Bench Memos

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The Administration, Ms. Miers, and the Federalist Society


I have, in several posts and comments (for example, here), criticized some of the criticisms of Ms. Miers’s nomination, and expressed my view that it is a mistake to assume too quickly that the President has failed to nominate — as promised — conservatives to the Court or to fetishize service on the federal courts. I have to confess, though, that the recent reports (for example: here and here) about Ms. Miers’s deprecating remarks about, and less-than-enthusiastic attitude toward, the Federalist Society are extremely frustrating. In my view, they also undercut the claim (which, again, I have made) that Ms. Miers is and should be regarded as, despite her lack of a paper trail or “movement” credentials, a conservative.

Putting aside, for the moment, Ms. Miers’s nomination, yoo often, this Administration, prominent nominees, and even Federalist Society members nominated for important positions in government have treated the Society as if it were something out of “The DaVinci Code”, or the ultra-secret gaggle of powerful reactionary Rasputins that some on the left imagine, or just a goofy band of train-spotters. In my view, this Administration and the conservative Senators, who owe the clear thinking and dedication to the rule of law of their best staffers, lawyers, and advisors in no small part to the Federalist Society, have an obligation to stop this silly “Federalist Society? Never heart of it!” pose, and forthrightly to endorse, defend, and praise the Society.

The Federalist Society has been — as many honest, left-leaning law professors would concede — an immense benefit to the intellectual culture and the jurisprudential debate in our law schools. It has supplied countless thoughtful, intelligent, conservative lawyers to the bench, the academy, the bar, and public service. It has provided an invaluable forum for a genuine exchange of ideas, and also some accountability for the American Bar Association and the American Association of Law Schools. Its events, debates, and panels are always diverse and provocative. In my view, few lawyers have done as much to promote thoughtful engagement with conservative and constitutionalist legal thinking as have, say, Eugene Meyer and Leonard Leo; few law professors have been as selfless in their work with students as, say, (Fed Soc members) Randy Barnett, Gerry Bradley, and Eugene Volokh.

Just as important, the Federalist Society has provided, in no small part, the intellectual heft for a large part of today’s conservative movement in politics. For an Administration that owes its existence to this movement to, time and again, treat the Society like a goofy yearbook photo or an embarasing secret is more than irritating — it is shameful. If the Federalist Society really were a politically useful but in fact weird and non-mainstream outfit, then perhaps the “Fed Soc? Who?” attitude would be understandable. But, if course, the Society and its ideas are — among informed and thinking people, anyway — entirely respectable and, while certainly conservative, entirely

If Ms. Miers really does harbor the tiresome, skittish, establishmentarian, protect-the-guild wariness toward the society described in the accounts mentioned above — rather than respect for its work, admiration for the vision of David McIntosh, Steve Calabresi, Spence Abraham, and others who founded the Society more than 20 years ago, and gratitude for the dedication of hundreds of law students today who often take real hits in order to stand up for and strengthen the Society and its intellectual mission — then I am inclined to
think that she has not earned (no matter what church she attends, no matter how good a person and impressive a lawyer she is, no matter how much she abhors abortion, no matter how loyal she is to this President, and no matter how Rehnquist-like her record turns out to be) conservatives’ support. I hope, though, that these reports are false, and that she and others will make clear that her past statements do not reflect her present views.

Many of my students have worked very hard and sacrificed time for the Federalist Society. In so doing, they have improved their law school and the education of their classmates. (It’s worth noting that left-leaning students benefit, too, from an exchange of views and from the competition and challenge that the Society provides). Having worked for, voted for, taken hits for, and defended this Administration and the legal and moral principles for which it purports to stand, these students deserve better than a nominee who appears to regard — again, if the accounts are accurate — them and their ideas as a source of irritation rather than a source of inspiration. (Of course, and to be fair, it could be–and given what I have heard about her, it seems likely–that even if Ms. Miers held misguided views about the Federalist Society more than a decade ago, she has learned enough in the meantime to put them aside. Still, the point remains: hard-working conservative law students deserve to be praised and endorsed by this administration, not snubbed or hidden away.

Here, by the way, is a great discussion of the Federalist Society “issue. And, I would also recommend Eugene Volokh’s essay from about four years ago on the same topic.


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