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Rick Garnett on the Federalist Society:
In a piece on Bench Memos that deserves wide circulation, Professor Rick Garnett movingly criticizes the marginalization of the Federalist Society by the White House. Here is an excerpt:
. . . Too often, this Administration, prominent nominees, and even Federalist Society members nominated for important positions in government have treated the Society as if it were something out of "The DaVinci Code", or the ultra-secret gaggle of powerful reactionary Rasputins that some on the left imagine, or just a goofy band of train-spotters. In my view, this Administration and the conservative Senators, who owe the clear thinking and dedication to the rule of law of their best staffers, lawyers, and advisors in no small part to the Federalist Society, have an obligation to stop this silly "Federalist Society? Never heart of it!" pose, and forthrightly to endorse, defend, and praise the Society.

The Federalist Society has been — as many honest, left-leaning law professors would concede — an immense benefit to the intellectual culture and the jurisprudential debate in our law schools. It has supplied countless thoughtful, intelligent, conservative lawyers to the bench, the academy, the bar, and public service. It has provided an invaluable forum for a genuine exchange of ideas, and also some accountability for the American Bar Association and the American Association of Law Schools. Its events, debates and panels are always diverse and provocative. . . .

Just as important, the Federalist Society has provided, in no small part, the intellectual heft for a large part of today's conservative movement in politics. For an Administration that owes its existence to this movement to, time and again, treat the Society like a goofy yearbook photo or an embarasing secret is more than irritating — it is shameful. If the Federalist Society really were a politically useful but in fact weird and non-mainstream outfit, then perhaps the "Fed Soc? Who?" attitude would be understandable. But, if course, the Society and its ideas are — among informed and thinking people, anyway — entirely respectable and, while certainly conservative, entirely "mainstream."

If Ms. Miers really does harbor the tiresome, skittish, establishmentarian, protect-the-guild wariness toward the society described in the accounts mentioned above — rather than respect for its work, admiration for the vision of David McIntosh, Steve Calabresi, Spence Abraham, and others who founded the Society more than 20 years ago, and gratitude for the dedication of hundreds of law students today who often take real hits in order to stand up for and strengthen the Society and its intellectual mission — then I am inclined to think that she has not earned (no matter what church she attends, no matter how good a person and impressive a lawyer she is, no matter how much she abhors abortion, no matter how loyal she is to this President, and no matter how Rehnquist-like her record turns out to be) conservatives' support.

Many of my students have worked very hard and sacrificed time for the Federalist Society. In so doing, they have improved their law school and the education of their classmates. (It's worth noting that left-leaning students benefit, too, from an exchange of views and from the competition and challenge that the Society provides). Having worked for, voted for, taken hits for, and defended this Administration and the legal and moral principles for which it purports to stand, these students deserve better than a nominee who appears to regard — again, if the accounts are accurate — them and their ideas as a source of irritation rather than a source of inspiration. (Of course, I hope the accounts of Ms. Miers's views about the Society are wrong). . . .
marc garber (mail):
Rick Garnett's take at week after Miers' nomination is interesting because, if memory serves, he was quoted in an AP story announcing the nomination as saying extremely positive things about her selection.
10.8.2005 3:44pm
Rick Garnett (mail):
It is true that I provided an enthusiastic statement after Ms. Miers's nomination. I continue to believe that she has been an inspiring trailblazer in the law, and I hope that I was correct in my view that she will bring a solid, clear-headed judicial conservativism to the Court. I continue to believe that many of the nomination's critics are on the wrong track, or overreacting. Still, the reports about her statements and views concerning the Federalist Society bother me, and raise questions. I'm hoping the reports are wrong, or will be repudiated.
10.8.2005 3:52pm
dk35 (mail):
I think Professor Barnett brings up an interesting point, but unfortunately he is unable to see the appropriate conclusion. Republican politicians are beholden to the Christian Fundamentalists, and it is in fact the Democratic party that is more in tune with the notions of liberty that Professor Barnett and his wing of the Federalist society hold most dear. My advice to the Libertarians is to stop being so naive in their loyalty to the Republican party, and look toward the Democratic party. Let Raich teach you something.
10.8.2005 4:10pm
Michael B (mail):
"I'm hoping the reports are wrong, or will be repudiated."

Let's be honest, when all we have are hopes and wishes we don't have much, do we?

