Archive | Federalist Society

My own Kagan experience

Elie Mystal, who graduated from law school at the same time as I did, has bad memories of Elena Kagan from when he had her for Civ Pro as a 1L. [UPDATE: Read The Whole Thing, the commenters remind me to say.] For what it’s worth, here are my own impressions of Elena Kagan:

  • I had Kagan for Administrative Law in Spring 2002. She showed sound judgment early on by giving me a high grade in the class, and wrote me a very gracious letter afterwards (which no doubt will fetch a high price on eBay) in which she added, by hand: “I loved everything you said in class. Thanks for making things interesting. EK”.

Slightly more substantively:

  • I enjoyed her class a lot, and she was very good at eliciting all the relevant points of view through questioning. I recall saying some fairly libertarian stuff in the class, which she welcomed.
  • My scribbled Admin notes for Tuesday, February 12, 2002, say the following. (This was after a discussion of Myers, Humphrey’s Executor, and the “unitary executive theory.”) “Kagan thinks this is all total garbage — so manipulable. Pitch for honesty: everyone needs one area where policy views ≠ constitutional views. Kagan is a total unitarian for policy reasons. But doesn’t think this is a constitutional command. The constitution says so remarkably little that to take this issue away from political decisionmaking is a mistake — courts shouldn’t make these decisions.”
  • As has been well documented elsewhere, as dean, Kagan was a good friend (though not a fellow traveler!) of the Federalist Society and of conservative/libertarian professors.
  • In particular — and despite her presumably pro-gun-control views (see the David Kopel post below), she was a good friend of the HLS Target Shooting Club, which I founded
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Elena Kagan: “I LOVE the Federalist Society! I LOVE the Federalist Society!”

Charles Fried tells part of the story about Elena Kagan’s appearance at a Federalist Society dinner at Harvard a few years ago:

In February 2005 the student branch of the Federalist Society (a group founded in the early ’80s to explore and promote conservative and libertarian perspectives on the law) held its national jamboree at Harvard Law School. At the banquet in a downtown hotel, Kagan rose to speak the host institutions’ words of greeting to the thousand or so federalists assembled from every corner of the country. She was greeted by a long and raucous ovation. With a broad grin and her unmistakable Upper West Side twang, the former Clinton White House official responded: “You are not my people.” This brought the dark-suited crowd of federalist students to their feet in a roar of affectionate approval.

Fried leaves out enough of the story that it becomes incomprehensible. Why would the Federalists cheer someone seemingly insulting them by saying, “”You are not my people”? What Fried forgot (or chose to omit) were Kagan’s two lines immediately before her disclaimer.

On the night of Fried’s story, in a very large banquet room I was sitting next to Frank Easterbrook, perhaps 15 or 20 feet from Elena Kagan. She began her welcome by booming out:

“I LOVE the Federalist Society!”

Kagan paused for emphasis and then repeated,

“I LOVE the Federalist Society!”

As I recall, after applause Kagan’s next line was:

“But, you know, you are not my people.”

The crowd indeed loved it. But without Kagan’s opening lines, Fried’s affectionate account in the New Republic makes little sense.

Kagan then went on to explain why she loved the Federalist Society — chiefly, its contributions to the intellectual lives of American law schools and its commitment to open debate. She talked about [...]

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“Federalist Society Types” Were Committed to Judicial Enforcement of Federalism Long Before Obamacare

University of Colorado Law Professor Paul Campos decries what he calls “the recent conversion of so many Federalist Society types to the virtues of aggressive judicial review of legislative enactments” in the wake of the enactment of Obamacare. Campos’ claim of a “recent conversion” could hardly be more wrong. If there’s one thing that most “Federalist Society types” have been consistent about over the years, it’s judicial enforcement of, well, federalism. For years, many of us have repeatedly argued for stronger judicial enforcement of the limits to Congressional power under the Commerce Clause and the Tax and Spending Clause, the two provisions most commonly cited as constitutional authorizations for the Obama health care bill. That’s why we defended decisions such as United States v. Lopez and United States v. Morrison and decried cases such as Gonzales v. Raich.

For example, I’m a member of the Society and also sit on the Executive Committee of its Federalism and Separation of Powers Practice Group, the branch of the Society that most directly focuses on these issues. I’m also a constitutional law scholar who writes extensively on federalism. And I have consistently argued for strong judicially enforced limits on congressional power in both fields, including with respect to policy initiatives favored by Republican administrations, such as the War on Drugs, the federal ban on partial birth abortion, and others. Most of the other people who are members of the Practice Group leadership hold at least roughly similar views to mine on these issues. The same goes for the majority of the Federalist Society-affiliated conservative and libertarian scholars who have written on these matters for the last 15-20 years or longer.

On these questions, as on many others, there is a diversity of opinion in Fed Soc circles and [...]

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How the “Independent” Fourth Estate Has Failed in its Critical Duty

Fourth installment in a five-part series on Silverglate’s book, Three Felonies a Day: How the Feds Target the Innocent.

