Recognizing Defeat: Liberals’ Passive Response to The Federalist Society Isn’t Cutting It
Conservatives have unquestionably mastered the art of nominating federal judges and Supreme Court justices who will reliably decide cases that reflect a president’s conservative political ideology (as discussed in my last piece). So what hope do liberals have to counter such an effective effort by conservatives to create a farm system for far-right legal “scholars” who will reliably side with them on all of the key issues? Unfortunately, not much.
The liberal response to The Federalist Society came in the creation of The American Constitution Society, or ACS—not be to be confused with the much-loathed student loan company, or the American Cancer Society, or the American Chemical Society, or any one of the other hundred organizations that share this acronym. To many people’s wonderment, liberals managed to come up with a name even more boring and milquetoast than “The Federalist Society.”
I don’t want to be too hard on ACS. It does some good in that it attempts to put forth a progressive legal perspective in a political system that had essentially allowed The Federalist Society to be the sole legal voice for 20 years. With that said, ACS is plagued by problems beyond just having a really bad name. As a current member and one-time leader of an ACS student-chapter, I have some knowledge of these problems.
First, it took liberals 19 years to respond to The Federalist Society. ACS was not founded until 2001. ACS is quickly trying to play catch-up.
A second problem ACS faces is that the organization is not exactly catching on with the young folk. When I started law school in 2005 at Lewis & Clark Law School in Portland, Oregon, I was shocked to learn ACS did not even have a student chapter. Despite being one of the most liberal law schools in the country in one of the most liberal cities in America, it had a Federalist Society Chapter, but no ACS chapter. I established one my first semester in law school, and it’s existence has barely sputtered along since.
Third, there is a very strong feeling among many in ACS’ leadership that ACS should not allow itself to be the liberal version of The Federalist Society. Why?! There has been no single legal institution in this country that has so significantly affected the judicial debate as The Federalist Society. Liberals need to recognize when it has been beaten. ACS needs to examine what The Federalist Society has done and emulate, emulate, emulate (to the extent emulation can be done ethically).
A fourth problem with ACS is that it is not rabidly liberal the way The Federalist Society is rabidly conservative. If one wants to meet with rabidly liberal attorneys (and I mean this in the most endearing of ways), he or she should go to a meeting of the National Lawyer’s Guild. These people know how to party. In a system where we often split the difference, liberals lose ground when we have moderate/left organizations like ACS working with rabidly right-wing organizations like The Federalist Society.
The fifth and most significant shortcoming of ACS is that Democrats, most notably the Obama administration, are not behind it. Back in 2008, shortly after Obama was elected president, he chose an ACS board member, Eric Holder, to be his Attorney General. Supporters of ACS were beside themselves with glee. The Washington Post even ran a headline that read, “Legal Organization May Become Influential Beyond Its Dreams.” ACS never realized this liberal utopia because Democrats, particularly Obama and Holder, failed to utilize ACS’ resources or embrace its philosophies in nominating federal judges or applying the law.
When it is suggested within ACS circles that ACS should possibly act as a clearinghouse of sorts for federal judges, like The Federalist Society has become for conservatives, the idea is quickly and harshly dismissed. The sentiment is that such crude litmus tests are beneath the regal institution that is the law. I am sorry, but I like to win, and by win I mean advancing human rights, workers’ rights, civil rights, consumer rights, and rights of the accused. Our current system in which we have a Democratic president nominating pro-corporation judges is not acceptable. A full 71% of President Obama’s nominees to the federal bench have practiced law primarily for corporate or business clients. Just 3.6% of Obama’s nominees have a background in public interest. Why did neither of President Obama’s Supreme Court nominees have any connection to ACS? Most significantly, where is ACS now that President Obama has largely relegated it to nothing more than an interesting and isolated think-tank? We saw how The Federalist Society mobilized against President Bush when he deviated even slightly off course. While I would never advocate such militarism on the part of ACS, a little private and public pressure would be appreciated. Plus, if young attorneys knew that membership in ACS could be a big plus in review for nominations to federal positions, perhaps membership and interest in the organization would soar.
So while Republicans long ago mastered the art of packing the judicial branch of government, and are eagerly waiting in the wings to renew their court-packing efforts, Democrats remain unable and unwilling to martial the fortitude to do the same. This decision will likely ensure that regardless of how successful Democrats and liberals are at the ballot box, much of their work and progress will be undone by a far-right wing judiciary who is not too proud to win.
– Dylan
TheBlueBrothers 
April 15, 2014 at 11:48 am
The packing of our courts with judges with an extreme liberal agenda is perhaps the greatest threat to our democracy. Who else would have taken a business entity, created by state law, and made it a constitutionally protected person.
May 4, 2014 at 3:13 pm
This comment makes my brain hurt. It is either a really unfunny joke a comment written by a person who has virtually no understanding of the federal judiciary. There is no way the anonymous author read either of my last two articles. He or she simply read the headline and jumped to the comments section.
As I covered in my last two articles, there has been (much to my chagrin) no liberal takeover of the federal judiciary. Evidence of this is the pro-business and pro-corporate background of most of President Obama’s nominees. In contrast, conservatives have very successfully nominated conservative ideologues to bolster their fringe beliefs. I encourage the poster of this comment to actually read my articles before commenting and have enough pride in what he or she writes to attach his or her name.
The comment also implies that corporate personhood is a liberal belief (*gasp*) and that it is a recent development. It has been with us since the 1819 Supreme Court opinion of Trustees of Dartmouth College v. Woodward. To the person who left this comment, please step back from the Fox News and crack a book.
– Dylan
July 10, 2018 at 8:21 pm
This post is ever more true today.