It looks as if the next presidential election—less than a year away—will feature a rerun between two road-tested candidates: President Joe Biden and former president Donald Trump, who at present seem, with all their evident flaws, to push other candidates aside. Not only does Trump lead in the run-up to the Republican primary, but, contrary to many expectations, he seems to have edged into the lead against Biden for the general election.
It is no surprise that columns in the New York Times seek to bolster Democratic fortunes. A recent heartfelt op-ed in the Times by three veteran Trump opponents—George Conway, J. Michael Luttig, and Barbara Comstock—seeks to bolster Democratic fortunes. They insist that re-electing the former president could undermine the Constitution, the rule of law, the independence of the courts, and much else besides. They offer no specifics to document these claims, and maintain a conspicuous silence about any activities of the Biden administration that arguably flout these very principles, such as its overgenerous use of executive orders on such matters as student loan forgiveness and the use of fossil fuels, which undermine the separation of powers; as well as the attacks on conservative Supreme Court justices, coupled with dangerous suggestions by Senator Sheldon Whitehouse of Rhode Island, who has denounced a Code of Conduct recently released by the Supreme Court. Whitehouse proposes: “My ethics bill would create a transparent process for complaints and allow a panel of chief judges from the lower courts to investigate and make recommendations based on those complaints.” But, as the Wall Street Journal noted editorially, this move would inspire an endless array of public complaints, many generated by Whitehouse’s loyalists, to be investigated under uncertain procedures that clearly amount to the politicization of the judiciary and an assault on the independence of the Supreme Court. Just how would those justices operate, knowing that their legal decisions are subject to the review by the judges whose work they are supposed to review? And to whom are these recommendations made, and for what purpose?
The most bizarre claim in the Times op-ed is to point an accusing finger at the Federalist Society (with whom I have worked closely since its inception over forty years ago), as derelict in failing to control the asserted dangerous activities of any planned Trump administration. The charge wholly misunderstands the role that the society has played as an incubator of conservative and libertarian lawyers—who, for all their differences on such key long-standing issues as judicial review and the protection of speech and property rights, will never be mistaken for the progressive rivals.
The distinctive role of the Federalist Society is to steer clear of immediate political controversies that are properly the function of other think tanks and institutes on both sides of the political aisle. That neutral position allows the society to be a platform for both liberal and conservative scholars, judges, lawyers, and public servants to debate various issues on the merits, knowing that the society will take no collective position on any issue once the discussion is over. This long-held policy allowed the society to open itself up to a large number of divergent views long before Trump became a fixture on the legal scene—and long after he departs from it.
For the authors to call nameless Republican lawyers part of “a growing crowd of grifters, frauds, and con men willing to subvert the Constitution” is a classic form of group defamation that reflects more on them than on their supposed targets, who have divergent views on both the abstract merits of a Trump presidency and any choice between Biden and Trump. There is, however, one reason for Conway, Luttig, and Comstock to use an attack on the Federal Society as a forum in which to vent their political positions: these three individuals work with and for other institutions that do take these kinds of political positions.
In this connection, it is instructive to look more closely at the recent proceedings of the Federalist Society that took place before a sell-out crowd in mid-November in Washington, DC, which included debate on the timeless question of “Originalism on the Ground,” which covered the way this doctrine has played out in a variety of different areas—corporations, antitrust, intellectual property, and more. The highlight of the event was the impassioned speech, somewhat out of character for the society, that writer and former New York Times columnist Bari Weiss delivered to thunderous approval in support of Israel in its ongoing war with Hamas, which did not meet with pro-Palestinian protest of any kind. During that speech and at other events, Donald Trump was not a topic of discussion. The one exception was a spirited discussion between Professor Will Baude of the University of Chicago and Professor Michael McConnell of Stanford on whether the strength of the current charges that Trump had “engaged in an insurrection” requires that Trump be kept off the ballot in 2024, which Baude supported and McConnell opposed. That division was somewhat ironic because the three authors of the Times op-ed designated Professor McConnell and Judge Thomas Griffith (who delivered the annual Bork Lecture) as exemplar conservative scholars.
On the Saturday Rosenkranz lunch, I had a spirited debate with Clark Neily of the Cato Institute on the question of whether “States Can Constitutionally Regulate the Content Moderation Policies of Facebook and Twitter.” One reason this debate held the audience was that it pitted a strong libertarian (who insisted that the government keep its hands off the key media companies on the ground that its intervention will only make matters worse) against the rival position in favor of some regulation—in the form of a nondiscrimination rule—that opens the forum to both sides of any issue while allowing the platforms to keep immoral, vulgar, or slanderous material off their sites. As we have learned through long experience, a stronger debate often emerges between individuals who generally have a similar worldview (a presumption against state interference), and thus argue over the circumstances that justify such intervention. I therefore find it deeply ironic that our three authors have called for a return to “fundamental classical liberal tenets of our republican form of government,” which I have long championed.
But when one looks at the website of the Society for the Rule of Law, a skeleton organization that lists the members of the board and some links to recent publications, it becomes clear that the organization has a long way to go to bulk up to be a serious player in the national debate, which must develop a program that will be relevant once Trump leaves the political stage. There is no way that this threadbare website could become the basis for a new organization that fosters new scholarship if its mission is “to counteract the new orthodoxy of anti-constitutional and anti-democratic law being churned out by the fever swamps.” Meaning what? No toleration of diverging positions on abortion, guns, affirmative action, or voting rights?
A telling sign of the nature of this anti-Federalist Society movement is their activities elsewhere. As I have already discussed with respect to the claims of insurrection, there are powerful reason to think that the president who is responsible for the appointment of all officers under the Appointments Clause is himself not an officer who is caught under Section 3 of the Fourteenth Amendment, a position that was affirmed by Judge Sarah Wallace in her lengthy opinion that also held that Trump was, when all was said and done, engaged in an insurrection. Thereafter both former judge Luttig and Professor Laurence Tribe—not your standard-issue conservatives—appeared together on MSNBC to explain that Wallace’s ruling was “simply incorrect” without once explaining why.
Michael Luttig, George Conway, and Barbara Comstock did the Federalist Society a favor when they withdrew from participation in its events. Clearly they do not want to join in reasoned deliberation on matters of pressing importance. The level of polarization in American society is unprecedented. Their writing only raises the heat; it sheds no light on the challenges.
