Is Roberts a Fellow Traveler?:
The Washington Post has a front-page story today reporting that John Roberts was listed in a 1997 document as a member of the steering committee of the Washington DC lawyer's chapter of the Federalist Society. Being on the steering committee was apparently an honorary position and didn't require Federalist Society membership, but the revelation that Roberts may be a fellow traveler has some urging the Senate to get to the bottom of his connection with the Federalists. (If anyone in the Senate needs a script, I recommend that they try to avoid this one.)

  UDPATE: I have reworked the last sentence to minimize the risk that a reader would assume I am equating this issue with the McCarthy hearings, which at least one commenter seemed to believe.
Nathan Bauer (www):
I have to say that the reference to the McCarthy hearings seems like a bit of a cheap shot and a distraction. If Roberts is a member of the Federalist Society, he should just say so. The Senate has every right to consider the political views of a nominee in making their decision. And, frankly, if it were to turn out that Roberts was a member and claimed that he did not remember this fact, the Senate would have every right to be skeptical about his honesty in this matter. It doesn't seem like the sort of thing that a person as smart as he is would forget. To be clear, I'm not prejudging the matter. I just wish to point out that it is not a witchhunt to be asking this question.
7.25.2005 11:41am
It's depressing when people get dodgy about revealing trivia. So what if he was a member of the Federalist Society, or on the steering committee? But once you start playing games like "Well, I was on the steering committee, but technically I was never a member" it creates a credibility issue, and for no good reason.
7.25.2005 11:46am
Al Maviva (mail):
I can see the hearing transcript now:

Sen. Schumer: Have you now, or have you ever been, a Federalist Society member, a friend of a Federalist Society Member, a speaker at a Federalist Society event, aware of the existence of Federalist Society activities within this country, or a purchaser of tasty, moist double-chocolate brownies at the Harvard Law School Chapter, Federalist Society annual charity bake sale to help crippled children?

Judge Roberts: Have you no sense of decency, sir, at long last? Have you left no sense of decency?

Sen. Schumer: Answer the question.

The next nominee, one presumes, may stand accused of being a registered, open, "out" Republican; a former owner of an AMC Pacer; or worse yet might even be accused of having been a lawyer, having consorted with lawyers, or having known a lawyer once.

This pseudo-scandal -- Federalist Society contacts supposedly being a mark of dangerous radicalism and unsuitability for the federal bench - would be absurd, were it not so malignant and invincibly stupid.
7.25.2005 11:49am
Nathan Hall (mail):
Of what account is it if he is a Federalist? At most, it would out Roberts as right-of-center politically. That's neither news nor reasonable grounds for rejecting a SCOTUS candidate.
7.25.2005 11:49am
Mahan Atma (mail):
<i>"Federalist Society annual charity bake sale to help crippled children"</i>

Ha! Good one.
7.25.2005 11:51am
Dale Gribble (mail) (www):
whats wrong with belonging to the federalist society? it is still possible to package Roberts as retro Souter; Ginsburg could be counsel for the American Snivel Liberties Union and still have no opinion on the death penalty and many other contentious issues. Anyway in our Federalist Society chapter we had plenty of redneck democrat members.
7.25.2005 11:52am
It's not a big deal if he's a member, but why dance around the subject and/or play word games with it? As a previous commentor pointed out, it goes to credibility.
7.25.2005 11:52am
aslanfan (mail):
The critical question is: Does he own one of those neckties.
If there's a James Madison tie in his closet, he's in deep doo-doo.
7.25.2005 11:54am
LizardBreath (mail):
Don't be silly. Asking what professional organizations a nominee belongs or has belonged to is not an offensive or McCarthyist question. Roberts and those shepherding his nomination denied that he was a member of the Federalist society, a denial that now looks either inaccurate or very finely parsed.

