January 22, 2020

ARE YOU NOW OR HAVE YOU EVER BEEN A MEMBER OF THE FEDERALIST SOCIETY?: The Wall Street Journal reports that the Judicial Conference is thinking of prohibiting judges from being members of the Federalist Society. It’s too political—or so the Judicial Conference believes.

If the Judicial Conference does ban judges from being members of the Federalist Society, it will need to do the same for the ABA. Unlike the Federalist Society, which takes no stand on any legal or political issue, the ABA weighs in on countless issues, always taking the leftward leaning side of things. The ABA files amicus curiae briefs before the Supreme Court, again with a consistent slant to the left. The long march through the institutions infiltrated the ABA long ago.

Similarly, membership in “affinity bar associations” like the National Hispanic Bar Association and the National Bar Association (which is for African American lawyers), and the National Association of Women Lawyers will need to be prohibited. Those left-leaning organizations routinely take stands on controversial issues and file amicus briefs. The Federalist Society never does and never will.

I can’t tell you how proud I am to be a member of the Federalist Society. It’s true that its members are overwhelmingly conservative or libertarian. But to say that it is not monolithic understates it. Lawyers actually engage in civil debate at the Federalist Society. It always attempts to present all sides of legal and public policy debates at its functions (including different strands of conservatism and libertarianism as well as left-of-center views). That does not happen at law schools these days. There is far less ideological diversity on campuses than you routinely find at the Federal Society’s Annual Lawyers Conference.

Two personal anecdotes are worth mentioning here.

  1. In 1996, I co-chaired the Yes on Proposition 209 Campaign here in California. That measure, which passed with a strong majority, prohibited the State of California (including its universities) from discriminating against or granting preferential treatment to any individual or group based or race, color, sex or ethnicity in the operation of public education, public employment or public contacting. Needless to say, the Left hated it.

At the Annual Meeting of the Association of American Law Schools in January of 1997, a panel with OVER TWENTY speakers was presented. All of them opposed Proposition 209. Despite being both a law professor present at the conference and the second ranking person in the 209 campaign, I was not invited to speak. (That’s okay.  I’m not exactly Cicero, so maybe the AALS didn’t think I was a good enough speaker.) But there were at least three other law professors who had worked on the campaign who were also ignored

Meanwhile, the Federalist Society put on its own Proposition 209 panel at a nearby hotel to which all law professors were invited. If I remember correctly, the panel had five speakers. Three of them opposed Proposition 209 and two supported it (including me). Yet the Federalist Society is the organization that that Judicial Conference thinks is too political.

  1. A few years later, I was on a panel at the Federalist Society’s Annual Lawyers’ Convention. The topic was again affirmative action. The staff had worked to get speakers on both sides of the issue. But for some reason the left-of-center speaker did not show up. Much to the Federalist Society’s embarrassment, all it had was an empty chair. To remedy the problem, after I and the other panelists had given our prepared remarks, I stood up again and argued the other side of the issue the best I could. (I’m a lawyer. That’s what lawyers are supposed to be able to do.) The crowd appreciated it. I was later told that I was persuasive to at least one person in the audience.

The Judicial Conference tries to sound evenhanded by putting the American Constitutional Society in the same category as the Federalist Society. I should point out that the American Constitutional Society is (so far) a pale imitation of what the Left imagines the Federalist Society to be. It has far fewer active members and (weirdly) is far more political than the Federalist Society. But membership in the ACS shouldn’t be prohibited either—not unless membership in organizations like the ABA are prohibited too.

The Judicial Conference can argue that it isn’t preventing judges from being members of the Federalist Society prior to becoming judges. Nor is it preventing judges from attending Federalist Society events. But invariably a prohibition on membership will be taken as a sign that the Federalist Society is something bad … something that lawyers with a judicial temperament will avoid.  The truth is more like the opposite. Lawyers who are interested in hearing all sides of an issue gravitate towards the Federalist Society, not away from it.   The Judicial Conference should be pleased that to have judges who are members.

UPDATE (FROM GLENN): For perspective, what’s going on here is that the left expects the right to dominate the judiciary in the near future, and on its way out wants to change the “ethical” rules to block the right from behaving the way the left did when it had hegemony. A standard move and, of course, utterly unprincipled.

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