In The Art of War, Sun Tzu exhorts the reader to know the enemy. Those engaged in the latest attacks on the Federalist Society plainly don’t know theirs. Let me offer a little history lesson because, as the LCD Soundsystem song goes, I was there.
A little context first. Plenty of robust editorial ink already has been spilled over the draft advisory opinion leaked from the Committee on Codes of Conduct of the U.S. Judicial Conference. The opinion seeks to bar judges from belonging to the Federalist Society, and its pale wannabe leftist counterpart, the American Constitution Society, allegedly because such membership denotes bias. (The American Bar Association, it says, is okay, for spurious reasons we won’t explore here.) As the excellent Carrie Severino of the Judicial Crisis Network has explained in several columns, this is baloney. So, too, say 200 sitting Federal judges, albeit in eight pages and with 31 footnotes. (Brief, for them.)
The necessity of debate between persons of differing viewpoints is the essence of the Federalist Society, and this has been true from its dawning days.
Severino and the judges are right. Canon 4 of the Judicial Code of Conduct plainly “allows judges to serve as members — and even officers — of ‘nonprofit organization[s] devoted to the law, the legal system, or the administration of justice.’” That describes the Federalist Society to a T. After all, the Canon thunders, judges should “not become isolated from” the society around them. Nobody learns much in an echo chamber.
Consider the source of this proposed prohibition. It appears that Chief Judge John McConnell, who sits on the federal district court in Rhode Island, also sits on the committee that drafted the proposed ban. Apparently he disclosed that he was a member of the American Constitution Society as late as 2010, when he ascended to the bench, and has given over half a million dollars to liberal causes, including to the campaign funds for Sen. Sheldon Whitehouse (D-R.I.), a passionate Federalist Society critic.
A report released in May 2020 by the Democratic Policy and Communications Committee (DPCC), chaired by Sen. Debbie Stabenow (D-Mich.), Sen. Chuck Schumer (D-N.Y.), Sen. Whitehouse, and other Democratic lawmakers, said the Federalist Society is the “nerve center for a complex and massively funded GOP apparatus designed to rewrite the law,” noting its influence over judicial selection and political appointments under President Donald Trump. The judicial conference committee’s draft opinion similarly cites “changing circumstances” as a reason for reevaluating judicial participation in the Federalist Society and notes the group enjoys financial support from “sources that support conservative political causes.” If we had a kit I wonder if we could lift Judge McConnell’s prints from the DPCC report, as well.
Who’s spinning conspiracy theories now?
The necessity of debate between persons of differing viewpoints is the essence of the Federalist Society, and this has been true from its dawning days. The inaugural 1982 conference at Yale was organized, in fact, to explore what then were strictly countercultural notions about the law, such as originalism and textualism. Not unlike the original Martin Luther, Gary Lawson, one of the founders, had actually nailed a lengthy manifesto of dissent to a classroom door.
Many of those who toted their cafeteria trays into the small faculty dining room at Yale for embryonic Federalist Society meetings were self-described conservatives. But there were also libertarians and Randians, fans of von Mises and Hayek, Catholics and Mormons, all seeking to explore ideas they weren’t hearing in the classrooms. I wasn’t a Yale law student (just married to one, after finishing my own law degree elsewhere), but they were democratic enough to invite me to join in. Another frequent attendee was a student named Akhil Amar, who did not share most members’ political outlook but enjoyed the opportunity for debate.
And that’s the heart of the matter. The Federalist Society was, and remains, an intellectual dueling club with open membership. It is the direct, lineal heir of the late, great William F. Buckley Jr., Yale man, National Review founder, and unapologetic conservative who relished nothing more than a spirited exchange of ideas. Old episodes of Firing Line make excellent lockdown viewing. WFB Jr. hardly reserved his guest chair for the exclusive use of the like-minded. Sure, he invited Thomas Sowell, Phyllis Schlafly, Ronald Reagan, and Milton Friedman for cozy chats. But he also had Noam Chomsky, Christopher Hitchens, Jack Kerouac, and Germaine Greer. He was all about witty and civil discourse, especially with those with whom he disagreed. Testing his ideas against theirs kept him (and them) sharp. Yale’s future Stirling Professor of Law and Political Science Akhil Amar knew this, too.
The Federalist Society has made it their practice always to include different viewpoints. Putting panels together to ensure a range of perspectives isn’t easy. I know because I’ve done it a dozen times. It can take a certain amount of digging, often followed by begging and pleading, to land a liberal willing to match wits with eminent jurists, scholars, and practitioners eager to challenge their views. But I’ve never known a panelist to be ill-treated for expressing a minority opinion. Most make a point of thanking the organization for the opportunity.
Everyone who bothers to look knows that the Federalist Society (unlike the ABA) has never taken positions on policy issues, engaged in lobbying, filed amicus briefs, or endorsed candidates for public office. Its only position is a commitment “to the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” That’s totally consistent with the oath of office judges take.
Two more points bear comment. The first is fundraising. It’s a rare organization that receives financial support from donors who disagree with their work. This is true left and right: to borrow from Mozart, cosi fan tutte. The judiciary is not political, but the path to the federal bench passes from the White House through the Senate, two undeniably political entities.
This leads to the second point: the allegation of bias. It’s crucial to distinguish process from outcome. Federal judges are selected through a process that is undeniably political and varies depending on which team is at bat. President Obama certainly did his best to fill all available seats on the Federal courts with his own choices. But the intended result is a judiciary that is insulated from buffeting political winds by life tenure. The Federalist Society’s brief creed advocates a commitment to the rule of law and strict construction. These describe process, not bias. Judge judges by the way they reach their conclusions, not according to which party wins or loses.
Besides, results can be misleading. In 1987, when Judge Robert Bork was nominated by President Reagan for a seat on the U.S. Supreme Court, some detractors made much of his alleged big-business bias, saying that as an appellate judge he ruled disproportionately “in favor of corporations.” They neglected to mention that in a great many of those cases the dispute was between Corporation A and Corporation B. That setup made it hard for the court not to rule “in favor of the corporation.” (P.S. I was there, too, and got a good, long look at Senate Judiciary Committee Chairman Joe Biden as he presided over the hearings.)
Rendered in modern vernacular, Sun Tzu’s advice runs like this: If you know your enemy and know yourself, in a hundred battles you will never be in peril. When you are ignorant of the enemy but know yourself, your chances of winning or losing are equal. If ignorant both of your enemy and yourself, you are certain in every battle to be in peril. Engagement with those whose views differ from your own is the antidote to ignorance. That’s what the Federalist Society has done for nearly 40 years. The advisory committee should encourage judges to participate, not attempt to ban them. It might help them stay sharp.
Betsy Dorminey is a lawyer in Georgia and an entrepreneur in Vermont. She has held several leadership positions in The Federalist Society, but the views expressed herein are her own. Her columns have appeared in The American Spectator, Western Journal, Townhall , and the Hill. She is Georgia state director of The Capitalist League.