Tuesday Talk*: Can Conservative Law Survive?

While many would argue that the Federalist Society has been unfairly tarred as the conservative equivalent of the progressive American Constitution Society, some long-time conservatives in the law are taking the position that it’s become a captive of the MAGA right and, even if not the conspiratorial organization it’s been painted to be, has failed to fulfill its function of challenging unlawful, unconstitutional and un-conservative “cockamamie” positions taken by Trump and his legal sycophants.

George Conway, Michael Luttig and 

We were members of the Federalist Society or followed the organization early in our careers. Created in response to left-liberal domination of the courts, it served a principled role, connecting young lawyers with one another and with career opportunities, promoting constitutional scholarship and ultimately providing candidates for the federal bench and Supreme Court.

But the Federalist Society has conspicuously declined to speak out against the constitutional and other legal excesses of Mr. Trump and his administration. Most notably, it has failed to reckon with his effort to overturn the last presidential election and his continued denial that he lost that election. When White House lawyers are inventing cockamamie theories to stop the peaceful transition of power and copping pleas to avoid jail time, it’s clear we in the legal profession have come to a crisis point.

Rather than fight for the soul of the FedSoc, they chose a different path.

We must rebuild a conservative legal movement that supports and defends American democracy, the Constitution and the rule of law and that incentivizes and promotes those lawyers who are prepared to do the same. To that end, we have formed a nonprofit organization, the Society for the Rule of Law Institute, to bring sanity back to conservative lawyering and jurisprudence.

Will this bring sanity back to conservative lawyering or is the creation of yet another partisan legal organization nuts?

There is a need and demand for this new legal movement that the legal profession can readily meet. Pro-democracy, pro-rule-of-law lawyers who populate our law school campuses, law firms and the courts decry what is happening in our profession. They deserve an outlet to productively channel these sentiments.

While some on the right side of the legal discussion were all too happy to have Trump appoint judges and justices of their choosing to the bench, two things became increasingly clear. First, they ran out of smart, competent conservative judges and started putting incompetent or inexperienced loyalists on the bench whose only “virtue” was that they would do their master’s bidding.

Second, Trump neither knew nor cared anything about law, principle or Constitution. Trump only knew what was good for Trump, and that wasn’t good enough for principled conservative lawyers and legal scholars. And, to their mind, the Federal Society failed to call Trump out and condemn his unconservative, anti-constitutional, cockamamie efforts to circumvent the law.

We believe it is necessary to build a legal movement with the capability to recruit and engage dues-paying members, file legal briefs, provide mentorship and career opportunities, convene supporters and speak out as vocally and forthrightly as is necessary to meet the urgency that this moment requires.

Interesting that they thought it necessary to include “dues paying” in there, lest anybody join for the sake of the cause without the willingness to pay up. They assert three goals for the dues collecting organization.

First and foremost, this movement will work to inspire young legal talent and connect them with professional opportunities that will enable them to fulfill their vast potential without having to compromise their convictions.

Second, the movement will focus on building a large body of scholarship to counteract the new orthodoxy of anti-constitutional and anti-democratic law being churned out by the fever swamps.

Third and most important, we will marshal principled voices to speak out against the endless stream of falsehoods and authoritarian legal theories that are being propagated almost daily.

How a goal can be “foremost” but not “most important” is a mystery, but I digress. Will this work? Is there a need for a new conservative legal organization to replace FedSoc? Will it be the principled society it purports to be, or just the legal version of the Lincoln Project, clearly anti-Trump but not much more? Assuming the need to exist, will this “dues paying” group gain the traction to become a legitimate principled conservative legal organization to replace the Federalist Society?

*Tuesday Talk rules apply, within reason.

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