Being a member of the Federalist Society is no big deal -- I'd expect that most politically engaged conservative lawyers are members, and I'd expect anyone Bush nominated for the Supreme Court to fall into that category. Falsely denying that Roberts was a member of the Federalist Society looks either awfully sloppy, if he can't keep his own history straight, or like an attempt to mislead the public about his political engagement. Neither one is a disqualification or a major scandal, but either is worthy of comment, and that's all it's getting.
7.25.2005 11:57am
Al Maviva (mail):
You laugh, Mahan. My law school chapter supported a number of charitable organizations. So did a chapter at a nearby rival law school. I hope this followup doesn't burst your bubble. Many on the left appear to comfort themselves with the notion that Fed Soc members spend their off hours -- when they aren't plotting the repeal of the 13th Amendment - pushing people in wheelchairs down the steps of courthouses. Sadly for PFAW's fundraising efforts, it ain't so.
7.25.2005 11:59am
Martin (mail):
Are we talking feature or bug here? Based on press reports and blog reading (e.g., discussions of Roberts at Right Coast) I thought it was conservatives who wanted to get to the bottom of Roberts's Federalist Society and other affiliations to figure out if, in his heart he is "one of us" (or "one of them" or however you want to put it). To throw in some more metaphors, the issue may not be so much McCarthyism as credible commitment theory.

On the other hand, as a practical matter, movement convervatives presumably will largely support, and certainly will not oppose, Roberts, so their interest in looking for assurance regarding his legal world view, while in some instances intense is, in a sense, academic. And some democrats may well try to use Federalist Society affiliations as a negative as you suggest.
7.25.2005 12:00pm
I like how the Post story says the Federalist Society keeps its rolls "secret." And what organization doesn't? Isn't that standard? And if it is, wouldn't it be wise to point that fact out instead of making it sound unusual and sinister?
7.25.2005 12:04pm
LiquidLatex (mail):
"I'd expect that most politically engaged conservative lawyers are members..."

Why would you ever want "the most politically engaged" liberal or conservative lawyers on the highest bench in the land that is suppose to stay apolitical? I like my lawyers apolitical, and I definitely like my Justices or Judges as apolitical as humanly possible.
7.25.2005 12:09pm
A Blogger:
Liquid Latex,

Can you name an apolitical Supreme Court Justice who served in the last 30 years?
7.25.2005 12:11pm
And who would those favorite "apolitical" jurists be, Latex?

Also of note is the interesting suggestion of guilt by association at the end of the article:

"What matters is whether he hung out with them and not whether he signed the form or wrote the dues check," said David Garrow, a law professor at Emory University. "What's important is the intellectual immersion."
7.25.2005 12:12pm
A Blogger: I agree.
And I would add, can anyone name a Sup Ct. justice of the last 30 years who served in elected government before being appointed to the Court? I have only been alive 23 of those years, but I am fairly confident that none have during that time. My point is that those whom are too politically-connected are not considered for Sup Ct. seats.

Liberals want to grab at straws and paint the Federalist society as a "political organization." That is why the tap dance over Roberts (if any has indeed yet occurred). It is not fair that membership in the Fed Soc is "political," but that membership in the ACLU, NAACP, NARAL, etc. is not.
7.25.2005 12:19pm
Nathan Bauer (www):
Prof. Kerr's update is a little disappointing. He does not address the main points raised by myself and other commenters (namely, that comparing this issue to McCarthyism is misleading given that there are legitimate reasons to determine the political views of a nominee and given that we now have reasons to at least be suspicious of the honesty of this nominee). Instead, he simply suggests that some of us mistakenly took him to be equating the latest issue with McCarthyism. But I certainly did not claim this. It's quite clear, however, that Kerr was comparing the two. Indeed, he continues to do so, as indicated by the linked reference to 'fellow traveller'. This is what I find to be a bit of a cheap shot and digression.
7.25.2005 12:25pm
A Blogger:
Sandra Day O'Connor was in the Arizona legislature. The rest just act like politicians (all of them are politically connected -- you can't get a SCT nomination without being connected).
7.25.2005 12:26pm
Too politically connected, or overtly connected seems to be a prob, though. Why else would so many Administration lawyers, but not members of the body-politic proper be annointed (or appointed) to the Sup Ct.?
7.25.2005 12:30pm
Mahan Atma (mail):
"My law school chapter supported a number of charitable organizations."

Are you saying the Harvard Law School Chapter of the Federalist Society actually did have an annual bake sale for crippled children? If they did, I owe you an apology.
7.25.2005 12:30pm
Ulrich Bonnell Phillips:
The secret membership rolls are the beginning of a new attack on the Federalist Society. Reporter can now write, "The Federalist Society, which never reveals members..." or "The Federalist Society, which keeps closed tabs on its membership list..."

