Blowing The Federalist Society Question

Today’s Washington Post reviews the issue of the possible membership of John Roberts in the Federalist Society and what it could mean for his Supreme Court Nomination. Mostly, however, Michael Fletcher attempts to explain what the Federalist Society is to a nation whose only knowledge of the group paints it as a murky, subversive, and secretive cabal — an image the White House inadvertently underscored in the days after announcing Roberts’ nomination:

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.

In one of the more prosaic examples of truth in advertising, the Federalist Society advocates a return to the Federalist model of government. That model empahsizes local and state control over public policy and funds, giving more freedom to Americans to shape the way government affects their lives. It also espouses a literal reading of the Constitution, which puts the responsibility for creating laws and policy on the Legislature — the branch representing the people — where it belongs. As one member says in the article, Federalists want courts to rule on the basis of what the law says, and not what they want the law to be.
So what’s so subversive about this? Not much, even if Fletcher goes out of his way to include the Left’s favorite bogeyman, Richard Mellon Scaife, in his article. That begs the question as to why the White House distanced Roberts from the Federalists at Warp Eight early after the announcement:

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.

Put simply, the White House reaction was a mistake. It added to the notion that membership in the Federalist Society should concern American voters. Even if Roberts didn’t belong, the next nominees to the bench might, and then the White House will have left the Democrats a handy, catchy-sounding club with which to rhetorically beat them. It would have reflected so much better on the Bush administration had they insisted that Federalist Society membership represented a long and honorable school of thought in American legal circles, one that had far too little representation until like-minded legal scholars formed the group in the 1980s.
Instead, as Pilon notes, their reaction gives the Federalists the same kind of emotional reaction that one gives the Masons or the Communists. That is a big mistake, and one which the Bush administration will regret not just with Roberts but with all of their succeeding judicial nominations.