With the Bush Administration continuing to fill the federal courts with right-wing judges, liberals have turned with renewed vigor to a strategy that not only allows them to defeat individual nominees but also to raise awareness and activism, particularly among the next generation of lawyers. Supreme Court Justice Ruth Bader Ginsburg will step into the debate this summer, when she addresses the first-ever national convention of the American Constitution Society, an organization founded, as the group’s executive director David Halperin explains, to “encourage students and others to care about and influence a progressive vision of the law.”
The coup of getting Ginsburg to speak at their gathering was no small accomplishment, but ACS already has the support of a number of other well-known liberals, including Harvard law professor Laurence Tribe, former New York Governor Mario Cuomo, former solicitor generals Walter Dellinger and Drew Days, and former Circuit Court of Appeals Chief Judge, White House counsel and Congressman Abner Mikva. As a result, in little more than a year, the group has more than seventy chapters, designed to provide a nucleus of support and activity for progressives on law school campuses and help them better engage in intellectual battles over legal and public policy. (One group of Georgetown law students affiliated with ACS submitted an amicus brief to the Supreme Court in support of the University of Michigan’s affirmative-action policy in the recently argued case.)
While the group’s focus is unabashedly liberal, it’s not the first public-interest organization to appreciate that recruitment on campuses can have dramatic consequences in the political arena, including in judicial selection. Indeed, in building its fledgling network of law students, ACS has unapologetically taken a page from the conservative playbook, specifically the ultraconservative group of lawyers and law students known as the Federalist Society.
For twenty years, the Federalists have built a feeder system in the courts and government for young ultraconservatives, along the way helping to move what historically has been a narrow, minority view of the law and legal policy into the vanguard of political and legal debate. Today, the Federalists’ fingerprints are all over the Bush Administration’s hard-right agenda, and some of its loudest cheerleaders are prominent Bush advisers and appointees, including Attorney General John Ashcroft and Solicitor General Ted Olson, who argued against the University of Michigan’s affirmative-action policies before the Supreme Court. Justice Antonin Scalia is also a Federalist Society stalwart and has lent his presence to the cause.
There is an important distinction between the Federalists and ACS that goes beyond political orientation. While the Federalists remain focused on theory, the ACS goals are more activist, centering on the human consequences of judicial decision-making as well as its legal underpinnings. At a November ACS event at Georgetown Law School, for instance, former US Attorney Doug Jones recounted the challenges of bringing to justice those responsible for the 1963 Birmingham church bombing forty years after the fact, with a central theme being the principle that it’s never too late to seek justice. Similarly, a program on conservative judicial activism, which featured speakers including Senator Hillary Clinton and Federal District Judge Robert Pratt, went beyond polemic and addressed the values underlying their criticisms, including the importance of protecting the rights of our most vulnerable citizens.
These are not sentiments you’d hear at a Federalist Society meeting. Nadine Strossen, a law professor at New York Law School and president of the ACLU, who has been a panelist at both Federalist Society and ACS events, says that the Federalists “seem more oriented toward intellectual discourse and a discussion of conservative doctrine than they are on doing good or helping people.” The broader progressive sensibility clearly resonates with a large and untapped group of students nationwide eager for a dose of liberal activism. Rigodis Appling, one of the student founders of an ACS chapter at New York Law School, says she’s seen a real change “from the conservative overtones and the reluctance to speak out” that was present “particularly after 9/11.”
With a budget only about half the size of the Federalist Society’s approximately $3 million a year, the ACS faces an uphill climb. But with a number of major benefactors, including the Open Society Institute, the Deer Creek Foundation and the Sandler Family Supporting Foundation, ACS is closing the gap. It’s a success that can be measured not only by the support it is drawing from liberals but also by the attacks it is receiving from conservatives, such as a recent Federalist Society fundraising letter, which assailed “a new challenge” of liberal opposition and called upon its own chapters to conduct active programs “lest the high profile speakers of the ACS drown them out.” Let the debate begin.