The Federalist Society Under Fire

Back in law school, I was a proud card-carrying member of The Federalist Society -- apparently something that cannot be said about Supreme Court nominee John Roberts. At least according to the White House. Already, the Democratic knives have been sharpened to dissect the "issue" of John Roberts's potential involvement in the Society.

Few care about the purpose and function of the Society, or the fact that its impact is miniscule compared to the institutional juggernaut of the American Bar Association. No matter. For some, if there is a group of lawyers who doesn't subscribe to the leftist legal orthodoxy writ large, that is prima facie evidence of a threat to the republic -- or at least a collectivist, redistributive version of a republic, ruled by a positive law where status reigns, no vicissitude goes unaddressed, no liberty goes unenumerated, and the very notion of either "free minds" or "free markets" is supremely heretical.

Here is the radical agenda of The Federalist Society, in its own words:

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.

The best statement I have come across describing The Federalist Society's dynamics comes from UCLA Professor Eugene Volokh, who many TtP readers will recognize as the locus of the vast Volokh Conspiracy, where this article was found.

In the past few days, The American Spectator's R. Emmett Tyrrell and Third Branch Conference Chairman Manuel Miranda have come to the defense of Roberts and his (non-)affiliation with the Society, which eschews groupthink and welcomes actual debate on contentious issues.

Miranda's article raises an interesting point: why has the White House run away from The Federalist Society, even as it once employed one of its co-founders (former Michigan Senator Spence Abraham) as Energy Secretary?

Perhaps the Bush Administration distances itself from the Society because its record does not commend itself to a libertarian, or even conservative, view of government. With respect to the expansion of the welfare-warfare state, the endorsement of racial preferences, assertions of tutelary federal power in intrastate affairs, and the aggrandizement of the Executive branch, this Republican White House is growing government to an extent that the Clinton Administration could have only dreamed of post-1994.