This post obviously touches on why Miers can rightly be regarded as far from the most desired choice, a missed opportunity. Let's face it, perhaps the primary reason the WH and persons like Miers shy away from more forthrightly acknowledging the Federalist Society and/or the values it stands for is due to the social/political/legal offensives the Left and Left/Dems are always and unceasingly willing to take. People are daunted by this and running scared (Miers almost admits this vis-a-vis the Federalist Society). By contrast, Clinton had no problem at all forwarding RBG and Breyer.

Centrist/conservatives in general are daunted and unwilling to take necessary, well-grounded fights forward. That's the bottom line and this trait reveals itself in the Senate in spades. One need only think of the gang of fourteen or McCain-Feingold. It's time to stand up and be counted, certainly not as a mere reactionary against the Left, but along substantial and coherent constitutional grounds.

Miers should be rejected and some Senators need to manifest more backbone. Some properly gounded centrist/conservative offensives are called for and very much needed, contra judicial encroachments into legislative areas. Social/political comity is most certainly to be valued, but not when it's forwarded as a mere veneer by Left/Dems.
10.8.2005 4:42pm
Reg Brown (mail):
Rick,

I think your concerns are largely misplaced. I can tell you from personal experience that Federalist Society membership was a plus, not a negative, when the staff of the White House Counsel's Office and DOJ got together to assess potential judicial nominees and appointments to key legal jobs throughout the Bush Administration. Most of the members of Harriet's current staff, and Judge Gonzales' old staff, are proud members of the Federalist Society, and during the first term the President put Jan Williams, a former Federalist Society staffer, in charge of the Presidential Personnel portfolio for legal jobs. And I'd be stunned if Harriet's hand-picked deputy, Bill Kelley, wasn't a member of the Federalist Society. My hunch is that any distancing from the Society emanates from spinmeisters, not White House lawyers.

Reg Brown (proud Federalist Society Member since 1998)
10.8.2005 6:14pm
Reason:
Rick:
Am I hallucinating or have Ashcroft, Gonzales, Olsen, Scalia and innumerable other luminaries connected with the Administration made it a special point to show up at Federalist Society meetings and proclaim what a wonderful organization it is?
10.8.2005 6:28pm
Jim Hu:
dk35: "Let Raich tell you something"?!! 6-3 with all the Dem appointees voting against Barnett's client. Are you smoking the product?

If Raich speaks to this nomination at all, it highlights the difference between Scalia and Thomas. Of the two, Scalia has the more elite credentials...and I'll take Thomas on Raich.
10.8.2005 6:37pm
Jim Hu:
And the comments on Orin's paper trail bleg say she spoke at the Federalist Society.
10.8.2005 6:41pm
Michael B (mail):
"Of the two, Scalia has the more elite credentials...and I'll take Thomas on Raich."

And I'd tend to agree. Problem is, this admits of the charge of elitism per se as a valid, primary charge. It may well be in a secondary or lesser sense, but it's not what is most significant. Thomas, unlike Miers, had a substantial record of open advocacies prior to his nomination; Miers has, seemingly with some measure of conscious resolve, eschewed this. For example her quote indicating she "wouldn't belong to the Federalist Society" or other "politically charged" groups because they "seem to color your view one way or another."

It's all well and good to choose to refrain from belonging to any single group, but a better articulation of why she made this particular choice would also be desirable.

Put differently, RBG had an open and unabashed position with the ACLU (and no, this is not a simple or blanket dismissiveness of that org or of RBG's position within that org), by contrast Miers and others need to be careful about overt associations with entirely centrist orgs such as the Federalist Society. (That's "centrist" in the spirit of general classical liberal values, not in a pragmatic, triangulating sense vis-a-vis a specific legislative issue.) Hence, to the degree the charge in the original post needs to be attenuated, well and good; but that's the point, it only needs attenuation, it's a matter of degree, not of negating the concern in toto.
10.8.2005 8:35pm
Bezuhov (mail):
"My advice to the Libertarians is to stop being so naive in their loyalty to the Republican party, and look toward the Democratic party."

