The In Crowd
Conservatives who Sought Refuge in the Federalist Society Gain Clout
Posted Sep 1, 2001 11:27 AM CDT
By Terry Carter
Telephones at the Federalist Society's Washington, D.C., office lit up and flashed like Christmas trees in late March and for many weeks afterward. The White House counsel's office, made up partly of members of the society, had just bumped the ABA from its half-century, quasi-official role of vetting potential nominees for the federal bench.
And the Federalist Society was getting the credit. This ideology-driven network of conservative lawyers had clamored its disapproval of the ABA's role for years. Now it was done-a development that has been attributed to the society's widespread influence in the Bush administration.
News reporters wanted contacts and comment. They wanted copies of the group's promotional materials and annual report. They wanted to know just who and what the Federalist Society for Law and Public Policy Studies is.
The sudden interest in this relatively little-known group of conservatives, mostly lawyers, prompted a kind of outsourcing that the lean-staffed Federalist Society had never done before. It hired Powell Tate, one of Washington's bipartisan public relations shops with political contacts, for screening, spinning and spoonfeeding reporters.
“It's been hectic,” said Federalist Society executive director Eugene Meyer in the midst of the media onslaught. “We're not used to so much press.”
Those barrels of ink blurred into a political Rorschach.
Conservatives looked at the blot and saw payback in the ABA loss. They still seethed over the failed nomination of Robert Bork to the Supreme Court in 1987. Though the ABA's Standing Committee on the Federal Judiciary gave Bork its highest rating, those critics focused on the dissent by four of its members.
At the same time, some liberals were suddenly asking just who are these people, sometimes with the tone of the anti-communists of the early 1950s who asked, “Are you now or have you ever been a member of ....”
That the Federalist Society felt the need to hire public relations specialists speaks to more than just the fact that the group had arrived as a player in politics and policy. It also goes to the Washington truism that it is much easier being a critic in the wings than a player on stage.
The Federalist Society has come a long way since its inception in 1982, starting out as a debating society in a couple of law schools. Now the organization has become the central nervous system for a network of conservative lawyers. “I guess we're the capillaries, too, because we're the only game in town,” says Gary S. Lawson, a Federalist Society director and a professor at the Boston University School of Law.
In the beginning, the society was just as much a social club for students to come comfortably out of the political closet. They felt isolated, they say, in the midst of the overwhelmingly liberal mindset of legal academia.
Federalist Society co-founder and co-director Steven Calabresi recalls his surprise that only two of 88 members of his first-year class at Yale Law School raised their hands when asked if they'd voted for Ronald Reagan for president the previous day. Surely, he thought, he and that other student weren't the only ones who had voted for Reagan in his 1979 landslide victory over an incumbent president.
“I think some others in that room had voted for him, and I realized we needed an organization to at least encourage others to come forward,” says Calabresi, a professor at the Northwestern University School of Law in Chicago.
The war stories continue today. Ronald Rotunda, who teaches at the University of Illinois College of Law, says some student members have complained to him that they fear taking courses from one professor who is adamantly and publicly criticial of the Federalist Society-they don't want to get a bad grade because of their politics.
That's ridiculous, says professor Francis Boyle, the Federalist Society critic who has led demonstrations against some of its events. “We have anonymous grading here,” Boyle explains. “I have no idea whose paper I'm looking at.”
Rotunda expresses bemusement at the notion that Federalist Society members represent some kind of secret society. “If there's a secret handshake, no one's ever told me,” he says. “If there are secret meetings, no one has invited me.”
Tight at the Top
The sudden prominence of the relatively obscure Federalist Society belies the fact that its leadership is a who's who of the tight-knit conservative community in Washington.
Robert Bork and Sen. Orrin Hatch are co-chairmen of the Federalist Society's Board of Visitors-a group composed of well-known figures active in providing vision and inspiration. Among them are the leaders of the Reagan Justice Department, Edwin Meese III and William Bradford Reynolds.
Another board member is Donald Paul Hodel, who was secretary of both the Interior and Energy departments in the Reagan administration and later was president of the Christian Coalition, which he left two years ago.
Three of President Bush's Cabinet members are either members or active participants in Federalist Society activities: Energy Secretary Spencer Abraham, a founding director; Interior Secretary Gale A. Norton; and Attorney General John D. Ashcroft.
