Minnesota Lawyer Blog

As always, seeing the real thing is the best way to create an informed opinion. Recently, much ink has been spilled about the Federalist Society, without the benefit of detail or context. For clarity's sake, it is worth briefly discussing what the society is, and what it is not.

A good deal of the press coverage about the turmoil at the US Attorney's office has noted Rachel Paulose's membership in the Federalist Society. At the same time, much of the punditry surrounding this story has characterized the society as a group of shadowy extremists. Those who cast the society in such terms often speak of it as a monolithic, clandestine organization, pursuing an agenda to re-make American law in its own image. Anyone who has actually attended a Federalist Society event will certainly find this characterization to be incorrect and over-broad. Rather than back-room intrigue, a society event consists mostly of discussion and debate about a variety of legal matters. At the same time, it is certainly true that the society has an advocacy role, and that it seeks to advance a particular vision of jurisprudence. Like the American Constitution Society (its cousin on the left) - the Federalist Society is committed to advancing its own version of legal theory by providing discussion forums for conservative and libertarian lawyers, with the presumption that they will act upon the ideas presented in these forums in their own careers. This is indisputably the case, but it is also far from unusual. Indeed, most legal associations or legal advocacy groups function in a similar way.

Where most critical commentary on the Federalist Society fails, is in its characterization of the organization as an ideological monolith. The "Federalist vision" is certainly not cohesive, nor is it necessarily intended to be. Its members generally share a skepticism about aspects of the "living" view of the Constitution, but they also hold divergent views on many issues. For instance, while conservatives and libertarians have long shared the common goal of seeking to reign in broad interpretations of the Commerce Clause, they have also had fundamental disagreements about other aspects of state power. These rifts have grown more accute in recent years, as some members of the conservative legal community have moved to defend controversial counter-terrorism policies enacted by the current administration. A cursory glance through the conservative and libertarian blogosphere quickly reveals the extent of these ideological divisions. From warrantless wiretapping to executive detention, the legal commentary provided at Powerline Blog (for example) is profoundly different from that found at the Cato Institute's on-line forum. Yet, each group of writers have attended, spoken at, or participated in Federalist Society events. Likewise, while Federalist chapters have invited proponents of broad executive power to speak (such as John Yoo), they have also hosted presenters who have taken exactly the opposite view, such as Timothy Lynch.

The problem with much of our public discourse today - on the both left and right - is how quickly it falls into caricature; and how quickly these caricatures are accepted as fact. As with many other matters, the tenor of the discussion about the Federalist Society could use more accuracy, and less presumption.

From my own perspective, I can speak only to the Minnesota Chapter. I have found the local Federalist group to be composed of a generally astute bunch of lawyers who just happen to have a conservative outlook. They have sponsored a number of thought-provoking programs here. I think that they have added a lot to the level of debate in the local legal community and for that should be commended.