Saturday, January 01, 2005

Debating the Subtle Sway of the Federalist Society - NYT 2005

Debating the Subtle Sway of the Federalist Society
Published: August 1, 2005

WASHINGTON, July 31 - "I am a member of the Federalist Society, and I do not know, quite frankly, what it stands for."

The transcript does not say whether people in the Senate hearing room responded with disbelief. But that is how one person headed for a top job in the Justice Department, Viet D. Dinh, described his relationship with the society, a conservative legal group whose influence is the source of ever-swelling myth, mystery, insinuation, denial and debate.

In a new Washington ritual, President Bush has repeatedly drawn from the Federalist Society for cabinet members, senior aides and judges. And perhaps to deflect what many conservatives call unfair attacks by liberals, the nominees have repeatedly claimed to know little about the group's beliefs.

White House aides have worked hard to put distance between the society and John G. Roberts, the federal appeals judge Mr. Bush has nominated for the Supreme Court. They have even demanded corrections from newspapers that identified him as a member.

Then an old directory surfaced last week, listing Judge Roberts as part of one of the group's steering committees. The White House spokesmen clung to their line; since Judge Roberts had not, apparently, written a $25 membership check, he was not a formal member.

Who cares? Lots of people, it seems, because a fight over the influence of the Federalist Society is a proxy in the war over the federal judiciary and the Constitution itself.

Remarkable in its growth and reach, the society was founded in 1982 by law students unhappy with what they saw as liberal dominance in law school faculties and the courts. It now claims 35,000 participants (some paying dues and some not) and has chapters in virtually every law school and in 60 cities. Part of the society's influence stems from its sponsorship of public debates, which hone and promote conservative points of view.

But much of the influence, and most of the intrigue, flows from an informal social network, which members use to advance one another's causes and careers. Openly and behind the scenes, members have played prominent roles in the most pitched political battles in recent years, including the impeachment of President Bill Clinton and the Florida recount fracas in 2000 that led to the election of Mr. Bush.

The society takes few official positions. But to some liberal critics, the activism of its members conjures all they fear about the legal right, from the defense of states' rights and business interests to attacks on affirmative action, gay rights and abortion. One liberal blog,, called the group "the conservative cabal that is attacking America from within."
Ralph G. Neas, president of People for the American Way, a liberal advocacy group, did not go that far in an interview last week. But he pointed to the society as a link between Judge Roberts and two Supreme Court justices many on the left abhor, Antonin Scalia and Clarence Thomas. Justice Scalia was a faculty adviser to the society, and Justice Thomas has praised its work and spoken at its events.

"Just because someone belongs to the Federalist Society does not inherently disqualify them," Mr. Neas said. "But it certainly raises a lot of questions about whether that individual adheres to the judicial philosophy of Clarence Thomas and Antonin Scalia," who are not "mainstream conservatives," he said.

Leaders of the group cry foul. Steven G. Calabresi, a law professor at Northwestern University who helped found the group as a law student at Yale and is now chairman of its board, evoked the question Senator Joseph McCarthy used a half-century ago in hunting Communists: "There's been an element of 'Are you now or have you ever been a member of the Federalist Society?' "

"It's worse than McCarthyism, because at least McCarthy was going after people who advocated a total dictatorship," he said. "We don't even hold a unified set of views."

Although the group endorses a few broad principles like the separation of powers and a faithful adherence to Constitutional text, Mr. Calabresi said there was much disagreement on particulars. "The Federalist Society is a debate club," he said.

The blurred lines between the group's official debate-club role and the private activities of many of its members were on display last week as the group's longtime president, Eugene B. Meyer, dismissed as "silly" accusations that the society was exercising secret influence. "That's just not how we operate," he said.

Mr. Meyer said outside observers often failed to recognized the idealism that attracted members. "I don't mean to sound too goody-two-shoes about this, but it's an interest in good government and how people can do the best for the society," he said.

Recalling a trip through rural Mexico, Mr. Meyer spoke of the "Stone Age" living conditions there as an example of how people suffer "when they haven't had the rule of law."

Yet down the hall from Mr. Meyer's office, a vacated desk testified to the more activist role that members often play. It belonged to Leonard A. Leo, the executive vice president, who doubles as the head of Catholic outreach for the Republican Party and who has taken a leave of absence to help Judge Roberts win confirmation.

As he argued that the society's influence flowed from its intellectual work - "I sound a little like a broken record, but what I'm excited about are the ideas"- Mr. Meyer also said he had benefited from news media training by Creative Response Concepts. That is the public relations firm that represented Swift Boat Veterans for Truth, the group whose advertisements in last year's presidential campaign attacked the war record of Senator John Kerry, the Democratic nominee.

