Here we go, again. Today, Senator Dick Durbin expressed his befuddlement, perhaps with underlying disdain, as to why an overwhelming majority of this administration’s judicial nominations have either currently or previously 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 01:30:14 of the committee hearing recording):
There’s one thing that unites all of our nominees here, and you’ve heard over and over again, it’s something that’s called the Federalist Society. And I ask questions about it because it’s the most mysterious organization. So far this year the Judiciary Committee has held hearings on seven Trump judicial nominees, all of them, coincidentally, were Federalist Society members. And so far this year the committee has held hearings on eleven nominees to serve in the Trump administration, eight of whom were Federalist Society members. All told, 100% of Trump judicial nominees, 73% of Trump administration nominees who have had hearings before this committee, belong to this one organization, the Federalist Society. Coincidence? It looks increasingly like President Trump has a Federalist Society litmus test for his nominees. I wonder about this, we wanted an administration and a federal judiciary that is welcome to independent thinkers, with a diverse range of viewpoints. We don’t want the Federalist Society to serve as gatekeeper, and that’s exactly what they’re doing.
Last time this was an issue, Ben Sasse stood up against the demonization of the Federalist Society. This time, however, Senator Lee was able to explain why he, and I assume many others, became members of the Federalist Society (starting at 01:41:00 of the committee hearing recording):
I want to open by talking a little bit about the Federalist Society. One would think that this is some clandestine organization from the way some people describe it. I’m pleased to have been associated with the Federalist Society for basically my entire adult life. The first Federalist Society event I ever attended was actually in high school. I planned a field trip to a local law school Federalist Society event where a judge was speaking at the Federalist Society. I was later the Federalist Society president while I was in law school and enjoyed that experience very much. One of the things I loved about the Federalist Society, is that unlike many legal organizations that hold symposia, debates, and discussions, the Federalist Society goes way out of its way to get people from a pretty wide idealogical spectrum. One of the first national symposia I attended of the Federalist Society contained probably as many liberals as it did conservatives, if not more. Nadine Strossen, then the president of the ACLU, was present. There were a lot of other people whose views diverged from the small handful of conservatives who attend or teach at American law schools each year. So the difference I see between a Federalist Society event, and the events at most law schools, is you have a variety of views represented, and that in turn makes for better intellectual debate and discussion. That, I think, is good not only for the American legal education system, but also for the practice of law.
Though Senator Lee’s involvement since high school may be the exception, he touches on one of the major reasons that law students, who in fact span the ideological spectrum, get involved in the Federalist Society. As the former president of Georgetown Law’s Federalist Society, I spent a large portion of the year planning debates and interacting with colleagues about the legal issues that the debates covered. I have been able to reflect on the reasons I joined the Federalist Society, and why I will continue to stay involved. Spoiler Alert: none of these reasons have anything to do with furthering the corporate agenda or guaranteeing a future judicial/executive nomination. In fact, the reason I stay involved in the Federalist Society directly addresses Senator Durbin’s concern: I stay involved in the Federalist Society to learn and appreciate the various legal challenges our society faces, and to meet other legal professionals who bring a new, independent, and well formulated perspective to these issues.
First, I joined the Federalist Society because it challenged me to clearly and concisely articulate my arguments. My first year of law school was littered with a “you press the button, you get the cheese” mentality. Though there was some semblance of debate, most of it was pro forma, serving as a segue to the professor’s stance on any given issue covered in a first year law school class. To be clear, I don’t have any gripes with a professor teaching what he or she believes the law to be. But what I do take issue with is the fact that it’s almost impossible to meaningfully flesh out a significant portion of the legal and policy arguments underlying the black letter law in a class of 100-110 students.
Now, how did the Federalist Society change this for me? To put it simply, it was one of the first opportunities I had to surround myself with others willing to put forth views and arguments that were diametrically opposed, in an effort to convince one another or find common ground. For a majority of my time at Georgetown, an overwhelming majority of professors taught from the same ideological standpoint. I found it more rewarding to engage in debate outside of the echo chamber that the ordinary class room typically facilitated. For example, a colleague, who invited me to my very first Federalist Society event, and I engaged in a debate over the decision in DC v. Heller, and whether the Second Amendment also confers a constitutional right to possess a firearm, not only in the home, but outside the home. Though we differed on the issue, his arguments pushed me to develop mine further, and perhaps to concede some points that I would not have otherwise, had I not engaged in this discussion.
I also recall that my ability to appreciate nuanced argument really didn’t fully develop until the fall semester of my second year. I was in Professor Neal Katyal’s Criminal Law course. He was the first professor I had to consistently challenge every student, whether they volunteered or were called upon, to advocate for their view all the way down to the policy implications of every stance that was taken. It wasn’t until the end of the semester when I watched (albeit from a laptop in the library) Professor Katyal engage in a discussion at the National Lawyers Convention. The brief sentiment by Professor Katyal at the beginning of his discussion is what really ignited my curiosity about the Federalist Society :
I arrived at law school in 1992 as your typical knee-jerk liberal, and I thought what the heck would I learn from the Federalist Society? And it was actually Akhil [Amar] who said “you should go to these meetings and learn what they have to say.” And it’s been a profoundly great experience, one of the great joys to learn from all of you at Akhil’s suggestion.
Now, I’m not sure if I subconsciously connected my experience in Professor Katyal’s class to his experience with the Federalist Society. But I am sure that these two experiences turned me on to Akhil Amar, Nicholas Quinn Rosenkranz, etc. These explorations enriched my interest in and understanding of criminal law and constitutional law; valuable experiences I would not have had were it not for the Federalist Society.
Furthermore, I continued my participation with the Federalist Society because, though my beliefs and legal philosophy diverged from others’ in many ways, it helped me form invaluable friendships that I sincerely cherish. It is widely accepted that law school can be very isolating. This includes, but is not limited to, spending an unhealthy amount of hours every day alone, parsing through casebooks, outlines, etc. Coming together for debates, symposia, and various social opportunities to connect with those who not only share similar ideas as you, but who also share similar principles that “the state exist to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and the duty of the judiciary to say what the law is, not what it should be,” is perhaps one of the more fruitful ways to dilute law school drudgery.
As one who will soon be entering the legal profession, a professional that revolves around personal interaction and serving individuals, I simply don’t see the harm in developing my ability to understand, analyze, and articulate complicated legal doctrine while networking and developing personal interactions with colleagues who believe in and operate on the same basic principles that provide the basis for our chosen profession.
I could go on for a long time about how my experience with the Federalist Society profoundly enhanced my law school experience. As those closest to me know, I truly enjoy spending time with those who want to engage in civil discourse on a broad range of issues. I’ll be the first to admit that I am not as well versed in a number of topics as my colleagues are (including the ones on this blog). I will also admit that I don’t always agree with my colleagues on the issues which I do feel well versed in. But, the beauty of the Federalist Society is that it has taught me to advocate for the ideas and instincts I believe are right, all while embracing the multifarious ideas of others in a collegial fashion. To return where I began, I think that Senator Durbin is operating on a false premise that because one is a member of the Federalist Society, he or she cannot have independent thoughts or positions. If participating in the Federalist Society to further understand our Constitution and the rule of law, all while getting to know others who believe in the same principles, is wrong, then I’m not sure I want to be right.