On the Federalist Society

[James Lindgren]

I have been reading all sorts of nonsense for years about the Federalist
Society, especially in the popular press.  Until 1996, I had attended only one
Federalist talk at a law school, where I vigorously took on the presenter.
Since 1996,  I have been both a main speaker and, rarely, the liberal
commentator (on end-of-life decisions and abortion).   I have even been the
main speaker taking a moderately liberal position (pro-affirmative action),
while my commentator was to my right on the issue.

I'd like to comment on some of the ideas floating around, not on the claims
made by people on this list.

Some of the sillier claims sometimes come from people on faculties with few
Federalists.   Audiences at Federalist Society events at schools with few
conservative faculty members tend to be more hostile and contentious,
suggesting the lack of political diversity and openness at those schools.
It's like the myths and prejudices about ethnic groups or religions that come
from not being around enough of a group to understand that people are people,
not devil worshippers.

I know at least moderately well 4 of the original founders of Yale's chapter of
the Federalist Society (all of whom are law teachers, 2 of whom are still very
active in the Society).  Three of the 4 favor affirmative action--and act on
that policy.

The line in some of the press is that the Federalist Society is vast and
extreme.
In America, you can't be both.  Either you are vast or you are extreme (or you
are neither).

Anyone who goes to Federalist Society events on campus knows that most are
politically balanced in a way that NO other important student group matches.
Overall, the Law Women's Association and BALSA don't come close.  It is because
the Federalists are a big tent that they are successful.

They usually (but not always) act toward liberals in the way they wish the rest
of the law school world would act toward them.  Indeed, if the law schools had
been as decent and respectful and as balanced toward them as they are to the
other side, the organization never would have been formed.  This is not just
rhetoric.  While the success of openness as a tactic is obvious, the spirit of
being fair to the other side is also intended to teach others in the law school
world how to treat those with whom you disagree.

The Federalists have also succeeded because they occupy the entire right half
of the political spectrum.  The heads of the student chapters and most of the
heads of the organization are probably quite conservative or libertarian, but
the members are not.   If you have middle of the road politics and are
intellectually curious and you are on a law school campus, where can you go?
At many schools, the Federalist Society does more serious intellectual
programming than all other groups put together, sometimes rivaling faculty
workshop programs.  The Federalist Society has succeeded because it is
precisely NOT WHAT ITS CRITICS SAY IT IS.  Of course, there have undoubtedly
been individuals and chapters who have treated opposing viewpoints with as
little respect as the Federalists sometimes get, but from what I've seen, the
Federalists are more generous to those they disagree with than are their
critics.

I have been to several Federalist conferences where liberals outnumbered
conservatives substantially on particular panels--and several where the
liberals blew away the conservatives in argumentation.  When has the reverse
ever happened at a SALT conference?  I asked a co-chair of SALT once why they
rarely had any political balance on their programs, unlike the Federalists.
The answer was because conservatives don't need additional platforms to speak.
It seems that SALT was the organization thinking in careerist terms.  The
Federalists don't have mostly balanced programming to help liberal's careers
but because they feel that everyone will learn from hearing both sides.   And
they do learn.  It is not just for show.

If groups on the left get together to plot strategy, it's in the public
interest.  If groups on the right get together to plot strategy, it's a
conspiracy.

When I hear that most judges or staffers now being appointed are Federalists,
it means no more than saying that they are Republican lawyers.  How many
younger female judges appointed by Clinton were members of the Law Women's
Association in law school?  How many African-American judges appointed by
Clinton were members of BALSA or the NAACP?  Are these groups vast and
extreme?  Of course not.  Do the views of most of their members match the views
of the general public?--sometimes yes, sometimes no.  Certainly, these
organizations have less balanced programming than the Federalist Society.
Like the Federalist Society, they are vast and not extreme.  They have had less
influence in law schools recently because the Federalist Society is better run
than other national student organizations and usually does more balanced
programming than the competition.

Last fall I volunteered to write up some data rating presidents that the
Federalist Society had collected in conjunction with the Wall Street Journal.
The idea was classic Federalist Society thinking.  Why not survey about equal
numbers of liberals and conservatives, instead of 90% or so liberals as most
prior studies had done?  They got an elite balanced panel to pick the
respondents, and they ended up with probably slightly more liberals than
conservatives.  The ratings for Democratic presidents were insignificantly
higher than for Republican presidents.  The Federalist Society was not looking
for a cooked result, just a politically balanced one.  Rating presidents is not
fancy scholarship, but it is a good thing for a politically savvy, open-minded
public policy organization such as the Federalist Society to do.

I joined the Federalist Society last year, though I haven't yet paid this
year's dues.  I struggled with the choice a bit because I don't agree with some
of their positions, but they are the pre-eminent force for political and
viewpoint diversity in American law schools today.  That's the main reason I
joined.

When the attacks get particularly silly, the person attacking the Federalists
is unconsciously making the argument for their continued presence in American
law schools.  And if the person making the attack is at a law school with fewer
than a quarter conservatives, I think the person should worry more about the
possibility that their students are being exposed to too few common viewpoints
to understand the world they will live and work in or to understand why
big-tent organizations like the Federalist Society succeed.   At schools with
political diversity on the faculty, the Federalist Society is not usually a
controversial organization.

Jim Lindgren
Northwestern


David Bernstein wrote:

> For what it's worth, contrary to the implications of the letter, all of the
> members of the Federalist Society when I was at Yale were conservative or
> libertarian (plus a liberal or two who enjoyed a good debate). I didn't meet
> anyone that could be considered a careerist who joined just to get  a good
> clerkship or what not.  Quite the opposite, I knew several conservatives and
> especially libertarians who declined to join because they feared "social
> death."  While urban legends have circulated about people who join the
> Society for career reasons while being secret liberals, I have not yet seen
> any such actual person identified, and, if there are such people, their
> numbers are dwarfed by students who avoid the Fed. Soc. so as not to be
> ostracized by members of the dominant left-liberal  group.  Moreover, word
> around campus was to leave Fed. Soc. off your resume so firms wouldn't
> discriminate against you (discrimination by individual attorneys, not firm
> policy).
>
> David Bernstein