Other members or participants are sprinkled throughout high levels of the Bush administration. They include Solicitor General Theodore Olson and five of 11 lawyers in the White House counsel's office.
“Surprise, surprise,” Calabresi says of news reports about the prominence of Federalist Society members.
“Conservatives are being hired by the Bush administration. What else would you expect? We're the only major organization of conservative lawyers out there and don't have much competition, for better or worse.”
While the group is quick to point out that it does not lobby, litigate or stake out policies on controversial issues, it does act as the network, forum and information clearinghouse for its members who do just that.
Members implement their strategies through an assortment of Washington-based conservative groups, such as the Washington Legal Foundation, the Institute for Justice and the Center for Individual Rights.
The Federalist Society professes a kind of limited government that, through the work of its members, has translated into significant shifts in the law. Members have promoted, for example, compensation for regulatory “takings” of property, states' rights as opposed to federal power, the idea that claims of global warming rest on questionable scientific grounds, fewer or no government regulations in many areas, an end to affirmative action, and tort reform.
Though they decry so-called judicial activism, policy inroads consistent with the organization's goals have mostly been made through litigation-though not done through the Federalist Society itself.
The organization's 15 practice groups, created in 1996 and modeled on the ABA's sections, have been workshops for formulating legal strategies that then are implemented through other organizations, often by Federalist Society members.
One example is the litigation to end racial preferences in admissions at several law schools and universities. Federalist Society members Theodore Olson and Michael Carvin were instrumental in cases brought by the Center for Individual Rights, including Hopwood v. Texas, which ended racial preferences in admissions at the University of Texas Law School. Hopwood v. Texas, 236 F.3d 256 (5th Cir. 2000).
Carvin is chairman of the Federalist Society's Civil Rights Practice Group and also is a founding director of the Center for Individual Rights.
Olson and Carvin also argued in the U.S. and Florida supreme courts last year on behalf of President Bush in the contested election.
Issues such as racial preferences can strike chords with Americans in diverse settings, from blue-collar coffee breaks to bluenose teas. And the answers, indeed, are percolating up differently through different courts.
But some ideas on the law bandied about in Federalist Society debates are more outside the mainstream. It is all done, the society's leaders say, in the spirit of debate.
Calabresi pitched an idea at a Federalist Society conference on judicial abuses three years ago that Congress could simply “abolish all the federal courts and their jurisdiction, as it sees fit.” Bork himself has tilled that ground, calling for a constitutional amendment that would let Congress overrule judicial opinions it doesn't like.
There are some fierce in-house debates among Federalist Society members, as well. For example, the many libertarians in the organization favor the legalization of recreational drugs, which the social conservatives oppose.
But it is the opposition from outside that provides a significant measure of the Federalist Society's success. Launched in 1999 as a student chapter, the Madison Society for Law and Policy at the Georgetown University Law Center is a sort of liberal foil to the Federalist Society. The name itself is an obvious tweak. Critics have said that the Federalist Society's emblem, a silhouette of one of the authors of the Federalist Papers, James Madison, is miscast because Madison in his later years wanted a strong federal government. That is anathema to the Federalists.
“The terms of debate in this country have shifted to the right in a way that surprised me,” says Peter Rubin, faculty adviser to the Madison Society. He recently announced an expansion to other law schools. And he also announced that Harvard Law School professor Laurence Tribe has joined him on the Madison Society's board of advisers.
“They've championed a kind of jurisprudential thought that fails to recognize the impact of law on the lives of people,” Rubin says of the Federalist Society. “They're much more based on abstract notions and concerns with economic efficiency as the highest goal of law.”
Tribe doesn't think the Federalist Society has “anything genuinely resembling a coherent political or legal philosophy but, rather, a common set of more-or-less results-oriented inclinations.”
These inclinations are often philosophically inconsistent or incompatible, Tribe says. He offers an example: Federalist Society members tend to believe in state autonomy when the federal government tends toward egalitarian concerns or protecting the environment, but believe in federal supremacy when it protects business or other wealth-maximizing efforts.
“I think Tribe's argument is more with the framers of the Constitution than it is with us,” says Calabresi. “The text of the Constitution protects federalism but also in some circumstances business or private property rights.”
“We simply believe in limited government,” says C. Boyden Gray, a member of the Federalist Society's Board of Visitors and one of its leading spokesmen.
