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Coming Out


Progress Snapshot
Release 1.4 July 2005

by Randolph J. May *

Today's Washington Post reports in a front page story -- "Roberts Listed in Federalist Society '97-'98 Directory--Court Nominee Said He Has No Memory of Membership" -- that Supreme Court nominee John Roberts has said he has no memory of being a member of the Federalist Society. I do remember that I am a member, and I just (I think) paid my dues for next year.

The whole premise of the story seems to be that membership in the Society somehow might be disqualifying for Judge Roberts. About as close as one can get to understanding why this assertion by Charles Lane, The Post's staff writer, might be true is the following: "[T]he society's alignment with conservative GOP politics and public policy makes Roberts's relationship with the organization a potentially sensitive point for his confirmation process because many Democrats regard the organization with suspicion."

As the article also acknowledges, what the Society is best known for is sponsoring symposia on legal topics. While most (but I am sure not all) members of the Society have a perspective regarding legal matters that may be labeled "conservative", I've attended enough of these legal symposia to be absolutely certain that they almost always include speakers with a "liberal" perspective. (Don't you hate these simplistic labels that the labelers insist on using, especially when the labelers usually call those with a "liberal" perspective "moderates", just as they avoid using "left wing" as assiduously as they throw out "right wing"?) Anyway, a list of liberal speakers would include Ruth Bader Ginsburg, John Podesta, Abner Mikva, Walter Dellinger, Willie Brown, Nan Aron, Morton Halperin, Lloyd Cutler, Norma Cantu, Barney Frank, and on and on and on...

The Society states that it "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." We will have reached a pretty sad state of affairs in this country when association with an organization that seeks affirmatively to promote those principles calls into question a nominee's fitness to serve in our government. Especially when the organization affirmatively goes out of its way to include those with diverse perspectives on almost all of its programs discussing the hot legal topics of the day.

There is something, though, that Charles Lane failed to point out in his article that is noteworthy about the Society, and perhaps deserves further exploration in order to more fully understand the organization. Maybe it will become a point of contention regarding Judge Roberts' nomination. The Society has a practice of presenting speakers with a nice bound copy of the Federalist Papers after they speak at a Society event. At the time these papers were published--anonymously by the way--they contained some pretty controversial ideas in support of ratification of our newly-adopted Constitution--like separation of powers, an independent judiciary, and a system with a sovereign federal government and sovereign states. It's too late today, of course, for the Post to put a good investigative reporter on the beat to smoke out authorship of the papers. We know the authors to be James Madison, Alexander Hamilton, and John Jay, and we know the Federalist Papers are considered to be one of the truly remarkable works of political philosophy and political science ever written.

Perhaps The Post wants to explore what deeper meaning this practice of disseminating the Federalist Papers might have, and whether the "many Democrats that regard the organization with suspicion" also regard the papers suspiciously.

Further investigation might also disclose that the Society even has emblazoned on its materials the following quote from Alexander Hamilton's famous paper No. 78: "The courts must declare the sense of the law; and if they should be disposed to exercise WILL, instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body." Whether or not Judge Roberts is or ever has been a member of the Society is not as important as his views on how to exercise the judicial power that would be vested in him as a member of the Supreme Court. I hope he is Hamiltonian is the sense of No. 78.

And I hope the Society continues to attract members who share the belief that there is much in the Federalist Papers worth taking to heart.

* Randolph May is Senior Fellow and Director of Communications Policy Studies at The Progress & Freedom Foundation. The views expressed are his own.



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