OPENING UP THE LAW SCHOOLS: Why The Federalist Society Is Invaluable To Robust Debate

By MARCI HAMILTON


hamilton02@aol.com
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Wednesday, Apr. 25, 2001

The Federalist Society was founded in the law schools, is dedicated to debating about the important legal issues of the day, and has significantly increased its membership since it was founded in 1982. Recently, the Society, which attracts many conservatives, has increasingly been recognized for its connections to those currently in power. And no wonder: Republicans now control both the White House and Congress, and their appointees dominate the Supreme Court, which is helmed by a Republican appointee. As a result, conservative points of view frequently prevail in our laws, our judicial opinions, and our President's addresses and actions — as they should, since conservatives have been democratically elected and properly appointed, based on the public's endorsement of the views they hold.

[Federalist Society]

Yet while the Federalist Society's impact on politics and law is profound, in the law schools (and the press), the Society — and the points of view it encourages to be aired — are still embattled and marginalized. Meanwhile, even extreme liberal viewpoints are promulgated as objective truth.

To cite just a few recent examples, Professor Bruce Ackerman, of Yale Law School, continues to preach that the Democrats in the Senate should shut down the judicial appointment process, claiming perversely that because he did not approve of the current Justices' decision in Bush v. Gore, there should be no new Justices while Bush is President. And Professor Larry Kramer, of New York University School of Law, has suggested with all seriousness that the constitutional end is near, merely because the Supreme Court has restored a marginal amount of power to the states.

If it sounds as though law schools are out of touch with political reality (and with many of their students and alumni, not to mention Washington), that is because they are. The law schools are educating to the beat of a very different drummer. Their decision to do so cramps full debate, threatens to render the law school curriculum irrelevant, and harms the students, who go through law school with closed minds and then graduate to confront a legal landscape that embodies views on which they have not been fully educated.

In Law Schools, Liberal Orthodoxy Rules

Every academic field has its orthodoxies, and the legal field is no different. But in the law schools, orthodoxy is drawn according to political lines. Liberal is correct, conservative is suspect.

What this means is that the vast majority of law school professors are hostile to, or at least opposed to, the vast majority of federal executive, legislative, and judicial legal developments. The situation is particularly stark on constitutional law issues, where the array of views appears even more lopsided.

Law school classrooms typically hearken back to the Warren Court — many of the decisions of which are now modified. Too often, professors treat that Court's rules as "the correct law," and the last decade or so of conservative decisions as outliers deserving a scornful sense of superiority, a quick back of the hand, and an assumption that they are not really binding. For example, I recently spoke at an educational seminar for federal judges and listened as a highly respected legal scholar argued that they should dismiss the majority in a recent Supreme Court case and instead train their judicial attention on the dissent.

Students hear the political and moral message loud and clear, and do what students do in most situations: accept the professors' shared wisdom as true while they question their own contrary intuitions. This viewpoint domination is clear not only in the classroom but also in the law reviews that publish works in part based on their professors' recommendations. While every law professor has a right to his or her own viewpoint, one wonders what law students must think when the legal landscape post-graduation is so alien, and the legal paradigms they learned, so outdated.

The Federalist Society's Purpose and Expansion

Enter the Federalist Society. It was on account of law schools' intolerance of non-liberal viewpoints that its founders came together.

They came together, however, not to propagandize conservative viewpoints but to encourage debate — reasoned discussion of the different sides of issues. Contrary to the attempts to paint the Federalist Society as an evil cabal subverting democracy, it is the only law school organization with the purpose of encouraging debate. And it has succeeded on this front admirably.

The Federalist Society sponsors fora on every conceivable, cutting edge legal topic, and invites equal numbers of conservatives and liberals to debate these topics. The debates are marked by civility, despite the differences expressed, with the Society encouraging reasoned dialogue, not ranting. There is no orthodoxy in the organization and no litmus test for membership. Indeed, the members' views are so diverse across so many issues, it would be a futile task to describe "a Federalist Society philosophy." Rather, there is a conscious attempt to expand legal debates beyond the one-sided liberal perspective that has festered in the law schools.

The Federalist Society Is a Haven for Law Students

Because of the intolerance of conservative views in the law schools, many students who would have joined the Federalist Society probably do not do so, out of fear that they will be judged poorly by their peers, their professors, and those interviewing them for jobs.

Think of it from a conservative student's perspective: Here is a forum where they are permitted to explore views that are not orthodox in the classroom. Without the Federalist Society, they are left to smile and nod their way through law school discussions. Even if students do not join, they can take advantage of the Society's offerings, because the events are widely publicized and open to the public.

In all fairness to the law schools, there are a few where conservative views are not alien, such as Northwestern University, the University of Virginia, George Mason University, and the University of Chicago. Those schools stand out from the rest, not because conservatives are the dominant voice, but rather because there is a conservative voice that is taken seriously in the building.

That the Federalist Society is now in the news bodes well for society in general. Any organization that sponsors debate on matters of public importance, as opposed to self-serving indoctrination, is healthy for us all. And once the members of Congress and the people become better informed on the Society's actual mission of enlarging legal debate — and better able to reject stereotypes of the Society -- one can hope that the rumblings against Bush Administration nominees merely because they are Society members will cease.

Merit, not membership in any particular society or organization, should be the criterion of appointment to government service. Like the Federalist Society, a standard of excellence would send the salutary message to all, and especially ambitious law students, that the tough issues in society require a supple mind open to a myriad of arguments.


Marci Hamilton is Thomas H. Lee Chair in Public Law at Benjamin N. Cardozo School of Law. After thinking about it for 14 years, she joined the Federalist Society in the year 2000. Her e-mail address is Hamilton02@aol.com.

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