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Who Cares if Miers is Not A Mason? Err... Federalist?

First, I should clear up a misconception: despite some assertions to the contrary out there, I'm not absolutely in favor of the Miers nomination. I don't think I have enough information,[1] nor do I think anyone yet does, to make an informed judgment. Those who have not reserved judgment have by and large put forward reasons to reject her nomination that do not persuade me: she's not a judge or a professor and hasn't collected the right brass rings. Before I'm willing to say she's unqualified, I'd like evidence that Miers is not smart or thoughtful, not merely that she's missing robes or ermine.

But worse than the whiff of elitism is the wailing at the Federalist Society, where the egos have been quite obviously bruised. Professor Richard Garnett started the banshee howl on Natonal Review's "Bench Memos," and both Prof. Randy Barnett and Prof. Bainbridge pick up on the theme. How has Miers raised such angst among the Feds (or at least their fellow travellers)? Among other things, by stating in some decades-old testimony that she wouldn't belong to the Federalist Society because "I just feel like it's better not to be involved in organizations that seem to color your view one way or the other for people who are examining you."

Good for her.

Look, there's nothing wrong with the Federalist Society as such, and unlike the American Constitution Society it doesn't have a strong sense of redundancy. It does good work, gets good speakers, and serves as a social network for conservatives who wish to be "plugged in." But the interests of the FedSoc are convergent with only part of the interests of the Republican Party or conservatives generally. Libertarians have far greater influence within the Society than they do within the conservative movement as a whole, and to the extent that the Society speaks with one voice, it speaks for, to, and with the twangy tones of Gabriel the Professor rather than Joe Six Pack. [2] Just because the Society is the only conservative constituency Bush has in legal academia, it does not follow that they're the only or even a necessary constituency for him to observe when making nominations.

The near death-grip that the Federalist Society has on the claim to conservatism in academia has become a stifling assumption. I don't propose that the society be fractured into a hundred different splinter groups, as that would merely turn what remains into a clone of the ACS. But could they possibly admit that one can be a conservative on campus, or a conservative working in the law, and not wish to have their damnable silhouette stamped upon one's forehead? (And as for cronyism, could we please concede that the President can nominate a candidate who is conservative without having to "pay his dues" to the Society? Were they really the only ones waiting for long years in the wilderness? And are we really objecting to cronyism, or that he's chosen the wrong kind of crony?)

Garnett's piece deserves more attention, but for this line:

If Ms. Miers really does harbor the tiresome, skittish, establishmentarian, protect-the-guild wariness toward the society described in the accounts mentioned above — rather than respect for its work, admiration for the vision of David McIntosh, Steve Calabresi, Spence Abraham, and others who founded the Society more than 20 years ago, and gratitude for the dedication of hundreds of law students today who often take real hits in order to stand up for and strengthen the Society and its intellectual mission — then I am inclined to think that she has not earned (no matter what church she attends, no matter how good a person and impressive a lawyer she is, no matter how much she abhors abortion, no matter how loyal she is to this President, and no matter how Rehnquist-like her record turns out to be) conservatives' support.

You've heard it from Prof. Garnett himself: who cares how good a lawyer she is, what her opinions or what her jurisprudence? If she's not prostrated herself before a graven image of Madison's Shadow, she's not fit for conservative support.

B----- that for a game of soldiers. Miers may eventually lose my support on the merits, but not because she doesn't belong to the right kind of club.

UPDATE: Feddie at Southern Appeal joins the "how dare they diss the Federalists" bandwagon. Note that he--like all the other supporters--endorses Garnett's who-cares-who-she-is-if-she's-not-one-of-us rhetoric. Read some of the commentors at his site, and you cease to wonder why Miers might not want to have been associated. And if she ever did, she may very well not wish to be now.

[1]: Now, of course, more information about Miers is coming out. A very good (and lengthy) piece on The Beldar Blog, for instance, looks through Westlaw to examine cases in which Miers was a critical player. The Volokh Conspiracy, while containing a lot of commentary and speculation, has also been a good source of primary information.

[2]: To point out the obvious, the Federalist Society is hardly an orthodoxy, and indeed includes a few Democrats and liberals. Libertarians do not have a lock upon the Society. They do, however, punch far above their weight in the wider world. Further, Federalists tend to be originalists in jurisprudence, rather than consequentialists or pragmatists. Conservatives, on the other hand, may very well be pragmatic about their judicial choices: it is by no means impossible to be both a conservative and a judicial realist. (Or to decide that you don't really care about getting the right ruling, so long as you get the conservative one. A fair few conservatives wouldn't mind a right-wing Earl Warren or Douglas, rather than a Scalia.)


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I think, with all due respect, that you are misunderstanding -- or I miscommunicated -- my point about Miers and the Federalist Society. My point is not "who cares who she is if she is not one of us"; it is, instead, a more general one: The Federalist Society is an important and valuable organization, and it's not right for a "conservative" Administration to convey (or endorse) a mistaken message that the Society is somehow unworthy or suspect. I certainly think that conservatives should support good nominees who are not members (e.g., John Roberts); I also think, though, that someone who buys into the "ABA good, Fed Soc bad" line is probably not worthy of such support.
Prof. Garnett: I certainly didn't expect you to be here. Welcome. I don't think I did misunderstand it. The Federalist Society may indeed be an important and valuable organization. So are dozens of organizations within the conservative movement. And like any of those organizations, some will approve and endorse it, and some will not. I don't really feel that my dividing line should be whether or not she approves of FedSoc, especially if I don't know why she might or might not feel this way. The Federalist Society is a good thing. It's not, however, so almighty important that I'll use it as a litmus test.
Fair enough! I'm not sure we're that far apart. I probably would not make approving the Fed Soc an absolute litmus test, either. But, for a "conservative" nominee to disdain, or disapprove of, the Fed Soc at least raises questions and concerns for me. Best wishes.
It's a limus test for me. If a "conservative" is hostile to the Federalist Society, then chances are he's not very conservative to begin with. The Federalist Society is not just another conservative organization. It is THE heart and soul of the legal conservative movement.
Which, of course, Feddie, puts you in the interesting position of explaining how I'm not a "real" conservative, or very conservative to begin with? Please, do go on. Your explanation of how I'm not a conservative will be very amusing to people who know me.
Wait a second here, Mr. Rickey. There is a big difference between being "hostile" to the FedSoc, which I believe was Feddie's litmus test, and not being a member. If you believe that "The Federalist Society is a good thing," as you say above, and perhaps even that it is "an important and valuable organization," then it seems you aren't so hostile to the organization after all. So don't worry - no one is doubting your conservatism.
John, Then again, Miers (a) was an invited speaker to the FedSoc at least once, and (b) was endorsed by a former member of the FedSoc board. If Miers is "hostile" to the FedSoc by any measure, so am I.

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