The reporter hints at shades of Bill Clinton, "The questions about Roberts's involvement with the society may come down to the meaning of the word "membership.""

"In a subsequent column, Grimaldi wrote that Roberts "is not and never has been a member of the Federalist Society, as previous reported in this column."" Asking if someone is a member of an organization whether the Federalist Society, the Communist Party, or the Nazi Party is appropriate if the person is being considered for an appointed position. It is not appropriate to haul citizens before a Congressional Committee and ask if they are members of the Federalist Society.
7.25.2005 12:33pm
At the Fed student convention last year, we heard from Nadine Straussen (sp.?), head of the ACLU (NOT a Federalist), Judge Alex Kozinski (NOT a Federalist), and Alan Dershowitz (NOT a Federalist). There were several other, "bi-curious" speakers that didn't seem originalist, or for limited government in the least.

Kozinski and Dershowitz may or may not be tied to groups highly political. But what about the ACLU? Does Straussen subscribe to their views? Does Ginsburg? Is the ACLU overtly political? Do they lobby? Do they spend lotsa money lobbying? Do they endorse candidates?

I wonder if the Fed Soc does all the last enumerated items. . .

If you want to find the political influence at Fed Society meetings, look no further than the array of speakers that the meetings feature.
7.25.2005 12:37pm
Brett Bellmore (mail):
At a time when we were in a cold war with communist countries, and the Communist party was actively funded by foreign intelligence services, asking whether a nominee was a member was, in fact, far more relevant than membership in the Federalist society today. Because by any rational standard, it WOULD be disqualifying, in a way membership in the Federalist society is not...

McCarthy's problem was that he was pretending to root out communists. If that fake list he held in his hand had been accurate and well researched, he'd have been a hero.
7.25.2005 12:39pm
The Federalist Society is no big deal. And yet, the more secretive people act about it, the more conservatives insist that Senators are engaging in McCarthyism if they ask about it, the more evasive Roberts looks with the steering committee issue, the more people will come to the conclusion that maybe it IS a big deal.

It's silly for Democrats to try and make the Federalist Society look sinister, but I don't think Republicans realize how much they are enabling those efforts. Just answer the questions and move on.
7.25.2005 12:41pm

Sorry for being unclear. Let me try to be more articulate.

I agree with you that it is legitimate for the Senate to inquire into this question. I am no expert on the Senate confirmation process, but my understanding is that this sort of questioning is considered routine and unobjectionable. (I may be wrong about the history, but that's my sense.)

At the same time, I do sense that the press coverage and the statements of activists such as Nan Aron tend to present the Federalist Society inaccurately as a secret and revolutionary organization, rather than as a legal debating club with a wide membership in right-of-center legal circles. The press coverage makes it sound like membership in the Federalist Society is like membership in the Communist Party, setting up the (false) parallel with the McCarthy hearings.

I amended the first post because I realized (thanks to your comment) that it was very sloppy; as written, it led you to believe that I thought it would be akin to the McCarthy hearings to inquire about Roberts' association. My apologies for the misimpression.
7.25.2005 12:53pm
"namely, that comparing this issue to McCarthyism is misleading given that there are legitimate reasons to determine the political views of a nominee and given that we now have reasons to at least be suspicious of the honesty of this nominee"

So, there weren't legitimate reasons to determine the political views (and loyalties) of State Department and US Army employees?
7.25.2005 12:54pm
LizardBreath (mail):

Exactly. Being a member of the Federalist Society is nothing unusual or unexpected for a Bush nominee, nor is it out of the mainstream for anyone. It's an explicitly conservative organization, but a perfectly respectable one -- I'm a flaming liberal, and enjoyed many of the lectures the FS organized whin I was in law school.

Getting cagy about Roberts' membership or affiliation with the society, as has clearly happened here, though, makes it look like a shady right-wing cabal. In the context of this story, though, all the caginess came from the Roberts camp with the inaccurate (or finely parsed) denial. It isn't a big deal -- admit it and move on.
7.25.2005 1:08pm
Hans Bader (mail):
I don't know whether I'm currently a member of the Federalist Society or not.

