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The Federalist Society: Where Are They Now?


First Posted: 11/18/10 08:43 AM ET Updated: 05/25/11 07:15 PM ET

WASHINGTON -- The Federalist Society is one of the most powerful and unique organizations in the conservative orbit, describing itself as "a group of conservatives and libertarians interested in the current state of the legal order." But that simple description doesn't do justice to the influential network the group has built up, in addition to fundamentally changing the way that conservative ideas on the law are discussed and received in mainstream legal circles.

The Federalist Society gained widespread attention in 2007 for the power of its members within the Bush administration Justice Department. Since then, there has been less attention on the group, but according to legal experts, the group is quietly continuing to thrive in an environment where lawmakers and activists are increasingly touting constitutional law as the talk of the day.

A NEW ENVIRONMENT

The Federalist Society kicks off its annual conference in Washington, D.C. on Thursday, featuring high-profile officials like Senate Minority Leader Mitch McConnell (R-Ky.), Supreme Court Justice Antonin Scalia (who, as a professor, was one of the earliest supporters of the society and helped connect and fundraise for chapters) and Sen.-elect Mike Lee (R-Utah), in addition to legal luminaries like Richard Epstein and John Yoo.

Throughout its history, the group, founded in 1982 at Yale Law School, has prided itself on not explicitly taking policy positions on issues but rather creating the conditions in which conservative legal ideas can be debated and thrive. This year, the conference takes place in an environment that is perhaps more amenable to these ideas than at any time in recent years.

During the midterm elections, Republicans -- particularly those identifying with the Tea Party movement -- chastised Democrats for ignoring the Constitution, arguing that health care reform was unconstitutional under the 10th Amendment and debating whether part -- or all -- of the 14th, 16th and 17th Amendments should be dropped. Republicans have also promised to make sure every piece of legislation cites specific constitutional authority.

Indeed, this week's conference has sessions on hot-button issues like the 10th Amendment, the constitutionality of health care reform and Arizona's immigration law.

Steven Teles, an associate professor of political science at Johns Hopkins University and author of The Rise of the Conservative Legal Movement, said conservatives have always had a more "constitutional vision of public policy," while liberals have had a "policy, analytic way of looking at the world." During the '80s, '90s and the second Bush administration, however, conservatives became more like policy analysts.

"What is interesting about the Tea Party and the recovery of constitutional discourse is that it's in some ways a repudiation of that move that conservatives had made," added Teles. 

Eugene Meyer has served as the Federalist Society's executive director and CEO for more than 25 years. "It does seem to me as though there was a type of interest it was generating is not likely to go away very quickly," he said, noting the enthusiasm some of the incoming members of Congress have in this issue. Specifically, he pointed to Lee, Utah's new senator, who was president of his law school's Federalist Society chapter.

"More so than perhaps in the past, I think members of Congress will try to have one eye on the Constitution as they go about legislating," he said.

POST-BUSH OPERATIONS

Many people who have heard of the Federalist Society probably first became familiar with the group during the Bush administration, when officials in the Justice Department came under fire for giving special consideration to candidates identified with the conservative legal group -- part of the investigations into whether appointees politicized what were supposed to be apolitical programs within the federal government.

Beyond the implications with the Bush administration, the controversy highlighted the Federalist Society's importance in the conservative legal community and the role it plays in identifying future superstars. The organization has a budget of about $10 million and approximately 40,000 people involved, according to Meyer. Its most important work is done at the chapter level, on the campuses of colleges and universities, outside of the glare of the national media.

"The most important thing it does for students is it allows them to bring speakers onto campus, who break the monolithic views they get from their professors, and it allows them to network with each other, so they can somewhat support each other," said Randy Barnett, a Georgetown University law professor who is a member of the Federalist Society and speaker at the annual conference. "It's kind of a support network for people who are sort of dissidents within their own academic environment -- and I was one, before there was a Federalist Society, so I know how lonely it can be to be alone -- and you're not actually alone because there are people who might actually agree with you and respect what you're saying, but you don't know who they are because they're keeping their mouth shut."

