Monday, October 17, 2022

Of the Federalist Society and Civil Discourse

 By Eric Segall

Over the course of the next few weeks, I will be participating in a virtual debate with Professor Ilan Wurman over the alleged return of living constitutionalism (it never went away) for the national student section of the Federalist Society, and then will be talking about affirmative action at a panel at the National Federalist Society Lawyer's Convention (with Michael Carvin among others, so watch out). Many of my progressive friends in the academy will not speak at any Federalist Society events, some will speak only at events sponsored by the students at their schools, and some agree to speak if they are interested and available. In the first two categories are prominent folks I respect quite a bit so I have given much thought to my participation in Federalist Society events. When I announce these programs on Twitter or other places I sometimes get serious pushback, so I wanted explain my reasoning for participating in these programs, and at the same time suggest something important I have been seeing at these events over the last couple of years.

First, I don't think many people have been as vocal as I have been at criticizing the national Federalist Society leadership for not admitting that, contrary to their protestations on their website, they clearly support people (judges) for public office. I wrote an op-ed in the New York Times with Caroline Fredrickson on this point, and when I speak at Federalist Society events I ask them politely not to say the organization doesn't support people for public office (as they used to say regularly) and so far my request has been granted every time. I have been quite clear that the Society should change its website and admit that the organization in many ways quite clearly supports candidates for public office. I won't rehash those arguments here.

Second, it has always been my belief that the best way to change hearts and minds is engagement, not boycott. Over the years, I have been on panels with a number of conservative or libertarian federal judges and, this may be absurdly self-deceiving, but when I talk about how we would all be better off with a far more deferential system of judicial review, I feel that they at least are interested in that perspective from a self-identified progressive who thinks much of the Warren Court era was a mistake (just like the Roberts Court era is a mistake). I also think this idea gets students and lawyers to reflect more deeply on the problems caused by strong judicial review and the Court that isn't one. Sharing those views only with people who share my politics feels just a bit short-sighted.

Third, my experience at these Fed Soc debates and panels overall has been quite positive. I like debating people with different views and many of the folks I engage with are friends. I would lose something important if I decided to stop participating in these events.

I understand the argument that, as a fairly self-identified progressive, I give these panels a patina of credibility that makes some folks on the left nervous and troubled, I have several responses. First, and I'm just being realistic here, my participation really doesn't matter much to anyone. Folks like Mike, or Erwin Chemerinsky, or Jack Balkin, etc., would present a stronger approval of the Federalist Society that might cause some folks to wonder but I don't have that swag so the pushback I get is really a lot of noise without much substance.

Moreover, there is a huge difference and even a growing disconnect between the Federalist Society leadership (especially Leonard Leo) and the rank and file students, lawyers, and law professors who make up the organization. At several events over the past year, I have heard from numerous Federalist Society members how much they: 1) dislike Trump; 2) have concerns about the Leadership's direction; and 3) think the national organization should come clean about its involvement in picking judges and the whole pipeline from schools to clerkships. Sometime these issues come up during the programs and my strong views on them have been received with politeness, respect, and at times even acceptance. If I can make a bit of a difference on these issues, I think I should.

I get that all of this might sound like self-serving rationalizations for supporting an organization whose goals I disagree with and whose leadership I feel harms America in many ways. And if I were asked to debate issues such as whether the election was stolen or are liberals threatening America, etc., I would decline. But discussing and debating with smart people the constitutional issues of the day, whether they be abortion, affirmative action, or faux and fake originalism, makes me smarter and gives me important perspectives that I might not otherwise be exposed to. And, for what it's worth, my own students definitely benefit from my direct exposure to views different from my own.

But at the end of the day, there are two major reasons I continue to participate in Federalist Society debates. I have a strong intuition that it is better to face your opponents directly, create personal relationships, and try to find common ground with those you disagree with than just ignore or avoid them. And second, my participation is not symbolically important enough to make any difference to anyone who thinks the Federalist Society should be marginalized. So, for me, and without judging other people's decisions, I will continue my participation in these events. It feels like the right thing to do.