The Federalist Society hired the firm, Mr. Meyer said, to train members and place them on television shows during the confirmation process. He said the goal was to educate the public on the role of judges and courts. "Given the general philosophical outlook, the chances are very good that they'll support the nominee," Mr. Meyer said. "But that's not the purpose."

In the early days of the Bush presidency, administration officials said about a quarter of their judicial nominees were recommended by the Washington headquarters of the society. Mr. Meyer said the advice came from staff members speaking in their private capacities, not as official representatives.

With an annual budget of $5.5 million, the society has benefited from decades of support from prominent conservative organizations, including the John M. Olin, Sarah Scaife, and Lynde and Harry Bradley Foundations.

In the 1990's, three Federalist Society lawyers, Jerome M. Marcus, Richard W. Porter and George T. Conway, played important but covert roles in helping Paula Corbin Jones sue President Clinton for sexual harassment. They also worked behind the scenes to disclose Mr. Clinton's affair with a White House intern, Monica Lewinsky.

Kenneth W. Starr, the independent counsel whose report led to Mr. Clinton's impeachment, is a prominent member of the society, as is Theodore B. Olson, who successfully argued Bush v. Gore, the case that stopped the Florida recount in 2000 and ensured Mr. Bush's election.

According to the Senate Judiciary Committee, 15 of the 41 appeals court judges confirmed under Mr. Bush have identified themselves as members of the group. Complaining that the society serves as "the secret handshake" of Mr. Bush's judicial nominees, Senator Richard J. Durbin, an Illinois Democrat on the committee, has repeatedly questioned them about the group's mission statement. Their answers, he said, have "ranged from the amusing to the preposterous."

Carolyn Kuhl, who later withdrew her stalled bid for an appeals court seat, wrote, "I did not participate in writing the mission statement."

"Therefore I am unable to opine," she said.

Jeffrey S. Sutton, who won a seat on the United States Court of Appeals for the Sixth Circuit, said, "I have no idea what their philosophy is."

Mr. Dinh, who left his Justice Department position in 2003 and now teaches law at Georgetown, said he answered candidly at his confirmation hearing. "I did not know, and still do not know, what the society stands for because it has no stated philosophy other than the exchange of ideas," he said. "There's no evasion in that. It's just as straightforward as it gets."

Mr. Durbin's questions did bring sharp words from one society member. "I am on the board of advisers of the Federalist Society, and I am darn proud of it," said Senator Orrin G. Hatch, a Utah Republican on the Judiciary Committee. Mr. Hatch called the society a group of lawyers "who are just sick and tired of the leftward leanings of our government."

Among those with a complex view of the group is Guido Calabresi, a federal appeals court judge and an uncle of Steven Calabresi. Judge Calabresi, a former dean of Yale Law School, was appointed by President Clinton, and his academic views are to the left of his nephew's.

"The Federalist Society was, when it got started, a wonderful idea," Judge Calabresi said, and it has made "a lot of conservative thought seem as respectable and attractive as it is." But he worries that its career-advancement role invites distrust and promotes conformity.

"It becomes something of a secret society," he said. "The conversation becomes a conversation among people who already know what they're going to say."

Anticipating the criticism, Steven Calabresi fired off a pre-emptive e-mail message to a reporter, arguing that the same could be said of elite law schools like Yale.

Unlike many arguments about the Federalist Society, though, this one promises to end amicably: the two Calabresis, close friends and mutual admirers, will soon be off for a shared vacation.

What the Federalist Society Stands For - Washington Post 2005

What the Federalist Society Stands For
Group Is Haven for Conservative Thought
By Michael A. Fletcher
Washington Post Staff Writer Friday, July 29, 2005; Page A21

After President Bush tapped John G. Roberts Jr. for the Supreme Court, the nominee was widely reported to be a member of the Federalist Society -- an assertion that White House officials vigorously disputed.

When it was later disclosed that Roberts was once listed as serving on the steering committee of the group's Washington chapter, Bush aides continued to insist that Roberts has no recollection of ever being a full-fledged member of the conservative legal group.

The eagerness of the White House to distance Roberts from the Federalist Society baffled many conservatives. They believe the reaction fed a false perception that membership in the organization -- an important pillar of the conservative legal movement -- was something nefarious that would damage Roberts's chances of confirmation.

"Are you now or have you ever been a member of the Federalist Society?" asked Roger Pilon, a vice president at the libertarian Cato Institute, mocking the suspicion that swirls around the group. "The Republicans and the White House in particular should take this issue on head-on. What are we talking about here? The Communist Party? The Ku Klux Klan? This is an organization of conservative and libertarian law students, lawyers and legal scholars."

