The Federalist Society And The Capitol Attack: What Is To Be Done?

Will all the behind-the-scenes drama and soul-searching take FedSoc to a better place?

Left to right: Sen. Josh Hawley (R-Mo.) and Sen. Ted Cruz (R-Tex.) (public domain photos).

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The January 6 attack on the U.S. Capitol has prompted some long-overdue soul-searching in many quarters, as well as some changes of heart. Certain Republicans who have supported (or at least tolerated) Donald Trump for years have turned on him, after his incendiary remarks at a rally helped incite the mob that attacked the Capitol. Prominent organizations and companies that previously supported Trump or aspects of his agenda have also parted ways with him or even called for his removal.

And organizations that have not said anything publicly in the wake of the Capitol riots are engaging in introspection behind the scenes. One such organization is the Federalist Society for Law and Public Policy Studies, aka the Federalist Society or FedSoc, the nation’s premier group of conservative and libertarian lawyers and law students.

On the left, the Federalist Society is viewed as the Evil Empire — or, in the words of Sheldon Whitehouse (D-R.I.), “a vehicle for powerful interests seeking to ‘reorder’ the judiciary, under their control, so as to benefit their corporate, right-wing purposes.” Conservatives would take issue with this, defending FedSoc as primarily a forum for robust debate that can’t take place elsewhere in the left-leaning legal world. But both critics and supporters of the Society would probably agree with what Michael Kruse of Politico wrote in his 2018 profile of FedSoc: it is “one of the most influential legal organizations in history — not only shaping law students' thinking, but changing American society itself.”

The Federalist Society is a nonpartisan organization that does not — and cannot, as a 501(c)(3) nonprofit — endorse candidates for elective public office. It therefore has no official relationship with Donald Trump. But its members and leaders, in their personal capacities, have played major roles in the Trump Administration’s handling of legal and judicial issues. Most notably, Leonard Leo, the Society’s former longtime vice president and current co-chairman of its board, exerted great influence over Trump’s judicial nominations, including his Supreme Court picks. By one count, an estimated 85 percent of Trump judicial nominees are or have been affiliated with FedSoc. As a result, the Federalist Society is very much associated with Trump in the public imagination.

Unfortunately — and quite reprehensibly — several prominent FedSoc figures played roles in Trump’s baseless challenge to the 2020 election results, and therefore bear significant blame for the Capitol attack. Law professor John Eastman — chair of FedSoc’s Federalism and Separation of Powers practice group, and a frequent participant in Society events over the years — represented Trump in his (meritless and unsuccessful) attempt to get the Supreme Court to intervene in the election, urged Vice President Mike Pence to overturn the election results, and had a prominent speaking role at the rally that was the precursor to the riots. Senator Josh Hawley (R-Mo.) and Senator Ted Cruz (R-Tex.), two members of what conservative law professor John O. McGinnis once dubbed “the Federalist Society caucus” — a group of senators with strong, longstanding ties to FedSoc — led the charge in the Senate against certification of the election results, just hours after the horrific Capitol attack. In light of all this, a reckoning at the Federalist Society is in order.  

Publicly the Society has not commented on the siege of the Capitol or related matters. When Mark Joseph Stern of Slate asked FedSoc if it had any comment on the role played by Eastman in the Capitol riots, the Society had no comment. Nor did the Society respond to the call by Demand Justice, a progressive organization focused on the courts, for corporations to stop donating to the Society.

I have learned that outside the public spotlight, however, Federalist Society leaders, members, and staff are engaged in vigorous debate about what, if anything, the Society should do in the wake of the Capitol attack. Since January 6, many longtime FedSoc members have urged the organization’s leaders and staffers in D.C. to take tangible action in response to the abominable attack on the rule of law represented by the siege of the Capitol.