Usually, I join it every other year to get continuing legal education credits needed to maintain my bar membership (Federalist Society continuing legal education seminars are open to the general public for a fee, but members get a discount). When I get enough credits, I drop my membership. Ironically, I once published something for a Federalist Society newsletter when I was NOT a member.

The Federalist Society is a large provider of continuing legal education, accredited by California, New York, and other states. It is not a secret society or something akin to the Communist Party, which collected intelligence for the east bloc during the Cold War. It's open to the public, and even liberal judges and lawyers speak before its conventions.

So Roberts' membership in the Federalist Society, or lack thereof, is pretty irrelevant, and his lack of knowledge about whether he was a member of it in the past is irrelevant, too.
7.25.2005 1:54pm
Al Maviva (mail):
Are you saying the Harvard Law School Chapter of the Federalist Society actually did have an annual bake sale for crippled children?

I can't speak for Harvard. I can only speak for the chapter at my school and the chapter at a rival school across town. Both were involved in charitable activities. My chapter teamed with non-political legal service fraternities to support a couple of their activities, and sponsored a program involving disabled veterans, and I think may have done a guide dogs for the blind fundraiser after I left. Does the HLS chapter do this kind of thing? Maybe one of the Volo-Khonspirators can tell us.
7.25.2005 2:29pm
42USC1983 (mail):
Talking heads: Is or John Roberts a member of the Federalist Society?
All thinking people [in unison]: Yawn.
7.25.2005 3:16pm
WHerndon (mail):
I certainly hope that most commentators here are not lawyers. Because if this is an indication of how they debate, I fear for our Republic.

Being a simpleton and a nonlawyer, I reach for the easy and most probable answer first. And here it is:

John Roberts never joined the Federalist Society, but occasionally participated in events sponsored by the group. In 1997, someone he knew at the FS asked Roberts to mention the FS to members of his law firm who might show an interest. Roberts agrees and the FS acquaintence listed Roberts on the steering committee, probably unbeknownst to Roberts.

And that's it. No one is being cagey. There's no shady right wing cable trying to deny Roberts' participation in the Federalist Society.

What makes me think this? Several things.

One, the only evidence linking Roberts to the FS is one listing from 1997-98. There is nothing else in 25-plus years of professional life. Zippo. Pretty thin gruel, if you ask me.

Two, Roberts explicitly told a Post reported in 2001 that he was not a member of the Federal Society. So it seems like he made a conscious decision at some point not to affiliate himself. And nobody at the FS seems to recall his active involvement or membership. Why not take Roberts at his word?

Why should we believe Roberts, you might ask? Because of my final point: Nobody who knows Roberts has a bad word to say about him. Everyone, liberal or conservative, praises his integrity, decency and honesty. So there's no reason to believe he is lying.

After all, why would he lie about something as trivial as this? It would be incredibly stupid and damaging to all that he has built in a lifetime of law. From all the glowing praise I've read of Roberts, this would be entirely out of his fine character.

Nonetheless, its seems some here are suspicious of Roberts or the Bush administration. Let's be clear. The White House asked for a correction, as I understand it, because Roberts objected to the press reports. So the Bush administration's request here is not the issue.

Of course, it begs the question. Why does Roberts not want to be associated with the Federal Society? Because he knows that Democrats view membership as a black mark. So do journalists, most of whom are liberal and side with the more liberal members of the court.

(Consider the ridiculous premise of a front-page article in the Boston Globe that linked Roberts' professional ascension to the rise of the Federalist Society, as if the two developments were intimately and inextricably related.)

Given that backdrop, it's not surprising in the least that Roberts would have declined to join the Federalist Society even if he sympathizes with the general views of its official members.

Every thing we know about Roberts so far, namely his mild behavior and professional cautiousness, suggests that this is exactly the sort of calculated decision we would expect him to make.

Ah, but who knows. Like I said, I am just a simple-minded nonlawyer. Perhaps the "truth" is far more complicated than I could possibly comprehend.

Or maybe, just maybe, the roots of partisanship extend so deep that generally 'good' people will believe anything 'bad' about those with whom they are in professional or political disagreement.
7.26.2005 2:54pm
WHerndon (mail):
Forgot the link to that Boston Globe story. The premise really is silly, especially if one believes Roberts about his nonmembership in the FS.

7.26.2005 3:00pm