Launched 23 years ago by a group of conservative students who felt embattled by liberals on the campuses of some of the nation's most elite law schools, the Federalist Society for Law and Public Policy Studies has grown into one of the nation's most influential legal organizations. The group claims more than 35,000 members, an increasing number of whom work in the highest councils of the federal government. Many Justice Department lawyers, White House attorneys, Supreme Court clerks and judges are affiliated with the group. Supreme Court Justice Antonin Scalia was a close adviser to the organization while he was a University of Chicago law professor.

Not only has the Federalist Society become a source of legal talent for Republican administrations, but through its frequent on-campus seminars and forums for practicing lawyers, the group is also credited with popularizing methods of legal analysis now widely advocated by many conservatives and employed by an increasing number of judges. Theories such as originalism, which holds that the Constitution has a fixed and knowable meaning rather than an evolving meaning that should adapt to contemporary times, is an idea put forward by many Federalist members. Using that standard, some judges have challenged previous court rulings allowing broad federal control over states on regulatory and civil rights issues, and maintaining the legal wall separating church and state.

"I think the Federalist Society and some other conservative organizations have played a really important role in changing the terms of legal and, ultimately, political debate in the United States," said Peter J. Rubin, a Georgetown University law professor and founder of the American Constitution Society, which aims to do for liberals and centrists what the Federalist Society has done for conservatives and libertarians.

The growing influence of the Federalist Society has coincided with the rise of a network of conservative research organizations and public interest law firms that together have challenged hot-button issues such as affirmative action and prohibitions against publicly funded school vouchers.

"I think there is some concern about what the ideology of the Federalist Society is," Rubin said. "I think there is some sensitivity that this is considered the hard core of the extreme right."
The idea that the Federalist Society would one day play a central role in the national legal debate, or that membership in the organization would be a point of contention for a Supreme Court nominee, seemed far-fetched when the group was formed by a law students in the early 1980s.

Northwestern University law professor Steven G. Calabresi, chairman and a founder of the group, said he started the organization after determining that he was one of few conservatives during his student days at Yale Law School. He said that notion crystallized after the 1980 election of Ronald Reagan when a professor asked a class of 90 who had voted for the new president. "I and one other person raised our hands," Calabresi said.

Calabresi envisioned the organization as a vehicle for bringing conservative and libertarian legal thinkers to campus to share their ideas and counteract what he saw as a liberal bias. The idea spread to other schools, notably the University of Chicago, and now there are chapters at the vast majority of the nation's 191 law schools.

Through the years, the Federalist Society, which has a $5 million budget, has also received substantial financial backing from a network of foundations that has supported a diverse menu of conservative causes, including promoting school vouchers and investigating the personal life of former president Bill Clinton. These include the John M. Olin and Charles G. Koch foundations. Conservative activist Richard Mellon Scaife is also a major benefactor.

At the same time, the society's provocative legal forums and commitment to discussing legal principles have attracted sizable donations from companies such as Verizon, Microsoft and DaimlerChrysler. "From the beginning, my concern and the organization's concern has been about the ideas," said Eugene B. Meyer, the group's president. "We try to focus on constitutional principles, getting ideas heard and discussed."

For all its influence, Federalist Society supporters -- who include a handful of liberals -- point out that the organization does not litigate cases or lobby the government, even as it has been closely identified with conservative politics. Nor does it explicitly support a particular policy agenda beyond its ideas for limiting the power of government and emphasizing that the courts should "say what the law is, not what it should be."

"The Federalist Society has become kind of mythologized," said Nadine Strossen, president of the American Civil Liberties Union, who often speaks at the group's events. "For those who don't really know what they do, the ACLU can be shorthand for the liberal agenda and the Federalist Society can be shorthand for the conservative legal agenda."

Where Conservatives Debate the Law - Baltimore Sun, 2005

Where conservatives debate the law
Federalist Society mined for clues to thoughts of Bush pick for high court

A lot of speculation has gone into a simple matter of fact: Has Judge John G. Roberts Jr., the president's nominee to the Supreme Court, been a member of the Federalist Society?

The society won't say for sure, citing privacy concerns, but this much is clear: Roberts, a federal appellate judge, has spoken to the group and, in the late 1990s, was part of a steering committee for its Washington chapter while working at a prestigious D.C. law firm. Whether he has paid his $50-a-year dues might be beside the point.

Why does anyone care? What do Roberts' opponents think they can read into his association with the society, and why does the White House seem to be distancing its nominee from an influential group that counts its membership in the tens of thousands?

