Just hours after President Trump announced his pick of Brett Kavanaugh for the Supreme Court, Senate Minority Leader Chuck Schumer took to the floor to denounce the choice because Trump picked him “from a list of 25 people who were vetted and approved by the Federalist Society.”
Soon after, New Jersey Democratic senator Bob Melendez joined in: “I cannot support a nominee culled from the right-wing wish lists of the Federalist Society.”
During the Senate Judiciary Committee’s first day of hearings on Kavanaugh’s nomination, Sheldon Whitehouse of Rhode Island said the Federalist Society had recommended his nomination, as it had that of Neil Gorsuch. “That should give every senator pause,” Whitehouse said.
All of which has inspired many Americans to ask: What the heck is the Federalist Society?
Far from being a semi-secret society conspiring against the U.S. justice system, the Federalist Society is actually a high-profile organization comprising 68,000 conservative and libertarian law students, attorneys and academics. Founded in 1982 by students at the law schools of Harvard, Yale and University of Chicago, it now boasts student chapters at more than 200 law schools and an additional 60-plus lawyer chapters in 80 cities around the country.
What is it about the Federalist Society that makes Senate Democrats pause? The organization has grown into an important networking tool for promoting the careers of rising young attorneys and jurists who share its “originalist” view of the Constitution.
The Federalist Society’s success advancing the originalist legal theory has been nothing short of dramatic. University of California, Berkeley, law professor John Yoo, a former Justice Department official in the George W. Bush administration, recently said: “When Antonin Scalia first joined the Supreme Court, originalism was a laughingstock at elite law schools. By the time of his death, any elite school that didn’t have at least two or three serious originalists on its faculty was itself a laughingstock.”
The last time the Senate considered filling a vacancy on the high court (with Neil Gorsuch’s nomination in 2017), Senator Whitehouse demanded the Judiciary Committee hand over any and all documents related to the Federalist Society’s executive director. Whitehouse and fellow Democratic senator Dick Durbin of Illinois even attacked the organization as a kind of judicial Svengali seducing a willing President Trump into doing its bidding.
But claims that it’s a “shadow group” secretly pulling strings behind the scenes just don’t hold up. Far from on the fringe, every justice now sitting on the nation’s highest court has spoken at Federalist Society events, including liberal icon Justice Ruth Bader Ginsburg.
And it doesn’t stop there. The Federalist Society’s student branch held its national jamboree in February 2005 at Harvard Law School. According to attendees, then Harvard dean — and future Supreme Court justice — Elena Kagan began her welcoming remarks by roaring in her famous New York accent, “I love the Federalist Society!”
While she reminded the group that she and they disagreed philosophically, at no point did she scold it for trying to secretly hijack our nation’s judicial system.
Republican senators have been critical of the performance of their Democratic counterparts during the committee hearings on Kavanaugh’s nomination. Sen. Lindsey Graham of South Carolina, for example, objected to characterizing the hearings as a “circus” because, he said, “that’s unfair to circuses. Circuses are entertaining and you can take your children to them.”
Far from believing he is outside the judicial mainstream, the American Bar Association said Kavanaugh is “unanimously well qualified” for the Supreme Court.
None of this explains Democrats’ attacks on the Federalist Society. Perhaps they’re aware that, the same week Washington was obsessed with the Kavanaugh “circus,” the GOP-controlled Senate confirmed President Trump’s 68th judicial nominee. A vote is expected to confirm Kavanaugh to the court later this month, and after a week of hearings, analysts widely expect him to win the Senate’s approval, as no missteps were made.