While some have scoffed at the Federalist Society over the years, the criticism usually has been of the kind reserved for fringe groups. Recently it has become more respectful, if grudging. Some critics admit that the Federalists clearly have been very successful in moving the debate and, in some areas, the law and policy to the right.
“They're very clever in looking for opportunities to inject their views on the law through a number of conservative organizations, like the Washington Legal Foundation and other groups that can inject themselves into controversial issues,” says Edward P. Lazarus.
His 1998 book, Closed Chambers: The Rise, Fall and Future of the Modern Supreme Court, detailed the workings of a “cabal” of conservative law clerks, including a number of Federalist Society members, who were at the Supreme Court along with him in the late 1980s.
Lazarus says some critics go too far in seeing a conservative conspiracy to remake the law. “There's nothing nefarious about it, and I think liberals make a terrible mistake when, instead of engaging these folks on the merits, they overemphasize some kind of conspiracy theory,” Lazarus says.
While the Madison Society is gearing up a challenge in law schools, the Federalist Society already has its full-time critics. One, the Institute for Democracy Studies, released a lengthy report on the group earlier this year, detailing its funding, its work and its leadership.
The ids is run by Alfred Ross, who was director of the Planned Parenthood Public Policy Institute before launching what was then called the Center for Democratic Studies in 1996.
The IDS'S stated mission is to track “antidemocratic religious and political movements,” and it concentrates on law, religion and reproductive rights. Like the Madison Society, the IDS is starting law school chapters. A pilot project has begun at Columbia Law School, with others soon to follow at New York University and the City University of New York.
The IDS report says the Federalist Society is behind a “radical transformation of the legal system” that would reverse law and policy concerning, among other things, reproductive rights, civil rights and the environment.
“I guess all of this [attention] is flattering,” says the Federalists' Calabresi.
But not always that flattering. The society suddenly came under the same kind of scrutiny it brought to other groups, including the ABA.
Democratic leaders in the Senate dug in their heels on judicial nominations after the ABA's ouster. They saw it as an attempt to ease and expedite nominations of far-right ideologues. But the sudden change in control of the Senate wrought by Vermont's James Jeffords' party switch also reversed the ouster of the ABA-at least in the Senate, where it counts most. Judiciary Committee Chairman Patrick Leahy, D-Vt., who recently assumed the chairmanship from Republican Orrin Hatch in the shakeup, pledged that no nominee would receive a hearing until the ABA's vetting was completed.
Before the reversal of fortunes in the Senate, The New York Times reported that, of the first 70 candidates interviewed by the White House for judgeships, “17 to 20 have been directly recommended by the Federalist Society's Washington head-quarters.”
That would be a breach of the organization's claim that it doesn't lobby, litigate or endorse nominees or candidates.
Asked whether the Federalist Society's Washington office had supplied a list of names to the White House, Meyer says, “A lot of people involved with us as an organization are quite prominent and know lots of people. I suspect in some form that's where that [New York Times report] comes from.”
The White House declines to say whether the Federalist Society had supplied a list of names.
President Bush's first batch of federal appeals court nominees included a few Federalist Society members. The second group did not.
It is widely believed that the power shift in the Senate removed some of the pressure on Bush from some constituents to put up far-right conservative-and thus more controversial-nominees for the bench.
During the 1980s, the Reagan administration nurtured the then-nascent, primarily law-school-based Federalist Society, bringing many of its young founders and leaders into key positions in government. In turn, a number of the administration's older personnel joined the Federalist Society, some of the more notable of them joining its leadership.
Meyer, a nonlawyer, was the Federalist Society's first employee, named executive director in 1984. His late father, longtime National Review editor Frank Meyer, wrote a book that became the bible of modern conservatism, In Defense of Freedom, published in 1962.
The society's main focus, beginning in the Reagan years and continuing today, has been the federal bench.
Members want an end to much of what they believe is the overreaching law of the New Deal and the Warren Court era, and they want judges who think accordingly. They were banking on Bork to do so on the Supreme Court. He had been an adviser to the group's founders at Yale Law School, as had Antonin Scalia at the University of Chicago Law School.
That focus now appears to be paying off.
The society's pipeline has served as a source of law clerks for key conservative judges on federal courts-from the District Courts to the Supreme Court. At the appeals court level, these judges include such notable Federalist Society members as Alex Kozinski of the 9th Circuit, J. Harvie Wilkinson and Michael Luddig of the 4th Circuit, and Lawrence Silberman of the D.C. Circuit. From their chambers, some clerks have gone on to work for such Supreme Court justices as Scalia and Clarence Thomas.
