Is the Federalist Society Evil?

I love this article by Paul Craig Roberts on the “true cost” of the Iraq war and think everyone should read it.

But there’s one sentence in this otherwise-outstanding piece to which I take exception.  Roberts writes: “The fascist Republican Federalist Society has put enough federal judges in the judiciary to rule that the president is above the law.”

This is nonsense.

First, let’s tackle the claim that the Federalist Society is “fascist” and “Republican.”

The Federalist Society was formed by law students who were frustrated by the left’s dominance at law schools.  They created the organization to provide a forum for alternative voices: namely, those of conservatives and libertarians.

Here’s how the Federalist Society functions.  There’s a national headquarters in Washington (a red flag, I’ll grant you), there are student chapters in almost every law school, and there are lawyers’ chapters in various cities.

The student and lawyers’ chapters generally do one thing: host lectures and debates.  These events feature speakers ranging all the way from people Roberts would probably call “fascist” to anarcho-capitalist libertarians such as Randy Barnett and Walter Block.   One frequent Federalist speaker is Roberts’s fellow columnist at Antiwar.com, Doug Bandow, whose lecture topics include the American Empire.

Who decides who will speak at these events?  Each chapter’s members.  If the members tend to be more conservative, they may bring in more conservative speakers.  If the members tend to be more libertarian, they may bring in more libertarian speakers.

If the balance seems to tip in favor of conservatives overall, it’s only because there are, of course, many more conservatives than libertarians among America’s law students, lawyers, and law professors.  In fact, it’s safe to say that libertarians are featured at Federalist Society events in rather gross disproportion to the percentage of its members who are libertarians.  Why?  Probably because it’s a group that was founded for the purpose of having alternative ideas expressed and holding intellectually stimulating events.  I should add that leftist speakers often appear at Federalist debates, too — because the purpose is to debate ideas, not to cram some Republican agenda down people’s throats.

The national office of the Federalist Society puts on a symposium every year where top conservative and libertarian legal scholars speak — and this usually does include a Republican Supreme Court justice.  Nonetheless, libertarians are there, and they are given a respectful hearing like everyone else.  Incidentally, at the last symposium, Judge Janice Rogers Brown — who isn’t perfect but certainly satisfies my big-tent notion of who counts as a libertarian — quoted from Thomas Woods’s book Meltdown, which it’s safe to say is not a favorite of fascists.

I should add that anyone can attend these events (usually the student ones are free), and audio and video of many of them are posted online as well, so anyone who is interested can see what the Society is all about.

The Federalist Society also sponsors a law journal, The Harvard Journal of Public Policy.  A recent symposium on the financial crisis included an essay by Ron Paul attacking the Fed and one by Richard Epstein bashing Keynesianism and his colleague Richard Posner’s embrace of it.

I’m uncompromising in my libertarianism, but I see nothing at all wrong with conservatives and libertarians coming together in an organization like this to have their voices heard.  It’s not much different than the Libertarian Party teaming up with the Green Party to improve ballot-access laws to get a place at the table — though the Federalist Society seems like a more worthwhile endeavor, since it’s about ideas, not politics.

Which brings me to Roberts’s other claim: that the Federalist Society somehow “put” judges on the bench.  This is absurd.

I don’t know what basis Roberts could have for thinking the Federalist Society wields such power.  Undoubtedly many (but far from all) Republican judges have some connection to the Federalist Society, either as members or as speakers at past events.  But why wouldn’t they?  It’s the only national organization for conservative lawyers and law students out there.  And why would a Republican president need the Federalist Society to choose “fascist” judges for him?  Couldn’t he just pick them himself?  And isn’t he responsible for who he appoints in any event?  And aren’t there many political factors affecting who gets on the bench that have nothing to do with Federalist Society membership?  Like so many other alleged secret conspiracies, this makes no sense.

Libertarians should be glad the Federalist Society exists, and if they’re lawyers or law students, they should get involved and make sure the ideas that are important to them are part of the conversation.  If “fascists” would come to dominate it someday — which they certainly don’t now — it could only be because libertarians weren’t doing their job.