This infrastructure still exists, even without Republican administrations, as Ian Millhiser, a legal policy analyst at the progressive Center for American Progress, noted. The movement simply continues to build up new talent in the off-years.

"There were a lot of very young, very smart lawyers -- you know, Rachel Brand and Viet Dinh and people like that -- who were objectively quite qualified for the jobs in the Department of Justice," said Millhiser. "They got very senior jobs at a very young age, and they got that because they had this movement backing them up. And that movement doesn't go away just because there aren't Justice Department jobs or White House counsel jobs or judgeships to be passed out."

Millhiser explained that moving up in the legal world is a process of resume building -- prestigious clerkships, top-tier law firms and so forth. What the Federalist Society does, through its chapters and networking, is help bright young conservatives check off these boxes.

"What the Federalist Society does really well, is it identifies that really really right-wing kid at Harvard Law School who is legitimately talented and who will do horrible things to the law but will do it very competently because they're a very talented lawyer," added Millhiser. "And they identify those people, and from the beginning of their career, give them opportunities, help them find those clerkships, help them network."

So did all the press during the Bush years -- much of which was negative but undoubtedly had the effect of magnifying the mystique of the group -- have any ramifications? Meyer replied that it certainly made more people aware of the organization and attracted more people who were genuinely interested in being involved in the discussions they were having.

"Probably 75 to 80 percent of what we do is not covered in the national press articles," said Meyer. "I think the coverage was probably a net positive, but not a huge deal one way or the other."

THE PROGRESSIVES

Part of the Federalist Society's mission in its earlier years was combating the American Bar Association, which it perceived to be ideologically biased toward liberals. But in a sign of the Federalist Society's success in shifting legal discourse, in 2001, the liberal American Constitution Society (ACS) formed to combat the growing "activist conservative legal movement."

"I have to give credit to the Federalist Society for having been very successful in helping to pack our courts with right-wing zealots and changing constitutional interpretation to restrict the rights that most Americans consider so vital," said Caroline Fredrickson, who took over as ACS's executive director last year, "and our mission is obviously to push back on that and work toward a more just society."

Millhiser argued that much of the Federalist Society's success has been in the willingness of high-powered government officials or judges -- who may have started out in a chapter of the group during law school -- to embrace the group and said progressives need to create a similar network.

"This does go to the lopsided way the Federalist Society works hand-in-hand with the electeds, and the electeds on the Democratic side just haven't done that with movement progressives," said Millhiser. "When Bush was in office, he nominated a very successful round of hardcore movement conservatives, some of whom received resistance...but many of them didn't receive any resistance at all. ... They got Bush behind them, they got the Republican senators behind them, and the Democratic senators pretty much rolled over, because they didn't view this as an important enough issue."

Now, however, added Millhiser, Obama has nominated Goodwin Liu -- who is "one of the most well-regarded legal academics in the country" and clerked for a Supreme Court justice -- but he's being blocked.

"When Goodwin Liu gets nominated, all of the elected conservatives line up to block him in a way that the progressive movement's allies in Congress just did not line up to block the Federalist Society stalwarts," he said. "There's always that relationship there. When there's a conservative president, the Federalist Society can give a list of names to that conservative president that they want to see nominated. And when there's a progressive president, then the Federalist Society can work with their allies in the Senate to make sure that the movement progressives -- or unfortunately, in this administration, really any judges -- don't get confirmed. Then they hold their slots open. If that seat on the 9th circuit or any other seat isn't filled before Obama leaves office, and we're looking a conservative president in six or 10 or however many years, it's probably going to go to someone the Federalist Society wants to get it."

Fredrickson said that the group has seen its membership grow since President Obama's election but argued the movement will need time to catch up with the decades of work by the Federalist Society.

"Their wisdom was in their recognition that having an impact takes long-term planning," she said. "They began their efforts around the courts so long ago, and they're really bearing fruit now. I think the lesson for us is not that progressives don't care or can't do anything about it, but in fact, it's a long-term process and we need to be patient and stay engaged, just like the right was, to make sure these constitutional values we embrace are fully shared by our judiciary."

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