Movin' on Up with the Federalist Society
However, the Federalist Society claims it takes no positions on issues. With its tax-exempt status requiring it to stay away from political activity, it hides behind the notion that it is merely a sophisticated speakers' bureau. "We are not a position-taking organization," Eugene Meyer, the society's executive director, told the Washington Post. (Meyer declined to comment for this story.) "We really are interested in discussion and in getting ideas heard." Even Judge Kozinski, a fairly ubiquitous presence at national events, won't say that he's a card-carrying member. "I'm on the mailing lists," he says. "And whether I attend depends on whether it is something I am interested in." The conservative intelligentsia repeats these lines again and again, as if afraid to say the obvious for fear it will reveal their true agenda. Meanwhile, under the dispassionate guise of a debating organization, the Federalist Society is working to prepare a powerful next generation of conservative corporate lawyers, judges, top government officials and decision-makers committed to fundamental change.
How the Federalist Society became a home for young conservatives is a tale told repeatedly by Federalists in trying to explain that they are not the majority but really a besieged minority. In 1982, the history goes, students at Chicago Law School and Yale Law School felt marginalized by the liberal doctrine and ideology that pervaded the curriculum and student body, and decided to form their own organization. The group named itself after James Madison's eighteenth-century Federalist Party, which allegedly favored decentralized government in its later years; and it rallied powerful faculty advisers to help: then-professors Ralph Winter of Yale, now a senior judge on the Court of Appeals for the Second Circuit, and Antonin Scalia of Chicago, now a Supreme Court Justice. The group operated on a shoestring for about a year, at which time student leaders landed seed money from the Institute for Educational Affairs, overseen by neoconservatives Irving Kristol and the late William Simon. Federalist chapters soon cropped up at the top schools around the country.
Last year the society had annual financing of $3.1 million--a 117 percent rise since 1996. The Institute for Democracy Studies, which has been tracking the society, reported in a briefing paper that about a third of the society's budget comes from right-wing foundations. These include the Sarah Scaife Foundation ($175,000 in 1998), whose chairman, Richard Mellon Scaife, underwrote investigations of the Clintons; the John M. Olin Foundation ($349,404), which funds conservative law programs; the Castle Rock Foundation ($45,000, created with a $36 million endowment from the Adolph Coors Foundation), a supporter of anti-gay-rights groups; and the Charles G. Koch Charitable Foundation ($158,000), which is the creation of Koch Industries, the second-largest privately held company in the United States. Among large law firm donors are Munger Tolles & Olson, a mecca for former Supreme Court clerks, and Gibson, Dunn & Crutcher. The latter's partners have included Solicitor General Ted Olson (who argued the Florida election case for Bush before the Supreme Court); Eugene Scalia (Justice Scalia's son), Bush's nominee to become Labor Department Solicitor; and Miguel Estrada, a nominee to the Court of Appeals for the DC Circuit.
The Federalist Society's staff of thirteen oversees its three divisions, for lawyers, students and professors. The professors' division is relatively small, with only about fifty professors attending its second annual conference in January 2000. Its student division, however, hosts a national convention that this year attracted 250 people to Berkeley's law school, where the topic was "Is Technology Changing the Law?" After panel discussions there are dinners, which are the real reason most students attend. This year, students could meet federal judges Kozinski and Frank Easterbrook of the Court of Appeals for the Seventh Circuit, as well as former independent counsel Kenneth Starr. And fliers abounded inviting students to an annual summer barbecue at Ted Olson's house in Virginia. The Washington staff also helps students plan debates, giving advice on speakers and paying one airfare and hotel stay for every event. With the resources to bring in prominent people, the debates can be the most vibrant events of the school year.
During the summer, the society flies student leaders to Washington for a "leadership conference" to explain how to run a student chapter. A manual warns that liberal students may accuse the group of being part of a "national conspiracy masterminded by the notorious evil genius Irving Kristol." If this occurs, Federalists are advised, "the best solution is to try to portray them as being intolerant bullies and unscholarly." The society emphasizes that the debate format is crucial to "convince people of your viewpoint," and notes that "it is often productive to focus on the legal, rather than the policy or moral, aspects of the issues."
The formula came through in a round-table talk on Bush v. Gore at Seton Hall Law School in Newark on April 17 on "The Process and Substance of Litigating an Election." All panelists except one, Doug Cox, a Federalist practice-group leader who helped represent Bush before the Supreme Court, grappled with fairness issues: voter access, civil rights violations and the propriety of courts deciding elections. Cox, however, had a more legalistic approach, giving summary descriptions of the arguments in the briefs, petitions to the US Supreme Court and oral arguments. "We can definitely conclude that the legal system worked," he said. Though unexciting, he was civil and reasonable; simply by showing up and laying out arguments he appeared open to genteel debate. The other speakers seemed like foils. One top law school professor says she always rejects Federalist invitations for that reason. "The more I am willing to debate [certain right-wing advocates] the more legitimacy I give them," she says.
Often, student Federalists' greatest allies are conservative faculty whose jobs are funded by society supporters like the John M. Olin Foundation, which also gives money to law schools to foster interest in law and economics programs, which embrace ideas of free markets, anticommunism and criticism of the welfare state. At Yale last year, John M. Olin Professor George Priest, who teaches law and economics and serves as the Federalist Society's faculty adviser, received $175,000. Though professors like Priest are few in comparison with the number of moderate and left-leaning faculty, they ardently support conservative students. By contrast, even the best students say liberal professors generally have more students vying for their attention and don't feel the same impetus to mentor. "It's hard to get to know liberal professors in law school unless you are exceptionally persistent," said a former Supreme Court clerk who attended Harvard Law School.