The Volokh Conspiracy

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.

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.

<i>"Federalist Society annual charity bake sale to help crippled children"</i>

Ha! Good one.

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.

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.

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.

"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.

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."

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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.

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.?

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.

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.

Nathan,

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.

Steve-

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.

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.

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.