And when I look there I see me and mine being demonized above all others..cough..Janice Rogers Brown... cough... as "far-right, out of the mainstream, radical turn-back-the clockers". Whether this is out of ignorance of libertarian thought alogether (hard to believe, I know, but in the three years I just spent on an Ivy League campus, as was stunned at the extent to which libertarian ideas were completely unknown, or somehow confused with Christian Fundamentalism), or the usual working-the-refs cynicism, it does not speak well of your party, sir, or its prospects for recruiting anyone the least sympathetic to libertarian thought.
10.8.2005 9:27pm
Rick Garnett (mail):
Reg Brown and Reason make good points. I don't deny -- of course -- that members of the Federalist Society are important contributors in this Administration. That is one of many reasons, frankly, why I have and still do strongly support[ed] this Administration. However, my point still holds, I think: There is an instinct, at least in public, for the Administration and its spokespersons to distance themselves from the FedSoc, giving credibility to the tedious conspiracy theories about the organization. And, this is unfair to FedSoc members, especially ones in law schools where joining and working actively with the FedSoc can take courage (or at least a really thick skin).

I have added some language to my "Bench Memos" post, by the way, making clear my hope that Ms. Miers has outgrown any skepticism or ignorance about the Federalist Society.
10.9.2005 10:05am
Hoosier:
Federalist Society: Co-founded by Hoosier David McIntosh (R-IN). (Another gratuitous attempt to raise the intellectual profile of my home state. And did I mention that ND Law --in South Bend, Indidna--is in the top 20? I mean, did I mention it today?)
10.9.2005 11:18am
pbswatcher (www):
Disavowing the Federalist Society is only one small aspect of the larger problem. The Bush choices for the Supreme Court effectively disavow the entire conservative movement. The theory that the actual words of the Constitution meant something and continue to mean the same thing is somehow not to be mentioned in polite company. Hence the backlash.
10.9.2005 11:33am
lyle (mail):
I know of at least one local lawyer's chapter of the Federalist Society that, as individuals, are very upset about this.

Note: It's nice to have friends of Bush speak at events and say nice things about you. However, it is another when the public acts involving the nation's highest judicial post indicate they say less than nice things/don't defend you. Also, that POTUS himself doesn't step in and say a few things.

Currently he has said nice things about the ABA, but not Fed-Soc. Hm...
10.9.2005 11:37am
David Maquera (mail) (www):
PBSWATCHER is right on. Furthermore, Bush talks a good game but talk is cheap. Under Bush's leadership, the Republican party has abandoned its conservative foundation to become the party of wasteful spending, expanding federal government, increasing government entitlements, and cronyism. In response to DK35: the "libertarians" should not have to abandon the Republican party. Instead, "libertarians" and their fellow conservatives must retake the party from Republicrats like Bush and Miers and renew the party in the spirit of Barry Goldwater and Ronald Reagan. Ironically, I just received a form letter from Senator Frist hitting me up for campaign donations. I can assure Mr. Frist that I and my constituents will not be voting for any Senator in the Michigan Republican Party Primary who casts his or her vote for Miers.
10.9.2005 4:06pm
David Maquera (mail) (www):
PBSWATCHER is right on. Furthermore, Bush talks a good game but talk is cheap. Under Bush's leadership, the Republican party has abandoned its conservative foundation to become the party of wasteful spending, expanding federal government, increasing government entitlements, and cronyism. In response to DK35: the "libertarians" should not have to abandon the Republican party. Instead, "libertarians" and their fellow conservatives must retake the party from Republicrats like Bush and Miers and renew the party in the spirit of Barry Goldwater and Ronald Reagan. Ironically, I just received a form letter from Senator Frist hitting me up for campaign donations. I can assure Mr. Frist that I and my constituents will not be voting for any Senator in the 2008 Michigan Republican Presidential Primary who casts his or her vote for Miers.
10.9.2005 4:07pm
MCG (mail) (www):

I still don't know whether Ms. Miers is a good candidate for the Supreme Court. However, I don't think it's fair to expect her to have done better research on the Federalist Society than other corporate lawyers.
10.9.2005 6:02pm
Shelby (mail):
MCG:

The thing is, you don't really need to do "research" on the Federalist Society to know anything about it. Anyone attending law school who has any sympathy for viewpoints outside the left-wing canon learns generally about the FedSoc. Anyone actively involved in the state bar association and ABA, as Miers was at the highest levels, knows about it as well.

Her criticisms apparently reflected an active, moderately informed belief. It does not particularly trouble me that she disavows the Federalist Society's views (though I wish she shared them) -- but it is not at all credible to say she was unaware of them. If she is, she must be even less intellectually alive than Bush himself.
10.9.2005 8:53pm
M. Simon (mail) (www):
dk35,

....it is in fact the Democratic party that is more in tune with the notions of liberty that Professor Barnett and his wing of the Federalist society hold most dear.

Raich.

Kelo.
10.11.2005 3:22am