The Federalist Society's membership increased exponentially during the 1990s and now is at about 25,000. Its more than $3 million budget comes largely from conservative donors such as the Sarah Scaife Foundation, the John M. Olin Foundation, the E.L. Wiegand Foundation, and the Lynde and Harry Bradley Foundation.
The society, whose mission statement notes that “law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology,” has gained a reputation for balanced, big-name panel discussions on a variety of legal topics. The questions, though, are typically cast in conservative-libertarian fashion.
And it touts those big names whenever possible, with a six-page, single-spaced list of them in the group's promotional packet. They include presidents, Supreme Court justices, all manner of high-ranking government officials and prominent lawyers and academics.
“They have worked hard to get mainstream conservatives as members and not the kooks,” says Judge Loren Smith, a longtime Federalist Society member who is well-known for his takings jurisprudence at the U.S. Court of Federal Claims. “That had been a big problem for conservative groups in the 1960s, with the old pre-World War II isolationists still around.”
One prominent Democrat who had appeared often on Federalist Society programs decided to stop doing so for a reason that, ironically, is somewhat flattering to the group.
“They'd put on a good show and go out of their way to balance them,” says Abner Mikva, a former member of Congress, federal appellate judge and White House counsel. “But I stopped because, even though I felt they were interesting and useful, I didn't see why I should contribute to their success. They're dissembling when they pretend they don't have an agenda.”
Some critics saw a political agenda among the society's members who helped disclose President Clinton's indiscretions.
His personal escapades, which polarized politics as perhaps never before, probably did more for the Federalist Society's growth than even their hero, Ronald Reagan.
News reports said active members helped Paula Jones bring her lawsuit and made sure that Linda Tripp's secret tapes of Monica Lewinsky came into the possession of independent counsel Kenneth Starr.
Questions about the anti-Clinton crusade nearly scuttled the nomination of one of the group's most influential leaders, Theodore Olson, for solicitor general. Democrats dug in their heels to stop him after allegations arose that he had failed to disclose the extent of his involvement in the Clinton investigations.
But they declined to stop Republicans from rushing a vote on the Senate floor for Olson after the Jeffords defection, apparently preferring to put their efforts into scrutinizing judicial nominees.
The prominent roles in government now played by Olson and other Federalist Society members is testament to the group's increased influence in the conservative movement.
The Federalist Society has become “the legal intelligentsia for the Republican party,” says Jamin Ben Raskin, a professor at the American University Washington College of Law.
“Liberals do well in issuing broad-minded statements of principle,” Raskin says, “but the conservatives know how to organize in military style and get the job done.”
In the Beginning
The law students who founded the first Federalist Society chapters at Yale Law School and the University of Chicago Law School in 1982 had been undergraduates together at Yale-Steven Calabresi, David McIntosh and Lee Liberman Otis. Soon afterward they were joined by Harvard law student Spencer Abraham, who had started the conservative Harvard Journal of Law and Public Policy, and a Harvard chapter was created.
They did not envision a nationwide network of conservative lawyers who would push policy and law to the right. They just wanted to hang out with kindred spirits and speak openly about conservative ideas.
Abraham later became a U.S. senator from Michigan and recently was named energy secretary. Calabresi would go on to clerk for Robert Bork and Antonin Scalia on the U.S. Court of Appeals for the District of Columbia Circuit, and then worked in both the White House and the Justice Department in the Reagan and Bush administrations from 1985-90. McIntosh became a special assistant to Attorney General Edwin Meese and to President Reagan. He was a three-term congressman from Indiana and failed in his gubernatorial bid last fall.
Otis became an assistant attorney general in the Meese Justice Department, then clerked for Scalia at the Supreme Court. She was then-Sen. Abraham's chief counsel on the Senate Judiciary Committee and now is his No. 2 person at the Energy Department.
While law students starting the Federalist Society, they attracted the attention of neo-conservatives William Simon and Irving Kristol, who gave them a $25,000 grant for a national symposium in their first year. That seed money, and the organization, grew and grew.
"The In Crowd," September, 2001, should have identified 1980 as the year of Ronald Reagan's landslide election victory. The Journal regrets the error.