Asked And Answered: Should I Join FedSoc?
In this day and age, ambitious law students and young lawyers need to pick a ‘team’—which might be unfortunate, but is the reality.
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Welcome to the latest installment of my advice column here at Original Jurisdiction, Asked and Answered. If you have a question for a future edition of A&A, please email me at davidlat at substack dot com, subject line “Asked and Answered: [your topic].”
With the new school year ramping up, today’s request for advice is timely:
Dear A&A,
I’m a 1L at a T14 law school, and I’m writing to ask for your thoughts on whether I, an originalism- and textualism-attracted individual, should join the Federalist Society, given (1) its already-existing reputation among the political left, (2) its seemingly evolving reputation among segments of the right, and (3) the general increase in political polarization and tensions on campuses. I want to join the Federalist Society, but I worry that joining may (1) alienate me from some classmates and (2) harm future job or clerkship prospects.
So what say you: Is FedSoc still the place to go for law students interested in originalism and textualism? Or have increased campus tensions and negative media stories on the Supreme Court and FedSoc sufficiently raised the downsides of joining that you would advise against it? I suspect similar questions may be on many 1L students’ minds right now.
Sincerely yours,
Faint-hearted FedSoc-er
I posed follow-up questions to Faint-hearted and acquired additional information relevant to his situation:
He’s more drawn to public-law subjects like constitutional law and criminal law, as opposed to private-law subjects like contracts and corporate law.
He’s interested in possibly clerking, working as a prosecutor, or serving as a judge someday. As of now, his dream job would be to work for the Office of the Solicitor General (OSG) at the U.S. Department of Justice (DOJ). He’s open to working in Biglaw, but that’s not his main focus or ambition.
In terms of political leanings, he has no party affiliation and considers himself “politically homeless” right now. He described himself as “definitely libertarian-oriented” and “a classical liberal,” in favor of “free markets, free speech, and the strong protection of civil liberties. In general, I think we ought to live and let live.”
Based on his interests and career goals, my bottom-line answer to Faint-hearted is yes, he should join the Federalist Society. But let me unpack my reasoning.1
As an institution, the Federalist Society takes no positions on legal or policy issues—aside from its statement of purpose, which is “to sponsor fair, serious, and open debate about the need to enhance individual freedom and the role of the courts in saying what the law is, rather than what they wish it to be.” In other words, the Society itself is about serving as a forum for substantive debate, even if individual FedSoc members or leaders might work on particular cases or causes—which skew heavily to the right, but not exclusively so.2
And I believe that folks who have actually attended FedSoc events—instead of just reading about the Society, in left-leaning publications—would concur. I agree with what Kannon Shanmugam of Paul Weiss, a leading SCOTUS and appellate advocate, said about FedSoc in his recent (excellent) speech to the Duke Law Federalist Society, “The Legitimacy of the Supreme Court”:
For me, as one of the very few conservative and libertarian law students at top law schools in [the 1990s], the Federalist Society provided a rare forum in which to discuss legal issues with likeminded students. In the decades since, I have made countless friendships through Federalist Society events. But beyond that, in the words of its website, the Federalist Society’s “main purpose” is, and always has been, to promote “fair, serious, and open debate” on the legal issues of the day…. [N]ever has such debate been more essential than it is now.
So returning to Faint-hearted FedSoc-er, given (1) his keen interest in issues of public law, (2) his originalist and textualist leanings, and (3) the fact that he wants to join FedSoc (emphasis his), I believe that he should join FedSoc (emphasis mine)—unless there’s a good reason not to join, to which I now turn.
If he had told me that he’s strongly focused on private law, especially corporate law, and his dream job is to be a Biglaw partner focused on transactional work, then maybe my advice might be different. Biglaw firms are pretty left-leaning these days, so having FedSoc on your résumé could complicate your quest to become a finance or M&A or tax partner at an Am Law 100 firm.
Of course, another option would be to join FedSoc and not list it on your résumé—or list it selectively, only when it’s relevant and helpful to a particular opportunity. I’m told by a current 2L who belongs to FedSoc that student chapters do not make their membership lists public, precisely because of concerns over ostracism and “cancellation.” So a prospective Biglaw employer is unlikely to learn of your FedSoc membership unless you affirmatively mention it.3
My advice might also be different if Faint-hearted had told me, in response to my follow-up questions about his political affiliation, that he’s a registered Democrat. To be sure, because FedSoc is a non-partisan organization—and actually prohibited from engaging in partisan political activity, as a 501(c)(3) organization under the Internal Revenue Code—there’s no inherent conflict between being a Democrat and being in FedSoc. But in our politically polarized age, the unfortunate reality is that it’s harder to secure certain elite professional opportunities—e.g., Supreme Court clerkships, top jobs at the DOJ, federal judgeships—if you’re not on the right “team.”