In a discussion on WAMU Radio yesterday, host Kojo Nnamdi noted that vagueness in the federal criminal law has recently made “strange bedfellows” of the political left and right. This same “emerging consensus” was also the subject of an insightful November 23 article by Adam Liptak, The New York Times’ Supreme Court reporter.

What has occasioned this coming together? As I mentioned here on Monday, individuals and organizations of all political stripes are realizing the danger to all when prosecutors are empowered with exceedingly broad and—worse—hard-to-define federal laws. A diverse coalition of groups—including the Heritage Foundation, the Federalist Society, the Cato Institute, the National Association of Criminal Defense Lawyers, and the ACLU, among others—have been sounding a clarion call against this species of executive expansion. They have pointed out that, from webmasters to fund managers, no segment of civil society is safe.

But this phenomenon is not new. As I document in Three Felonies a Day, the proliferation of vague laws—and prosecutions under them—began in the mid-1980s. Why has widespread recognition, especially from the American public, taken so long?

For one thing, the Department of Justice has a very effective public relations machine. With every major indictment, there is a press release and, not infrequently, a press conference that major national media typically attend with bated breath. Flanked by FBI, IRS, DEA, SEC, and members of the other myriad supporting agencies, prosecutors feed reporters the government’s side of the case, often a matter of hours after a hapless defendant has been rousted out of bed and paraded in the infamous “perp walk” (much to the delight of press photographers [...]

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Addressing the Most Important Weakness of Conservative-Libertarian Public Interest Law

I recently renewed my membership in the Federalist Society, and got a mailing asking to sign up with the Fed Soc Pro Bono Center. I was only vaguely aware of this organization’s existence, even though it is a potentially important effort to address the most important shortcoming of conservative and libertarian public interest law. Perhaps it will be more successful in that effort, if more people learn about it.

Over the last 30 years, conservative and libertarian public interest firms such as the Institute for Justice, the Center for Individual Rights, and the Pacific Legal Foundation have mounted a strong challenge to the previously dominant legal left, and won some important legal victories for property rights, economic liberties, and limits on government power. However, right of center public interest law suffers from a key weakness: the paucity of lawyers available to conduct follow-up litigation to enforce favorable precedents. Even the most important federal and state supreme court decisions don’t change the legal landscape all by themselves; they usually require extensive follow-up litigation to make sure that government officials comply and that their principles are enforced in other cases where similar issues come up. Often, the people victimized by government violations of constitutional rights are poor, politically weak, or unable to engage in protracted litigation to vindicate their rights. This is true in the area of property rights, and many others of interest to libertarians and conservatives. Left-liberal scholars and activists have long understood this crucial lesson, and they have created an extensive network to facilitate follow-up litigation to enforce their high court legal victories. In almost every major law firm, there are lawyers who do small-bore pro bono cases on behalf of various left-wing causes. These cases often build on and enforce favorable appellate [...]

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Is Federalist Society Membership an Obstacle to Getting Law Firm Jobs?

The ongoing discussion over the law firm partner who decided to reject all job applicants with Federalist Society membership raises the question of how common discrimination against Federalist Society members really is in the law firm world. The only real way to get a definitive answer to this question is to look at systematic data comparing the success of job applicants who reveal their Fed Soc membership with that of applicants who have similar credentials, but are not Fed Soc members (or conceal their membership). In the absence of such data, all we have are conjectures. Here are mine:

Overall, I doubt that Fed Soc membership is a big obstacle to getting law firm jobs. This is likely to be so for three reasons. First, law firm partners are usually focused on the bottom line. If they reject good conservative or libertarian applicants in favor of inferior liberal ones, their pocketbook is likely to suffer. Anyone who has ever worked at a big law firm knows that partners hate it when that happens. Those few who are indifferent to profits are unlikely to stay in business for long. Second, surprising as it may be, many practicing lawyers simply don’t care about politics as intensely as academics and political activists do. They may have political opinions, but those opinions aren’t a major part of their lives. For such people, hiring associates who disagree with their political views isn’t a big deal because they don’t care about politics that much in the first place. Of course this isn’t true at all law firms. There are some that are intensely political, especially here in Washington. But it’s true of enough of them that the applicant with unpopular political views will still have a wide range of firms to choose from.

It’s also worth [...]

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The Ethics of Discriminating Against Federalist Society Members For Law Firm Jobs

Randy Cohen’s The Ethicist column in the New York Times responds to the following reader question:

While interviewing law students for jobs as paid summer interns and full-time associates for my firm, I noticed several had résumés listing their activities in the Federalist Society. Some of my partners have conservative views similar to those of the society, but I do not. These students’ politics would not affect their professional function, but my review is meant to consider their judgment and personality (though I don’t need to give reasons for the assessments given). May I recommend not hiring someone solely because of his or her politics?

Cohen concludes, fortunately, that the answer is “no.” He then adds this update: “Believing that all the applicants were qualified, but able to hire only a few, this person recommended rejecting each member of the Federalist Society.” Hat tip: ATL.

UPDATE: I urge all Federalist Society members working at law firms to take immediate counteraction. Specifically, if you are reviewing resumes of potential laterals and you come across a resume from Mr. Name Withheld from Greenwich, CT, don’t hire him. [...]

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