Commentary

McCarthy Liberals

This article originally appeared in the New York Post on July 29, 2005.
‘Are you now, or have you ever been, a member of the Federalist Society?” There the question was, all but literally, on Page One of Monday’s Washington Post.

Early reports that Supreme Court nominee John Roberts belonged to the Federalist Society were denied by both Roberts and the White House, but it seems that a liberal New York group critical of the society, the Institute for Democracy Studies, has dug up a 1997-1998 Federalist Society Lawyers’ Division Leadership Directory that lists Roberts as a member of the steering committee of the society’s Washington chapter.

Roberts, at the time a lawyer in private practice, continues to profess no recollection of being a member, the White House says.

Two issues loom here. The first is credibility. “The questions about Roberts’ involvement with the society,” the Post says, “may come down to the meaning of the word ‘membership.’ ” Shades of “it depends what the meaning of ‘is’ is.” But this is no Monicagate. No one has charged yet, and one hopes that no one will, that Roberts has set out deliberately to deceive.

The second issue is much richer. Whether or not Roberts ever 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? No, we’re talking about an organization of conservative and libertarian lawyers and legal scholars, begun nearly a quarter of a century ago in response to the overwhelmingly leftist tilt of the nation’s law schools, to try to bring some balance and a different perspective to that insular and highly politicized world.

Like many other “ideological” organizations, mainly on the left, the society has student chapters at most of the nation’s law schools and lawyers chapters in cities around the country.

In both cases they sponsor speakers and debates and hold conferences on the legal issues of the day. And, surprise, they invite lawyers, scholars and judges with opposing views to participate! That’s perhaps the greatest affront to the narrowly controlled law-school establishment that gave rise to the society in the first place.

The Post story captures it nicely with a quote from Emory Law School Professor David Garrow. “What matters is whether [Roberts] hung out with them [the Federalist Society] and not whether he signed the form or wrote the dues check. What’s important is the intellectual immersion.” Does that not speak volumes about the mindset at work here? Lawyers who associate with — gasp, think like — conservatives or libertarians need not apply.

And that brings us to the reaction of too many Republicans, some in the White House, to charges of this kind. Whatever his status turns out to be, there’s no need to distance Roberts from the Federalist Society, for there’s nothing disreputable about membership in it. Indeed, if there’s any disrepute, it’s in the state of legal education that gave rise to the society in the first place.

In fact, so successful has the left been in framing the terms of the debate over the years that when Ruth Bader Ginsburg came before the Senate 12 years ago, her membership in the ACLU wasn’t even an issue — and she wasn’t just a member, for years she was the ACLU’s general counsel.

Republicans have got to take this, and many other such issues, head on. Far from backing away from Federalist Society membership, that should be a badge of honor, because the society has slowly improved the nation’s law schools.

Yet that world is still far removed from the world of a half-century ago, when attorney Joseph Welsh responded to Sen. Joseph McCarthy’s allegations of guilt by association with the ringing words, “Have you no sense of decency, sir, at long last? Have you left no sense of decency?” That was a time when liberals understood the virtue of dissent and of a robust exchange of ideas.

How long ago it seems.

Roger Pilon is vice president for legal affairs at the Cato Institute and director of Cato’s Center for Constitutional Studies. He is a member of the Federalist Society and speaks often before law school chapters.