Supreme Court nomination battle spotlights legal societies and their divergent views
Newer American Constitution Society modeled on more conservative Federalist Society
Sunday, August 14, 2005
By Michael McGough, Post-Gazette National Bureau
WASHINGTON -- As the U.S. Senate prepares to hold confirmation hearings on President Bush's first Supreme Court nominee, some liberals have fixated on whether John G. Roberts was a member of the Federalist Society -- a group of lawyers, professors and law students once described by the Washington Monthly as "the conservative cabal that is transforming American law."
The White House has denied Roberts was a dues-paying Federalist, and the nominee himself told the Senate he doesn't recall serving on a Federalist Society steering committee that listed him as a member. A New York Times editorial nevertheless advised the Senate to probe whether the administration had tried to deceive the public about a Roberts-Federalist connection, saying his nomination "should not be a matter for discussion only among the members of cloistered clubs who know the secret handshake."
But even as some critics of the Roberts nomination portray the Federalist Society as a cross between a Masonic order and a right-wing version of the Trilateral Commission (a group of establishment leaders that some conspiracy theorists believe secretly controls the world), other liberals have taken a page from the Federalist playbook.
A few days after the Times' "secret handshake" editorial, self-labeled "progressive" lawyers, law students and academics gathered at the Hyatt Regency Hotel on Capitol Hill for the third national convention of the American Constitution Society for Law and Policy, a group founded by Peter J. Rubin, a Georgetown University law professor.
Like Federalist Society gatherings, the ACS meeting held from July 28-31 combined activism and academics. Panel discussions on sentencing guidelines, immigration policy and election law were punctuated by crowd-pleasing speeches from liberal luminaries, including Sen. Joe Biden, D-Del., and Harvard law professor Laurence H. Tribe, both of whom said senators must question Roberts closely about his constitutional views.
ACS Executive Director Lisa Brown, who was counsel to Vice President Al Gore during the Clinton administration, acknowledged that the Federalist Society served as a model for her group.
"One of the reasons we grew so quickly is that the Federalist Society existed and was a model that law students understood," Brown said. "So the chapters just jumped up.
"No one understood the power of the model [the Federalists] were creating until relatively recently," she continued, "and I think all of a sudden people woke up and said, 'Wait a minute! How could we be asleep at the switch for so long?'"
The wake-up call for liberal lawyers and law students was the Supreme Court decision in Bush v. Gore that effectively awarded the presidency to George W. Bush after the 2000 election. "It made people realize how politicized a lot of the courts had become," Brown said.
Paul M. Smith, a Washington lawyer who serves on the ACS board of directors, carries as much legal star power as any fixture of the Federalist Society. Smith argued successfully for gay-rights groups in the 2003 Lawrence v. Texas decision in which the Supreme Court struck down a Texas law banning same-sex sodomy. He also represented Pennsylvania Democrats in their unsuccessful challenge to a congressional reapportionment plan adopted by the state's Republican-controlled legislature.
Smith agreed that just as the Federalist Society was formed in 1982 to counter a perceived liberal dominance of law schools and the legal profession, ACS was a response to a conservative ascendancy.
"There was a perceived imbalance and lack of symmetry in the profession and the law schools, and we thought it was a good idea to address that situation," Smith said.
Asked if ACS fashioned itself after the Federalist Society, Smith said, "Absolutely. We don't hide the ball. It's the model, and it has been enormously successful for them."
The Federalist Society template is a multifaceted one: The group is simultaneously a debating society, a platform for conservative and libertarian jurists, and a vehicle for young conservatives to network.
It is not, however, partisan. It does not take positions as a group on legislation or even nominations to the Supreme Court, although the sympathies of Federalist Society members on such issues are not difficult to discern.
Eugene B. Meyer, the president of the Federalist Society, welcomed the American Constitution Society to the fray but also issued a caution.
"If the ACS will be an organization on the left trying to encourage debate and discussion, I think that's a good thing," Meyer said. "But if they do it in a way to sling around political slogans, that doesn't do much for anybody."
