedsoc’s roots are super grassy and its funding is largely small dollar contributions from large numbers of those grassy folks. These same grassy folks (of modest means) help craft the lists of suggested candidates for scotus and state court positions.
As Judge Pryor notes, many young lawyers are simply legal nerds, and I’m one of them. I’ve never much agreed with Mark Joseph Stern, but his legal coverage was at least thought provoking in that legal-nerd sort of way in that he actually discussed legal issues and the Courts rather than the politics surrounding cases the way non-legal outlets like CNN, Fox News, etc., do.
But I always sensed that he was really nothing more than a political hack, and that intuition was confirmed when he wrote that Amy Coney Barrett was “in over her head.” She’s turned out to be one of the most thoughtful and thought-provoking members of the Court, and Stern just couldn’t bring himself to admit that, so he wrote a hitjob so detached from reality that I could never even attempt to take him seriously again.
Yes about ACB being “in over her head”. Just imagine the outrage if some FedSoc person said that about KBJ (who I think has embarrassed herself at times during oral arguments this year with her grandstanding). I don’t think she’s “in over her head”, but she definitely is new to the job. Or maybe she’s already made her choice about her role on the Court, speaking truth to power without caring about the particular legal issues at stake. We’ll see.
I don’t care whether it;s a “conspiracy” according to some definition or other.
I think what is plain, and what Pryor and Adler seem to dodge, is that it is not simply a debating society. It is also a politically active organization, that seeks to achieve political ends through the judiciary, in part by promoting its members for judicial positions.
The notion that it is just about the law as law, with no political bent, strikes me a silly.
So, like the ACLU?
Trying to achieve political ends is common behavior. I think what Prior is trying to dispel is that it’s an evil cabal that is trying to strip Americans of their rights or bring back Jim Crow or whatever. Which seems probably correct, although I haven’t seen enough of the FS to have a well-formed opinion. I’m pretty comfortable though that Jim Crow is dead am gone forever, regardless of hyperbole from the left.
The ACLU doesn’t mask their political advocacy by claiming they are simply an apolitical debating society.
So, like the ACLU?
Pretty much.
It is also a politically active organization, that seeks to achieve political ends through the judiciary, in part by promoting its members for judicial positions.
Now bernard11, I had to chuckle at that comment. What’s the difference between the Federalist Society and the American Constitution Society? Your comment could apply to nearly any organization out there with equal validity.
Quod licet Iovi, non licet bovi
B.L.,
I never said what they did was illegal or unethical.
I said I don’t like all the sanctimony they surround it with.
XY,
Of course. What I object to is all the posing and solemn proclamations about how it’s just about the law, etc., etc.
The top down vs. bottom up argument is nonsense. People on the right regularly attribute isolated statements and actions by individual people on the extreme fringe of the left directly to Democratic Party organizations and leaders, as if they were commanded and controlled by them, in just the Judge Prior is claiming that only people on the left do. The claim there’s any difference is nonsense.
It might rile up the base to say that the reason Christians never get sick while non-believers do is because Christians have faith, and this is a key difference between Christians and non-believers. Same here. After all, a false assertion can be explained by anything, so you might as well pick something you want to put in your listeners heads.
Judge Pryor’s idea is no less patently false. The idea that the left attributes the actions of the right’s fringe to its leadership while the right somehow doesn’t do exactly the same requires spending significant time hiding under a rock to believe.
I’ve heard and read a number of left-leaning law profs who say they are willing and happy to participate in FedSoc panels and debates at the local level, but would never support the organization at the national level because of its political agenda. Perhaps this is the dichotomy Judge Pryor is trying to describe.