High Society: Conservative lawyers and their wonderful 'cabal'

National Review, April 30, 2001 by Kate O'Beirne

Be forewarned: Democrats hope to turn "Federalist Society" into two of the dirtiest words in American politics. They will use this phrase to distort the records of judicial nominees, in a concerted effort to derail their nominations.

They've been getting some practice at the state level. In a bitter battle for control of Michigan's highest court last fall, Democrats targeted three incumbent Republican judges for defeat. Prominent in the Democratic campaign was the charge that the judges' affiliation with the Federalist Society for Law and Public Policy Studies, a powerful "cabal" of conservative lawyers, made them unfit for the bench. One of the combatants, columnist Trevor Coleman of the Detroit Free Press, warned last month that the Federalist Society's influence reaches well beyond Michigan: "After eight years of being the proverbial barbarians at the gate during the Clinton administration, the Federalist Society has finally broken through and taken control of the village."

According to a Baltimore Sun editorial, the federal bench is the most recent victim of the Federalist Society's influence. In reaction to the prospect that Peter Keisler, a prominent Washington lawyer and former clerk to Judge Robert Bork and Justice Anthony Kennedy, might be nominated to the Fourth Circuit Court of Appeals, the Sun fingered him as a "stalwart" of that "increasingly influential organization of extremely conservative lawyers." Keisler, who has served on the Society's board of directors, would no doubt plead guilty to the editorial's charge that the organization hopes "to reshape . . . liberal, big government orthodoxy"; but the editorial also faults him on the grounds that his nomination would be "an affront to local Republican leaders" because he would enjoy "the biggest plum available" to the state GOP, even though he has not been engaged in party activities. A judicial nominee's membership in the Federalist Society so threatens the established order that a liberal newspaper is driven to defending Republican patronage on the federal bench.

The handful of law students who launched the Federalist Society 20 years ago didn't set out to drive liberal elites nuts; they wanted simply to provide a forum for conservative views on the constitutional order. Future Indiana congressman David McIntosh, future Northwestern law professor Steven Calabresi, and future Energy Department general counsel Lee Liberman Otis met as undergraduates at Yale, where they organized debates featuring conservative voices.

McIntosh and Otis went on to the University of Chicago Law School. In the spring of 1982, they joined with Calabresi, then at Yale Law School, and Spencer Abraham, a Harvard Law graduate who had started a conservative legal journal there, to sponsor the first Federalist Society conference at Yale. (Abraham, of course, is now energy secretary.) McIntosh explains: "We realized that there was a presumption in law school that the New Deal liberal view was the only view." Other law students clearly shared the frustration of this small group, and were interested in doing something about it. After the well- attended inaugural conference, about a dozen law students contacted them, seeking to establish chapters at their own schools. The founders then put together a twelve-page how-to pamphlet, and a year later hired the Society's first full-time employee, Eugene Meyer.

Meyer, a Yale conservative and son of late National Review editor Frank Meyer, is still executive director of the organization-which now has 25,000 members and a yearly budget of $3 million.

The Federalist Society describes itself as a group of conservatives and libertarians dedicated to the principles that "the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be." It encourages a conservative intellectual network that hosts hundreds of events, which are open to the public and generally include debates on legal topics. These forums have included presentations by scores of liberals, including Justices Stephen Breyer and Ruth Bader Ginsburg, Michael Dukakis, Barney Frank, and Patricia Ireland.

Nadine Strossen, president of the ACLU, has spoken at Federalist Society forums "regularly and constantly" since its founding, and praises both its fundamental principle of individual liberty and its high profile on law-school campuses. Strossen recently visited the University of Minnesota to address a Federalist Society chapter, which conflicted with an invitation from New York University's chapter for the same day. She sees the law-school chapters as the "best organized, most heard, and most influential groups at law schools." She also praises the group's intellectual diversity, noting that there is frequently strenuous disagreement among members about the role of the courts. She explains that she typically can't draw any firm conclusion about a potential judicial nominee's views based on the fact that he is a Federalist Society member, but she suspects that "the Federalist Society, plus Ashcroft, plus Bush, won't put the libertarian wing in ascendance."