Even its critics acknowledge that the Federalist Society is scrupulous about making sure that its panels include liberal lawyers, judges and scholars. ACLU President Nadine Strossen, a frequent speaker on Federalist panels, said in a testimonial on the society's Web site that in its commitment to freedom, the society "reminds me very much of another organization that's near and dear to me," referring to her own.
But the Federalist Society has been more than a debating society, and "political slogans" occasionally work their way into the oratory at society events.
Take the legendary speech at a Federalist Society event in 1992 by Judge Lawrence Silberman of the U.S. Circuit Court of Appeals for the District of Columbia Circuit. Silberman delighted the audience by saying that press coverage of the Supreme Court "accepted and embraced the tenets of judicial activism."
He particularly criticized The New York Times, saying that "it seems that the primary objective of The Times' legal reporters is to put activist heat on recently appointed Supreme Court justices." Silberman termed this the Greenhouse effect, a dig at New York Times Supreme Court reporter Linda Greenhouse.
Finally, the Federalist Society long has served as a talent pool for Republican administrations and conservative federal judges looking for law clerks, although Meyer said the organization's role as a job bank has been exaggerated.
"I think people by and large join the Federalist Society because they're interested in the ideas we're talking about," Meyer said. "In the course of doing that, they also -- as with any organization -- meet people with whom they share ideas and they're going to end up working together not only in the Federalist Society but in projects in other areas of life."
All three components of the Federalist formula -- public debate, preaching to the converted and networking -- were on view at this year's convention of the American Constitution Society.
Conservative speakers peppered convention panels. U.S. Solicitor General Paul D. Clement, the Bush administration's top courtroom lawyer, participated in a discussion entitled, "Can Federalism be Progressive?" and a well-attended session on "Secularism and Religion: the False Dichotomy?" The religion panel also included liberal legal icon Judge Stephen Reinhardt of the 9th U.S. Circuit Court of Appeals, which ruled that the phrase "under God" in the Pledge of Allegiance was unconstitutional, and attorney Sam Casey of the Christian Legal Society, which filed a friend-of-the-court brief in the Supreme Court defending the wording of the pledge.
But, as with Federalist Society meetings, mealtime speakers at the ACS convention served up red meat to nourish its members' predominant point of view. In a caustic luncheon address, Elaine Jones, the longtime president and counsel of the NAACP Legal Defense and Education Fund, ridiculed the notion that Roberts (whom she did not mention by name) belonged on the Supreme Court because of his sterling academic credentials or because the views he espoused as deputy solicitor general in the first Bush administration were his client's, and not his own.
"You can't claim you're advancing the client's view when the lawyer chooses the client, and did so precisely because of those views," Jones said to applause.
As for networking, the ACS convention offered a "career/networking fair" and a session at which four federal judges talked to students about clerkships. These gatherings were in addition to the opportunities law students had to break bread or make small talk with members of the judiciary -- an attractive aspect of Federalist Society programs, as well.
Some of the conversation at the convention focused on the controversy over whether John Roberts had been a member of the Federalist Society, and whether young members of ACS might jeopardize their future careers by joining its liberal counterpart.
Jill Roche, a delegate from the University of Pittsburgh Law School, said she wasn't deterred by any such possibility, saying she always will be proud of having belonged to ACS.
Paul Smith said students shouldn't have to worry about their affiliations with either organization coming back to haunt them.
"I thought it was ridiculous that people were going around trying to tell whether Roberts was or wasn't an official member or a dues-paying member of the Federalist Society," Smith said. "If somebody were nominated to the Supreme Court by President Bush, either they were a member of the Federalist Society or they certainly are going to have a philosophy or approach that is within the mainstream of that organization. Whether they are or they aren't a member doesn't tell you anything.
"It shouldn't become a badge of infamy to have belonged to one of these two very mainstream groups."
(Michael McGough can be reached at 1-202-662-7025 or [email protected])