"It's a perfectly legitimate activity, but it's an activity that people understandably are curious" about, said Michael Gerhardt, a law professor at the University of North Carolina.

The Federalist Society is alternately described as a fraternity of like-minded conservatives who get together to think big thoughts about the Constitution and an evil cabal out to turn the judicial system on its head. The truth about the organization, which counts among its founding advisers Justice Antonin Scalia, and is led by former federal Judge Robert H. Bork and Republican Sen. Orrin G. Hatch of Utah, lies in between.

"It's an awfully big tent," said member Ronald D. Rotunda, a law professor at George Mason University. "If there's a secret handshake, they never told me."

Society's history

The society was founded in 1982 by Steven G. Calabresi and three friends who were students at top law schools that he called "monolithically on the left." Of the dozens of faculty members at Yale Law School, where he was enrolled, Calabresi said just two were conservative and both had just been appointed to judgeships by President Ronald Reagan.

"We wanted to encourage a discussion of right-of-center ideas," Calabresi, now a law professor at Northwestern University and national co-chairman of the society, said this week.

He's astonished at what his "extracurricular activity and hobby" has become. It now comprises 35,000 lawyers, law students, academics and others who have participated in
its events, seminars and conventions. It has lawyers groups in many cities and student groups at most of the nation's law schools.

"The Society's main purpose," according to its Web site, "is to sponsor fair, serious and open debate about the need to enhance individual freedom and the role of the courts in saying what the law is rather than what they wish it to be."

The society doesn't lobby. It produces papers on various aspects of the law - from environmental law to that on intellectual property - but they are only to be considered think pieces, not the position of the society as a whole, said its president, Eugene B. Meyer.

Each November, the lawyers branch holds a convention in Washington - this year's topic will be constitutional interpretation - and about 1,000 attend to hear debate on subjects such as "The Emergence of a New Civil Rights Agenda" and to socialize with other conservatives. In February or March, the law students have their convention - held at a different law school each year.

Having the Federalist Society on a law student's resume may be an indication of conservative leanings - as membership in the American Civil Liberties Union often signifies the opposite - and can be instrumental in obtaining clerkships with conservative judges, law professors said.

The society has been so masterful at bringing together parts of the conservative movement that a group of liberal lawyers has attempted to imitate it.

The Federalist Society doesn't just count conservatives among its speakers, though. Liberal foils are often invited to stimulate debate.

With little to go on about Roberts' views as he gears up for confirmation hearings before the Senate this summer, court watchers are trying to glean what hints they can. The Federalist Society, they say, offers a glimpse at his connections.

"The Federalist Society is a location where conservative legal thinkers get together to talk about their ideas, and the reason people are interested is that John Roberts has a relatively thin public record and people are trying to figure out what his core beliefs are," said Mark Tushnet, a professor at Georgetown University Law Center. "Association with the Federalist Society is one indication that those core beliefs are likely to be one version of conservatism.

"There are varieties of conservatism, and they're all pretty much represented in the Federalist Society," Tushnet said. "So the fact that he's a member or associated with it doesn't tell you a whole lot."

News outlets reported his membership in the days following his nomination to the court. The White House quickly obtained printed corrections. Over the weekend, a liberal group
started providing reporters with a copy of a directory of the group's steering committee from 1997-1998 that listed Roberts' name and phone number. White House press secretary Scott McClellan told reporters that Roberts doesn't remember "joining or paying dues" to the society.

Opposing views

In some liberal corners, the Federalist Society is viewed with suspicion. Alfred Ross, a lawyer who runs the Institute for Democracy Studies, a think tank in New York, says the society is "far outside the mainstream" and tries to push a Bush agenda of giving more power to the states. He said Roberts is being coy because he doesn't want attention brought to the group's leanings.

"Sunlight hurts if you're trying to keep things in the dark," Ross said.

Shannen W. Coffin, a Federalist Society member and former Justice Department official, said he doesn't understand why an association with the group is being portrayed as a right-wing stain that should taint Roberts' credentials.

He said that in the past, members of the Senate Judiciary Committee have asked nominees to the federal bench and other high-level positions about their membership in the group almost as if they were asking about membership in the Communist Party.

"If they can't see the parallel to McCarthyism, it's self-evident, except the Federalist Society is something we should be aspiring to rather than running away from," Coffin said.

Gerhardt, who worked as an unpaid adviser to President Bill Clinton, said Roberts "is likely to sail through" the confirmation process.

Still, he said, an association with the society does say something about Roberts. "It is likely to say, 'This is a conservative and not just any kind of conservative - someone with proven conservative commitments.

