Who’s Afraid of the Federalist Society? [Hint: Dick Durbin]

That darn vast right wing conspiracy is at it again:

At least, that is, according to some of the Democrats on the Senate Judiciary Committee.

This time, the target of their angst was Judge Amul Thapar, a federal district court judge in Kentucky who is up for confirmation to the United States Court of Appeals for the Sixth Circuit. That he received a unanimous “Well Qualified” rating from the American Bar Association is beside the point here – Judge Thapar has an unseemly flaw on his otherwise sterling CV. What might that be? Let Senator Dick Durbin explain (starting at 01:04:50 of the committee hearing recording):

When the list was announced of the Supreme Court nominees during the Trump campaign [which Thapar was on], the list was attributed to the Federalist Society and the Heritage Foundation. . . . I see on your list of memberships that you were a member of the Federalist Society. . . . I’d like to ask you why you joined the Federalist Society.

The Federalist Society – you know, that organization whose members believe in taking seriously the written text of the Constitution and of laws! Why would a federal judge who has sworn to uphold the Constitution have previously had any affiliation with a society dedicated to debating the meaning and contemporary relevance of the Constitution? Clearly, there is something insidious at work here!

Durbin was not alone, of course. Other Senators on the left side joined in this rather silly exercise in demonization by insinuation.

Thank goodness, however, for Senator Ben Sasse, who succinctly indicted this whole line of questioning:

Is it a radical idea to say that the state exists to preserve freedom? . . . Is it a radical idea to say that the separation of governmental powers is central to our Constitution? . . . Is it a radical idea to say that it is “emphatically the province and duty of the judicial department to say what the law is, not what the law should be”? . . . The Federalist Society is founded on 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. The Federalist Society is a debating society of law students and lawyers. It’s about the Constitution. We in this body have taken an oath to the Constitution. If there is any Senator of the hundred in this body that disagrees with any of the three, please resign today. This was nonsense. A huge part of this hearing was about trying to demonize the Federalist Society . . . .

I get that this line of questioning made for good politics for Durbin & Co. But it was rather farcical, as Sasse pointed out so poignantly.

Yes, the Federalist Society includes among its ranks many conservative and libertarian lawyers and law students who largely subscribe to the interpretive methodologies of originalism and textualism. Yes, this means that a member who adheres to these methodologies and who becomes a judge is likely to apply them in order to resolve hard cases not otherwise controlled by precedent. No, this does not mean that Judge Thapar will be a mindless drone who won’t decide a case without first consulting with Leonard Leo or the Koch Brothers to make sure the outcome is amenable to their policy preferences. By all accounts – again, the ABA unanimously considers him well qualified – he’s a pretty fantastic judge, upholding the oath that he took to the Constitution and sustaining the rule of law by setting aside his personal views to adjudicate disputes impartially and honestly.


LDB co-blogger (or, given his Federalist Society affiliations, co-conspirator?) Rob Barthelmess had these shirts made up (pictured right), tongue-in-cheek style, after the Gorsuch hearings.

“Sad!” to see some of the Democrats on the Senate Judiciary Committee making life resemble parody. Perhaps Justice Kagan’s reported love for the Federalist Society might soothe their angst? If only.


  1. Awesome response by Senator Sasse to Durbin’s poor political attempt to demonize FedSoc.

  2. […] been members of the Federalist Society. Our Editor-in-Chief, Joel Nolette, previously covered Senator Durbin’s fear of the Federalist Society. Senator Durbin expressed his concern in the following manner (starting at 01:30:00 of the […]

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