A judicial think tank - or a plot?
WASHINGTON — Suspicion that hidden groups sway the powerful and subvert democracy routinely surfaces in American life, especially at times when the country is deeply divided. In early decades of the Republic, the whispers were about Freemasons. Later, they ranged from bankers and communists to the Trilateral Commission.
Now, it's the Federalist Society. In the run-up to the first Supreme Court confirmation in more than a decade, the group is drawing fire, especially as Democrats sharpen their line of questioning about court nominee John Roberts and his links to the society.
On its face, the Federalist Society is just another think tank in a town awash with them. But critics see something more - a well-oiled juggernaut out to remake the courts in the image of Robert Bork, the Supreme Court nominee rejected by the Senate in 1987, who predicted that a new generation, "often associated with the Federalist Society," would transform the legal profession:
"It may take 10 years, it may take 20 years for the second wave to crest, but crest it will, and it will sweep the elegant, erudite, pretentious and toxic detritus of nonoriginalism out to sea," he said in a 1987 speech. Judge Bork now cochairs the society's Board of Visitors with Sen. Orrin Hatch (R) of Utah, a member and former chairman of the Senate Judiciary Committee. [Editor's note: The original version had Hatch representing Nevada instead of Utah.]
"Twenty years later, the organization designed to carry forward Bork's jurisprudence is trying to get access to the top courts in the country," says Alfred Ross, president and founder of the Institute for Democracy Studies (IDS) in New York. "It's extremely dangerous."
More than a third of the judges President Bush has sent to appeals courts are members of the Federalist Society, say Democratic staffers on the Senate Judiciary Committee. (That compares with zero for his predecessor, President Clinton.) It's a talking point the Bush White House takes so seriously that it asked news organizations to retract reports that Judge Roberts has ever been a member.
But what is so insidious - or even surprising - about a conservative president appointing lawyers who belong to a conservative legal club?
Not much, say some legal experts. "I wasn't surprised or shocked that most of these folks have at least one degree of connection with the Federalist Society, because they're conservative lawyers and the Federalist Society is a conservative organization," says Akhil Reed Amar, a Yale University law professor.
Founded in 1982 by three law students to counter what they saw as a "liberal hegemony" in their law school faculties, the Federalist Society has grown to 35,000 members. Since recent press coverage of the group's clout after the Roberts nomination, membership has spiked. "It's something you don't expect in the middle of the summer," says Eugene Meyer, the society's president.
Its founding principles include promotion of limited government, separation of powers, the rule of law, individual freedom, and "the idea that the courts should say what the law is, not what it ought to be."
The group's founders describe the climate in law schools at the time as hostile to conservatives. "We thought of ourselves as wanting to rescue the Constitution from the Supreme Court," says cofounder Steven Calabresi, now professor of law at Northwestern University. "The Federalist Society has become a kind of law school without walls."
It has also evolved into a powerful network for young conservatives looking for clerkships or jobs in Washington, fueling the buzz that one doesn't get a top legal job in government without a tie to the Federalist Society.
"Anyone who is ambitious knows you have to network," says political scientist Sheldon Goldman, who writes on judicial nominations at the University of Massachusetts at Amherst. "With a conservative Republican administration in power, the Federalist Society is a wonderful opportunity to network."
But, as Judge Roberts is finding out, such affiliations can cause problems in a highly charged political environment that has often marked the nation's capital since its early days.
For example: The Freemasons, a fraternal organization that counted George Washington and Benjamin Franklin among its members, created such suspicion in the late 1820s with its secret rites that it prompted an organized backlash. "The first national convention of any political party was the anti-Masonic party," says Senate historian Donald Ritchie. The third-party movement nearly killed the Freemasons before the organization recovered in the late 19th century.
In the 1950s, Sen. Joseph McCarthy rose and fell on highly exaggerated charges of communist infiltration of the US government. In the 1990s, Republican senators grilled Clinton nominees on their membership in the American Civil Liberties Union, which many conservatives view as a liberal bookend to the Federalist Society.
"If a nominee has been very active in either organization, it raises some red flags. If you have that membership and a record of activism, that compounds the felony," says Professor Goldman.
Early in his first term, President Bush announced that he would not be calling on the American Bar Association to screen judicial nominees - a break with nearly 50 years of presidential practice. Critics worry that that mantle has passed to the Federalist Society - directly or indirectly.
Judge Roberts says he doesn't recall joining, and the Federalist Society doesn't disclose its membership, citing protection of privacy. But his name surfaced in the society's 1997-98 directory as on the steering committee for its D.C. chapter, a point first raised by Mr. Ross and the IDS.
Federalist Society officials play down the connection. "Being on the steering committee is different from being on the Board of Visitors. It means that a lawyer agrees to keep his law firm in the loop on our activities, not that he has a controlling role," says Mr. Meyer.
Whether Roberts was a 'member' of the Federalist Society, "the question is: So what? What are we talking about here: the Communist Party? The Ku Klux Klan?" asks Roger Pilon, vice president for legal affairs at the Cato Institute and a society member.
Recently, the society's executive vice president, Leonard Leo, took a leave of absence to help the Bush White House with the Roberts nomination. Critics say it's another sign of the society's influence in the Bush administration's overhaul of the nation's courts.
"It's not a secret conspiracy. The Federalist Society is quite clear about where they want to go on issues like civil rights law and corporate regulation. Their views are in the public, but the public hasn't paid attention," says Ross.