“Our Flaw? We’re Just Not Liberals,”
by Eugene Volokh,
Washington Post, June 3, 2001
Suddenly, the Federalist
Society is the talk of the town. Just
last month, Richard Durbin (D-Ill.)
asked Viet Dinh, nominee for assistant attorney general for legal policy,
about his membership in the society.
Newspaper columns have likewise been abuzz about some of the Bush
administration’s judicial nominees -- Edith Clement and Jeffrey Sutton, among
them -- being members.
But what exactly is this
society? Is it some secret
fraternity? (It does have its own
neckties.) Is it a lobbying group? Does it file public-interest lawsuits? Does it -- heaven forbid -- have “an
agenda”?
Having joined the
Federalists in 1987, two years before starting law school (I was 19 and had
seen their ad in the National Review), I feel qualified to answer these
questions. The Federalist Society is a
group of conservatives, libertarians and moderates who share two things: an
interest in law and a sense that the liberal legal establishment often (not
always) gets things wrong.
We have no articles of
faith. Some of us are pro-choice,
others pro-life. Some Federalists --
such as Gary Lawson, a member of the society’s board of directors and a
professor at Northwestern University School of Law -- think the Constitution
should be interpreted primarily based on its original meaning. Others focus more on precedent or on
evolving tradition. Some, like
professor Randy E. Barnett of Boston
University, argue that the Constitution protects a broad range of rights beyond
those specifically listed in the first eight amendments. Still others, such as Supreme Court Justice
Antonin Scalia, who was a faculty adviser to the University of Chicago’s
chapter of the Federalist Society in the 1980s, believe that decisions about
such unenumerated rights should be left to the democratic process, not to
judges.
Many Federalists -- such
as Paul Cassell, a prominent critic of Miranda
v. Arizona, who teaches at the University of Utah College of Law -- believe
the police deserve more flexibility than they now have. Some, like Roger Pilon of the libertarian
Cato Institute, are much more skeptical of government power. And still others fall somewhere in between.
Most Federalists, like
most Americans, believe in free markets -- though of course there’s a range of
views on when the government should intervene.
Most adopt a vision of civil rights under which the government must
generally be color-blind, and may not engage in racial discrimination or racial
preferences. This is a widely held view
(though most liberal advocacy groups disagree with it). It has been held by, among others, Supreme
Court justice William O. Douglas,
leading constitutional scholar and former ACLU board member William Van
Alstyne, and millions of liberal and moderate voters in California and
Washington state. But even with this
hot-button issue, there’s disagreement within the Federalists, some of whom
support certain race preferences.
What, then, unites
us? The society does have a statement
of purpose (available at http://www.fed-soc.org/who.htm) but it mentions
general ideals such as individual freedom, separation of powers and the rule of
law -- important principles, but ones that are understood quite differently by
different people. I would wager that
most members have never read this statement, or (like me) read it once but had
long forgotten it.
Rather, our common bond
is just that most of us fall somewhere vaguely right of the center of the
political spectrum most of the time. Many
leading legal academic and professional institutions are dominated by liberals:
A recent study finds, for instance, that 80 percent of U.S. law professors
describe themselves as “Democratic or leaning Democratic,” and only 13 percent
call themselves “Republican or leaning Republican.” We who dissent from this orthodoxy naturally enjoy talking with
each other, even when -- especially when -- we disagree.
The society is genuinely
open to a variety of views. It takes no
position on legislation or on candidates.
It files no lawsuits or friend of the court briefs. Its charter is to create discussion, not to
lobby, litigate or get out the vote. It
welcomes moderates and liberals, if they want to participate, as well as
libertarians and conservatives; anyone is free to join.
This openness extends to
Federalist conferences, which invariably include liberal speakers, such as
Justice Stephen Breyer; Clinton administration White House counsels Abner Mikva
and Bernard Nussbaum; professors Akhil Amar, Alan Dershowitz, Randy Kennedy and
Kathleen Sullivan; ACLU leaders Nadine Strossen, Burt Neuborne and Steve
Shapiro; and many more. I know of no
other law-school-based group that consistently sets up panels as balanced as the
ones we Federalists put together.
We think that a fair
debate between us and our liberal adversaries will win more converts for our
positions than for the other side’s.
You can call this view cocky, but the result is a real addition to civil
discussion and the diversity of ideas in law schools and the legal
profession. As my colleague Dan
Lowenstein, a Democrat and political appointee of former California governor
Jerry Brown, once said, “The Federalist Society is one of the few student
organizations putting on public events that contribute to the intellectual life
of the law school.”
It is no surprise, then,
that some of the lawyers nominated to various offices by the Bush
administration are Federalists (though the Federalist Society itself plays no
role in the administration).
Republicans naturally prefer to appoint lawyers who are generally
somewhere right of center, and are interested in ideas and in public
policy. Democrats are likely to appoint
lawyers associated with the ACLU and other liberal groups; the same goes for
Federalists during Republican presidencies.
Of course, it’s also
natural that in this hotly partisan era, some who want to block Bush
nominations would try to tar Federalists with terms like “far-right,”
“ultra-conservative” or “right-wing reactionary” (in the words of people
representing the People for the American Way, the Institute for Democracy
Studies and the Institute for Public Accuracy, respectively). I wonder if these critics would call the
ACLU -- which, unlike the Federalists, does litigate and does take official
positions on legislation -- “far-left” or “ultra-liberal” or “left-wing
subversive.”
Probably not. To many such critics, liberal groups are
“moderate,” but conservative and libertarian groups, no matter how inclusive or
mainstream, are “extremist.” The labels
are tools of political attack, not of objective evaluation. Such pejorative epithets generally tell us
more about the temperament and ideology of the critics than about the people
being criticized.
So what do you know
about nominees who are members of the Federalist Society? You know they are probably somewhat
conservative or libertarian -- but you expect that about Bush nominees
already. You probably agree with them
on some issues and disagree on others.
And you might find that they have first-rate credentials and remarkable
life stories: Dinh, for instance, came to America at age 10 as one of the
Vietnamese boat people, did stunningly well in college and law school, clerked
for U.S. Supreme Court Justice Sandra Day O’Connor, and became one of the
youngest law professors at Georgetown University Law Center.
Maybe senators and newspapers should focus more on the nominees’ actual qualifications, rather than on the groups to which they belong.