On January 8, Jeremy B. Rosen — a leading California appellate lawyer, former president of the Los Angeles Lawyers Chapter of the Federalist Society, and former Trump judicial nominee (C.D. Cal.) — sent an email message to FedSoc president and CEO Eugene Meyer, general counsel Dean Reuter, and vice president Lisa Ezell, with the subject line “Concerns re Federalist Society.” After emphasizing his longtime involvement with and support for the Society, Rosen wrote:

Recent events… have me extremely troubled about the direction in which the Federalist Society is heading. While I embrace spirited debate and do not believe in the left’s cancel culture instincts, I do believe there is a line that cannot be crossed — insurrection and incitement to undermine the rule of law and our constitution…. 

[O]ne of the major causes of this incitement, John Eastman, remains prominently at the head of one of our most significant practice groups and a frequent speaker at our events. And Senators Cruz and Hawley are longstanding members and frequent speakers. I am sure there are others who acted similarly and are in our leadership and speaker ranks.

I think that the Federalist Society must take a stand to remove anyone from leadership and to take away the legitimacy of our public forums to anyone who participated in this attack on the rule of law and our constitution. If we cannot take that stand, then what have we been fighting for all of these years? I know that I speak for many members and leaders of the Federalist Society in bringing these concerns to you.

Perhaps unsurprisingly, Jeremy Rosen’s email has been making the rounds within FedSoc circles. After receiving a copy, I reached out to Rosen, who confirmed its authenticity but declined further comment.

Rosen’s concerns are shared by many. For example, here’s what Gregg Nunziata, another prominent and longtime member of the Society, told me in a recent interview:

As we process what happened last week, we need to reflect on how we got here — and how we can get out of this place. The Federalist Society, as an organization and as a community, has some necessary soul-searching to do.

Obviously the organization includes people who disagree on many things. But we share core convictions about truth, the rule of law, and the Constitution. The organization and its members should be able to speak up strongly in support of those values — and confront the fact that some members of the Society went wobbly on all three of those values, when it most mattered to the country.

Along similar lines, here are thoughts from law professor Irina Manta — a regular speaker at FedSoc events with long ties to the organization, dating back to her days as a law student (when she unsuccessfully ran against Josh Hawley for president of the Yale Federalist Society):

The Federalist Society doesn’t normally issue policy statements. But in light of recent events, I think the organization should explicitly distance itself from any individuals who have played a role in the storming of the Capitol and the contesting of the results of the presidential election. Doing so would be in line with the Fed Soc’s mission to defend the Constitution and the rule of law.

I reached out to the Society for comment, asking whether it planned to issue any statement or take any action regarding the siege of the Capitol. Gene Meyer, longtime president of the Society, declined to comment, aside from directing my attention to this statement on the FedSoc website (under “FAQ,” Frequently Asked Questions):

Q. Does the Federalist Society take positions on legal or policy issues or engage in other forms of political advocacy?

A. No. The Society is about ideas. We do not lobby for legislation, take policy positions, or sponsor or endorse nominees and candidates for public service. Beyond our statement of purpose the Federalist Society takes no public policy positions and does not participate in activism of any kind. We focus on fostering debate and discussion of important legal topics. We do not seek to speak for our members, and neither do our speakers. This has been true since our founding in 1982.

Now, critics of the Society — such as my former colleague Joe Patrice, in a recent Above the Law post — view FedSoc’s claims of neutrality as disingenuous, to put it mildly. But for whatever it’s worth, it is true that the national office of the Federalist Society does not take official positions, denominated as such, about specific policy proposals, candidates for elected office, and the like.

Other FedSoc members and leaders I interviewed expressed support for this refusal to take official positions, even on a subject like the Capitol riots. Here’s Ted Olson, the renowned Supreme Court advocate and a longtime member of the Federalist Society, as well as a current member of the Board of Visitors:

As you may know, the Federalist Society is a group of individuals, promoting debate, vigorous exchange of ideas. It does not (at least to my knowledge) take positions of issues, controversies, policies, litigation, etc. Its members are fully capable of speaking for themselves. I’m sure many members of the Society have views on this, and have or will express them, but I don’t think the Society itself would be inclined to take a position on behalf of its members.

