As the U.S. Senate prepares to hold confirmation hearings on President Bush’s first Supreme Court nominee, some liberals have fixated on whether John Roberts was a member of the Federalist Society — a group of lawyers, professors and law students once described by the Washington Monthly as “the conservative cabal that is transforming American law.”
The White House has denied Roberts was a dues-paying Federalist, and the nominee himself told the Senate he doesn’t recall serving on a Federalist Society steering committee that listed him as a member. A New York Times editorial nevertheless advised the Senate to probe whether the administration tried to deceive the public about a Roberts-Federalist connection, saying his nomination “should not be a matter for discussion only among the members of cloistered clubs who know the secret handshake.”
But even as some critics of the Roberts nomination portray the Federalist Society as a cross between a Masonic order and a right-wing version of the Trilateral Commission (a group of establishment leaders that some conspiracy theorists believe secretly controls the world), other liberals have taken a page from the Federalist playbook.
A few days after the Times’ “secret handshake” editorial, self-labeled “progressive” lawyers, law students and academics gathered at the Hyatt Regency Hotel on Capitol Hill for the third national convention of the American Constitution Society for Law and Policy, a group founded by Peter J. Rubin, a Georgetown University law professor.
Like Federalist Society gatherings, the ACS meeting held from July 28-31 combined activism and academics. Panel discussions on sentencing guidelines, immigration policy and election law were punctuated by crowd-pleasing speeches from liberal luminaries, including Sen. Joe Biden, D-Del., and Harvard law professor Laurence H. Tribe, both of whom said senators must question Roberts closely about his constitutional views.
ACS Executive Director Lisa Brown, who was counsel to Vice President Al Gore during the Clinton administration, acknowledged that the Federalist Society served as a model for her group.
“One of the reasons we grew so quickly is that the Federalist Society existed and was a model that law students understood,” Brown said. “So the chapters just jumped up.
“No one understood the power of the model (the Federalists) were creating until relatively recently,” she continued, “and I think all of a sudden people woke up and said, ‘Wait a minute! How could we be asleep at the switch for so long?’ ”
The wake-up call for liberal lawyers and law students was the Supreme Court decision in Bush v. Gore that effectively awarded the presidency to George W. Bush after the 2000 election. “It made people realize how politicized a lot of the courts had become,” Brown said.
Paul M. Smith, a Washington lawyer who serves on the ACS board of directors, carries as much legal star power as any fixture of the Federalist Society. Smith argued successfully for gay-rights groups in the 2003 Lawrence v. Texas decision in which the Supreme Court struck down a Texas law banning same-sex sodomy.
Smith agreed that just as the Federalist Society was formed in 1982 to counter a perceived liberal dominance of law schools and the legal profession, ACS was a response to a conservative ascendancy.
“There was a perceived imbalance and lack of symmetry in the profession and the law schools, and we thought it was a good idea to address that situation,” Smith said.
Asked if ACS fashioned itself after the Federalist Society, Smith said, “Absolutely. We don’t hide the ball. It’s the model, and it has been enormously successful for them.”
The Federalist Society template is a multifaceted one: The group is simultaneously a debating society, a platform for conservative and libertarian jurists, and a vehicle for young conservatives to network.
It is not, however, partisan. It does not take positions as a group on legislation or even nominations to the Supreme Court, although the sympathies of Federalist Society members on such issues are not difficult to discern.
Eugene B. Meyer, the president of the Federalist Society, welcomed the American Constitution Society to the fray but also issued a caution.
“If the ACS will be an organization on the left trying to encourage debate and discussion, I think that’s a good thing,” Meyer said. “But if they do it in a way to sling around political slogans, that doesn’t do much for anybody.”