Federalist Society not on fringe
R. Charles Henn Jr. and Frank B. Strickland
For the Atlanta Journal-Constitution
July 29, 2005
Much has been written and said over the past week about Judge John Roberts, the President's nominee to replace Supreme Court Justice Sandra Day O'Connor. While many articles and editorials have, not surprisingly, discussed Roberts' judicial opinions and legal experience, more recent coverage has focused on whether Roberts was a member of the Federalist Society for Law & Public Policy. This is troubling, particularly in a nation that has long valued the freedom of association provided by the First Amendment.
The press's angle is sadly reminiscent of Sen. Joseph McCarthy's famous query: "Are you now or have you ever been a member of the Communist Party?" For example, on July 25, the Washington Post published an article claiming that, "[i]n conservative circles, membership in or association with the society has become a badge of ideological and political reliability." On July 26, The New York Times editorial board urged the Senate to include "questions about Mr. Roberts' role with the Federalist Society," claiming that Roberts' legal philosophy "should not be a matter for discussion only among the members of cloistered clubs who know the secret handshake." New York Newsday opined: "Membership in the Federalist Society would almost indisputably lable a lawyer conservative." The following day, The Atlanta Journal-Constitution published an article complaining that "the question of whether Roberts...is a member was not settled."
The press and certain senators seem to be of the impression that the Federalist Society is a closed-door secret society of right-wing conservatives whose goals include taking over the federal judiciary. Nothing could be further from the truth.
The Federalist Society was founded on the principles that "the state exists to preserve freedom, that 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." The society regularly sponsors debates about these principles, featuring speakers from "right" and "left."
Far from being a "cloistered club" with a "secret handshake," the Federalist Society has an open, voluntary membership. Anyone is welcome to attend its programs. The Atlanta lawyers' chapter hosts about eight prrograms a year, and reporters and nonmembers regularly attend. While the society respects privacy by not publishing a list of all dues-paying members, it does publish a list of its more than 500 volunteer leaders, as well as its financial contributors.
All of this, however, is an irrelevant diversion. Whether Roberts is now or has ever been a dues-paying member of the Federalist Society is not pertinent to whether he is qualified to serve on the Supreme Court. What should matter to the Senate are his exemplary academic credentials, his extensive private-practice legal experience (arguing 39 cases before the Supreme Court), and his impressive tenure on the D.C. Circuit Court of Appeals.
Two years ago, the Senate unanimously confirmed his appointment to one of the nation's most influential courts. If it matters that—in 1997—he was on the steering committee for the Washington chapter of the Federalist Society, why did we hear nothing about this before?
R. Charles Henn Jr. and Frank B. Strickland are, respectively, president and chairman of the Atlanta Lawyers' Chapter of the Federalist Society.