Another longtime member of the Society and member of the Board of Visitors, Jennifer C. Braceras, echoed these sentiments (and emphasized to me that in making these statements, she was speaking only in her personal capacity):

The Federalist Society, in my memory, has never taken a position on anything — and it’s a very unique organization in that way. Many organizations claim to be nonpartisan or nonpolitical and claim that they take no positions — and then, in moments of crisis, they do just that.

FedSoc has resisted this, to its credit, and it has protected us in a lot of ways, in terms of our credibility and our status. It has made the Society a great place for people to share ideas without fear of retaliation or being canceled. We have a big tent, in the broadest sense. We have members who love Trump, and we have George Conway on the Board of Visitors.

Braceras noted that this isn’t the first time the Society has been asked to take a position or condemn certain members. For example, back when Ted Olson was advocating for marriage equality, FedSoc members opposed to his efforts called upon the Society to condemn his work or to expel him. The Society did neither. 

So what should FedSoc do in the wake of the Capitol riots? Declining to issue an official statement does not mean the Federalist Society should do nothing. Indeed, there are a number of other actions that it can take — and, in my opinion, must take.

First, and most obviously, the Society should no longer allow John Eastman, a prominent promoter of poisonous conspiracy theories about the election, to remain in leadership, as chair of the Federalism and Separation of Powers practice group. Although membership in the Federalist Society is theoretically open to all — as stated in the FAQs, “membership is open to anyone who wishes to join the Society” — leadership is a privilege, not a right. Denying a leadership role to someone who acted contrary to a core FedSoc value like the rule of law is not only eminently reasonable, but imperative.

As for executing on this, I could see the Federalist Society getting Eastman to “self-deport,” much as his former employer, Chapman University, just did. Eastman enjoyed the protection of tenure at Chapman, and he had served not just as a professor at the law school, but as its dean (2007-2010).  Yet on January 13, Chapman President Daniele C. Struppa issued this statement:

After discussions over the course of the last week, Dr. John Eastman and Chapman University have reached an agreement pursuant to which he will retire from Chapman, effective immediately. Dr. Eastman’s departure closes this challenging chapter for Chapman and provides the most immediate and certain path forward for both the Chapman community and Dr. Eastman.

If Eastman could be pried from his perch at Chapman — his employer, and presumably his main source of income — surely he can be gently dislodged from Fed Soc leadership. But if he cannot be persuaded to go quietly, for the good of the organization, then he should be forced out. Forcing him out runs the risk of letting Eastman play the martyr, which is why private persuasion would be superior to public ouster; but if ouster is the only way to remove Eastman as chair, then so be it.

Second, the Society should no longer host events with Eastman, Hawley, and Cruz. Speaking at events, especially marquee events like the National Student Symposium or the National Lawyers Conference, is an honor, not an entitlement. It can and should be denied to insurrectionists, seditionists, and those who egged them on.

(And I have reason to believe, based on recent conversations I’ve had with FedSoc folks after their own internal deliberations, that Eastman, Hawley, and Cruz will be denied the privilege of speaking at Society events, at least for the foreseeable future. But don’t expect a showy statement “canceling” the trio, which isn’t in keeping with FedSoc’s style; if it happens, it will simply happen, sub silentio.)

[UPDATE (1/26/2021): This prediction turned out to be mistaken. On January 25, the ASU Law chapter of the Federalist Society hosted an event with Eastman, “Masking a Government Takeover? The Limits of Emergency Powers During Covid-19." Dean Douglas Sylvester of ASU Law criticized Eastman as “beneath the standards of ASU Law,” but explained that the university was powerless to cancel the event, which had been planned “long ago"— and well before the events of January 6.]

