On the Federalist Society
7barksda at JMLS.EDU
Fri Apr 27 19:30:09 PDT 2001
I think the concern with the Federalist Society is not with its role as a
discussion forum, nor with the fact that some of its members have a
political agenda. Rather, I think there is a perception, whether valid or
not, that the means that some members (let's call it the radical fringe) are
willing to use to accomplish their agenda may be less than democratic. For
example, there is the story of the three Federalist Society members who are
alleged to have engineered the perjury trap that Clinton fell into. Of
course, Clinton's vulnerability to this trap is inexcusable, but
nevertheless, many might think that plotting to depose (bad [unintended]
pun) a sitting President is not an appropriate method of achieving policy
goals. Similarly, with reports of the unusually cozy relationship between
the Bush campaign defense team and the Federalist Society (Olson, Scalia and
Thomas, plus relatives) with the resulting perception by many that the
remarkable Bush/Gore decision was essentially a Federalist coup. Similarly,
the reports that conservative organizations sought to purge African-American
voters from the voting rolls in Florida by the use in African American
precincts of grossly overbroad anti-felon computer software.
Now on top of this, come reports that this now newly installed
administration, is not only hiring large numbers of Federalists, and will
likely install many others on the bench, but has regular strategy sessions
with them and other conservative interest groups for the purpose of
strategizing about advancing a this conservative agenda, (which, rightly or
wrongly, to many women, people of color, environmentalists, is simply a
result-oriented defense of the status quo distribution of power to rich,
white, corporate males.
Many, I think, are thus concerned that the administration is not simply
listening to an ideological constituency, but handing them disproportionate
power, to the exclusion of other voices. It's this perception, I think, that
fuels the fear that there is a cabal afoot, as opposed to simply the
ordinary shifting of the power center after an election. (For example, how
much voice do the so-called moderates have in the "I ran as a centrist Bush"
administration - witness the way they continue to hang Christie Whitman out
The Federalist Society is a convenient focus for this angst.
> From: James Lindgren[SMTP:jlindgren at WORLDNET.ATT.NET]
> Reply To: Discussion list for con law professors
> Sent: Tuesday, April 24, 2001 2:12 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: On the Federalist Society
> 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
> 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
> main speaker taking a moderately liberal position (pro-affirmative
> 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
> made by people on this list.
> Some of the sillier claims sometimes come from people on faculties with
> 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
> from not being around enough of a group to understand that people are
> 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
> active in the Society). Three of the 4 favor affirmative action--and act
> that policy.
> The line in some of the press is that the Federalist Society is vast and
> In America, you can't be both. Either you are vast or you are extreme (or
> 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
> Overall, the Law Women's Association and BALSA don't come close. It is
> the Federalists are a big tent that they are successful.
> They usually (but not always) act toward liberals in the way they wish the
> of the law school world would act toward them. Indeed, if the law schools
> been as decent and respectful and as balanced toward them as they are to
> other side, the organization never would have been formed. This is not
> 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
> world how to treat those with whom you disagree.
> The Federalists have also succeeded because they occupy the entire right
> of the political spectrum. The heads of the student chapters and most of
> heads of the organization are probably quite conservative or libertarian,
> 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
> 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
> been individuals and chapters who have treated opposing viewpoints with as
> little respect as the Federalists sometimes get, but from what I've seen,
> Federalists are more generous to those they disagree with than are their
> 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
> ever happened at a SALT conference? I asked a co-chair of SALT once why
> rarely had any political balance on their programs, unlike the
> The answer was because conservatives don't need additional platforms to
> It seems that SALT was the organization thinking in careerist terms. The
> Federalists don't have mostly balanced programming to help liberal's
> but because they feel that everyone will learn from hearing both sides.
> 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
> When I hear that most judges or staffers now being appointed are
> 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
> 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
> influence in law schools recently because the Federalist Society is better
> 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
> The idea was classic Federalist Society thinking. Why not survey about
> numbers of liberals and conservatives, instead of 90% or so liberals as
> 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
> 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,
> 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
> 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
> When the attacks get particularly silly, the person attacking the
> is unconsciously making the argument for their continued presence in
> law schools. And if the person making the attack is at a law school with
> than a quarter conservatives, I think the person should worry more about
> possibility that their students are being exposed to too few common
> to understand the world they will live and work in or to understand why
> big-tent organizations like the Federalist Society succeed. At schools
> political diversity on the faculty, the Federalist Society is not usually
> controversial organization.
> Jim Lindgren
> David Bernstein wrote:
> > For what it's worth, contrary to the implications of the letter, all of
> > members of the Federalist Society when I was at Yale were conservative
> > libertarian (plus a liberal or two who enjoyed a good debate). I didn't
> > anyone that could be considered a careerist who joined just to get a
> > clerkship or what not. Quite the opposite, I knew several conservatives
> > 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
> > 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,
> > around campus was to leave Fed. Soc. off your resume so firms wouldn't
> > discriminate against you (discrimination by individual attorneys, not
> > policy).
> > David Bernstein
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