"Signing a brief at the Justice Department is one thing. Voluntarily joining the Federalist Society is another."

Group Becoming Must for Some Conservatives - AP 2005

Group Becoming Must for Some Conservatives
Monday July 18, 2005 7:31 AM
Associated Press Writer

WASHINGTON (AP) - At a recent Friday luncheon, former Solicitor General Theodore Olson cast his eyes over a hotel ballroom crammed with lawyers and wryly welcomed ``all of you Federalists who seem to have mastered the secret handshake.''

``For those of you who just stumbled in off the street, it is my duty to advise you that you have stumbled into a right-wing cabal - you will never be the same again,'' the government's one-time chief courtroom lawyer deadpanned as chortles erupted from members of the Federalist Society.

The conservative group - which has no secret handshake and opens its forums to anyone - has plenty to be smiling about these days.

Founded by three law students in 1982 as a debating society, it now boasts a membership of more than 25,000 that includes prominent members of the Bush administration, the federal judiciary and Congress. Supreme Court justices, Cabinet members and other top Bush aides take regular turns at the society's podium.

Chances are good that the next Supreme Court justice will be either a member of the society or someone who has addressed the group.

Olson himself has been mentioned as a potential nominee. Newly confirmed appellate Judge Janice Rogers Brown, also mentioned as a possible future justice, was among those in the luncheon audience recently.

Others on President Bush's reputed short list include Federalist Society members John Roberts and Michael McConnell, both appellate court justices. Still others on the list have addressed the group, including appellate Judges J. Harvie Wilkinson, Emilio Garza, Edith Hollan Jones and Samuel Alito, and Attorney General Alberto Gonzales.

While the society has no formal role in consulting with the White House, ``the reality is, given the presence of Federalist Society members within the White House counsel's office and the Bush administration, they are playing a crucial role in selecting judges and likely justices,'' said Erwin Chemerinsky, a liberal Duke University law professor who has addressed the group.
Georgetown University law professor Mark Tushnet wrote in his book, ``A Court Divided,'' that Federalist Society conferences serve as ``something like the out-of-town preview of a Broadway show, where ambitious conservative lawyers strut their stuff.''

``Appearing at Federalist Society events is one, perhaps the most important, of the ways in which a person who wants to get known as 'reliable' and promotable makes sure that his/her name gets put on 'the list','' Tushnet said in an interview.

Northwestern University law professor Steven Calabresi, a Federalist founder, said the organization has grown ``beyond our wildest dreams. We really started it as a hobby and for fun, to add to the debate and discussion on campus.'' Law schools, he said, are largely Democratic in their orientation, so the Federalist Society took off as a countervailing forum for conservative ideas and networking.

``It really is kind of the hobby and extracurricular activity that took over my life.'' he said.
Not everyone views the organization in such an innocuous light.

The Institute for Democracy Studies, which says it examines ``anti-democratic religious and political movements and organizations,'' calls the society part of ``the infrastructure underlying the right-wing assault on the democratic foundations of our legal system.''

The Federalist Society does no lobbying and takes no positions on public policies, but its sphere of influence is broader than mere debate. Its 15 ``practice groups'' bring lawyers together to develop strategy for litigators on issues such as civil rights, religious liberty and national security.

The society keeps a watchful eye on the American Bar Association with its monthly ``ABA Watch.''

Sen. Dick Durbin, D-Ill., frequently quizzes Bush's judicial nominees in the Judiciary Committee about their ties to the society. He has expressed concern that the group may have some sort of informal filtering role in the selection of judicial nominees.

``As we try to monitor the legal DNA of President Bush's nominees, we find repeatedly the Federalist Society chromosome,'' Durbin said at a 2003 hearing. ``Why is it that membership in the Federalist Society has become the secret handshake of the Bush nominees for the federal court?''

As often as Durbin raises such concerns, they are quickly batted down by Republican Sen. Orrin Hatch of Utah, who says he's ``darn proud'' to serve as co-chairman of the society's Board of Visitors.

``These aren't just conservatives. These are top-notch lawyers all over this country, top-notch law students who are just sick and tired of the leftward leanings of our government, and, frankly, wanted to bring some balance,'' Hatch countered at one hearing. He added that the organization regularly invites prominent liberals to speak at its forums and debates.

It is a mark of the society's success that liberals have set out to duplicate the formula, founding the American Constitution Society five years ago as a kind of counterweight. Many liberals speak enviously of their competition on the right.

``They've been remarkably successful in bringing together various parts of the conservative movement,'' said Duke's Chemerinsky. ``I only want the left to have its own Federalist Society.''