And if you play for “Team Blue,” then FedSoc on your résumé could be a problem. Imagine someone on president-elect Kamala Harris’s transition team, trying to fill coveted Justice Department jobs, or a lawyer in the White House Counsel’s Office in a Harris Administration, seeking potential judicial nominees. If that person sees your résumé with FedSoc on it and one of comparable strength that’s FedSoc-free, they’re going with the other résumé.4 [UPDATE (2:10 p.m.): See what I posted in the comments about why the “leave it off your résumé” approach doesn’t work for political-appointee jobs and judgeships.]
That is not, however, the situation of Faint-hearted FedSoc-er. Although he’s not registered with either political party, given where the parties are right now, someone who is “libertarian-oriented” and “a classical liberal” is effectively a member of “Team Red,” at least for careerist purposes. As a practical matter, he’s more likely to get clerkships with Republican appointees, land a job at OSG in a Republican administration, or get nominated to the federal bench by a Republican president. And FedSoc, which is a powerful networking resource in conservative and libertarian circles, will help him in his professional advancement.
So that’s my advice. There are aspects of it that depress me—but in giving career advice to people, my philosophy is to accept the world as it is, not as it should be.
Readers, what do you think? Please share your thoughts in the comments.
Disclosures: I was vice president of the Yale Federalist Society in law school, back when I was a conservative Republican and before I drifted leftward; I’m sympathetic to textualism and originalism as interpretive theories; and I participate from time to time in FedSoc events (sometimes advancing a “conservative” position, sometimes a “liberal” one, and sometimes neither). For participating in these events, I’m paid the Society’s standard honorarium—which is less than my standard speaking fee, but I’m fine with this because FedSoc gave me paid speaking opportunities before pretty much anyone else, so I consider them grandfathered legacied in. In addition, many FedSoc events are at law schools, and I believe the children—er, the law students—are our future. I don’t view my participation in FedSoc events as disqualifying me from opining on the Society—and I haven’t hesitated to criticize FedSoc when I feel it’s warranted (see, e.g., the #5 most-read article here at Original Jurisdiction)—but with the benefit of these disclosures, you can decide for yourself what weight to give my views.
When renowned Supreme Court advocate Ted Olson, a longtime member of the Society (and its Board of Visitors), was arguing in the courts for marriage equality, some FedSoc members opposed to his efforts called upon the organization to condemn his work or to expel him. The Society did neither.
Yes, some student FedSoc chapters will post the identities of their officers online. If you’re enthusiastic enough about FedSoc to become a board member, suggesting that it’s an important part of who you are, then you shouldn’t hide it—because you probably don’t want to work at a place that would hold the affiliation against you.
As Judge Stephen Vaden put it during our podcast conversation, responding to my closing question about career advice, you should be “honest about who you are… and only go to those [employers] who are willing to accept you for who you are.” And I agree with his advice, to a point: if your FedSoc-y leanings are important to who you are, then be open; if they’re a small part of your identity, and you really just want to be a funds partner at Kirkland, then feel free to not mention them.
Team Harris won’t even bother bringing you in for an interview so you can attempt to explain that you joined FedSoc “for the debates”—à la men who used to read Playboy “for the articles.” It might very well be true, because FedSoc does put on excellent debates—just as Playboy published some quality articles over the years. But that’s the reality, whether it’s fair or not. (As for the free food at FedSoc events, you can attend the talks—and enjoy the food—without being an official member.)
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As I approach my 35th anniversary practicing law, I would tell young people to pursue every avenue of interest without worrying if it fits their pre-conceived career path. The truth is that for most people that path will change as they move through law school and the early stages of their career. For the few that are laser-focused on a clerkship and then partner-track jobs at Biglaw or teaching at a top law school, I suppose your advice is right, but seems foolish for this young person to not pursue this because of its potential affect on their future employment.
Another factor to consider is the culture of the Federalist Society chapter at the school. Some (a minority of chapters, in all likelihood) seem to delight in “triggering” or “trolling” the libs, while others make a concerted effort to hold events that will appeal to students across the political spectrum. There will be far less of a threat of ostracism and “cancellation” within the law school community if the school’s chapter falls into the latter category.