“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.