Third, as a more general matter, the Federalist Society should try harder to steer clear of partisan politics. It should be non-partisan not just in name, but in spirit.

When I was a second-year member of the Yale Federalist Society back in law school, our president was a Democrat — a Blue Dog Democrat, to be sure, but a Democrat, and not the only one in our membership. Sadly, in the intervening two decades or so, the Society has moved away from being a forum for debating ideas that couldn’t be discussed elsewhere in the left-leaning legal profession, which is what so many of us found so attractive, and more toward being a vehicle for advancing Republican politics in the legal and judicial spheres.

Democrats should feel comfortable becoming members of the Federalist Society; it’s not supposed to be the Republican National Lawyers Association. The fact that many FedSoc members are so active in Republican politics in their individual capacities means that the Society, in its institutional capacity, should work that much harder to stay non-partisan. Cf. “Caesar’s wife must be above suspicion.”

Here are some specific steps the Federalist Society can take to move away from partisanship:

• It should dramatically cut back on, or even eliminate, FedSoc events featuring partisan (read: Republican) politicians, at both student and lawyers chapters.

• In selecting presidents for student and lawyer chapters, it should try, to the extent possible, to avoid picking presidents who also hold leadership positions in explicitly partisan organizations (e.g., president of the law school FedSoc chapter ideally shouldn’t also be president of the Republican law student group).

• It should stop its practice of giving coveted speaking slots at the National Lawyers Convention to Republican politicians just so they can deliver their standard stump speeches, without any relation to core concerns of the Society.

• At the Convention’s gala dinner, speakers should refrain from their past practice of making jokes or stray comments of a partisan nature, such as jokes making fun of the Democratic Party or Democratic politicians. Poking fun at liberal (or conservative) judicial activists for issuing lawless opinions is acceptable for a non-partisan organization committed to the rule of law; mocking Democratic politicians simply for taking Democratic positions on policy issues is not.

FedSoc members and leaders frequently stress the difference between law and politics — and they’re exactly right. The Society should focus on its core mission of “sponsor[ing] fair, serious, and open debate” about important issues in the law — and stay away from all the politics.

Of course, the larger and longer-term issue, not just for the Federalist Society but for conservatives, libertarians, and Republicans, is how much of their principles they are willing to sacrifice for power.  Allying themselves with Donald Trump for four years got them tax reform, three Supreme Court seats, more than 200 lower-court judgeships, and all sorts of other goodies. But was it worth it?

Gregg Nunziata — a former chief nominations counsel to the Senate Judiciary Committee, who understands the importance of judgeships — has his doubts:

Yes, Trump-appointed judges conducted themselves admirably over the past few weeks. But judges are not enough. The Federalist Society, and conservative lawyers more generally, should deepen efforts at promoting civil virtue beyond the bench. As recent events have shown, clearly those principles are not deeply rooted enough.

The Federalist Society is committed to advancing the rule of law, which is why many of its members, in their individual capacities, have worked so hard for the appointment of judges who believe in the rule of law. And many of those judges, in ruling against meritless election challenges brought by the man who appointed them, stood up for the rule of law in the past few months, to their great credit.

But to sacrifice the rule of law as a value, in the hope of getting four more years of a president who might appoint good judges but is otherwise anathema to the rule of law, is simply perverse. I am the last person to underestimate the importance of judges, but if you will allow me to close by paraphrasing Meatloaf, here is my bottom line:

“I would do anything for judges — but I won’t do that.”

Disclosure: I was vice president of the Yale Federalist Society in law school, belonged to FedSoc for a number of years as a lawyer, am sympathetic to textualism and originalism as interpretive theories, and participate occasionally in Fed Soc events. Last year, I spoke to two student chapters, for which I received the Society’s standard, modest honoraria (and I subsequently made a gift back to the Society in the amount of the honoraria). So I consider myself friendly enough to the Federalist Society to have credibility with its members when discussing it, but with enough distance on the Society to offer constructive criticism.

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