Was John Roberts Ever a Member of Federalist Society?

Smoothing the already clear path to confirmation

For both a Supreme Court nominee and the White House, confirmation will never be taken for granted. Even when the path to confirmation appears clear, they will be tempted to make it as smooth as possible.

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The day after George W. Bush announced his nomination, the White House raced to correct widespread reports that John Roberts was a member of the Federalist Society, the organization of conservative and libertarian lawyers that arose in the early 1980s to challenge liberal dominance of the legal culture. Roberts was not a member of the Federalist Society, the White House press secretary told reporters, and, further, he “has no recollection of ever being a member.” Specifically, the press secretary explained (in the Washington Post’s summary):

Roberts recalls speaking at Federalist Society forums (as have lawyers and legal scholars of various political stripes). But he has apparently never paid the $50 annual fee that would make him a full-fledged member. His disclosure forms submitted in connection with his 2003 nomination to the D.C. Circuit make no mention of it.

“Are you now, or have you ever been, a member of the Federalist Society?”

A few days later, however, the Post reported the discovery that Roberts was listed in the Federalist Society’s leadership directory for 1997-1998 as one of nineteen members of the steering committee of its D.C. chapter. And, lo and behold, I suddenly found myself part of the story:

Among the others on the list are such prominent conservatives as William Bradford Reynolds, a Justice Department civil rights chief in the Reagan administration; Ethics and Public Policy Center President M. Edward Whelan III; and the late Barbara Olson, who was a Capitol Hill staff member at the time. Her husband, former U.S. solicitor general Theodore B. Olson, is listed as president of the chapter.

I provided the Post a simple way to reconcile the apparent conflict:

Whelan, who has been a member of the Federalist Society but said he had no recollection of his own membership on the steering committee, said the society is tolerant of those who come to its meetings or serve on committees without paying dues.

“John Roberts probably realized pretty quickly he could take part in activities he wanted to” without being current on his dues, Whelan said.

What I didn’t volunteer—why complicate matters?—was that I recalled, if rather dimly, that I had seen Roberts at a brainstorming or strategy session that the Federalist Society held one Saturday morning some time in the late 1990s at the Mayflower Hotel. Those of us attending split into two or three discussion groups, and I was not in the group with Roberts. But that breakfast meeting went beyond the involvement that the White House had acknowledged—it was decidedly not a “forum” open to “lawyers and legal scholars of various political stripes”—and it might well have been the reason that Roberts and I were listed in the Federalist Society’s leadership directory as members of the D.C. chapter’s steering committee.

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A few days later, a Post reporter told me that she and her colleagues were laughing at how eager the White House was to distance Roberts from the Federalist Society. Why should his involvement with it be controversial? Why its insistence that he had never been a dues-paying member and its dubious suggestion that his involvement with the Federalist Society was nothing more than what “lawyers and legal scholars of various political stripes” had had?

It’s one thing to correct the factual record. It’s quite another to do so in a way that seemed to cast aspersions on Federalist Society membership.

This struck me as an example of what I feared when I undertook to blog about the nomination: that the White House, rather than defend conservative judicial principles, would try to make the confirmation path as easy as possible by running to the political middle.

But perhaps it wasn’t just the White House. A nominee has an even stronger incentive to make his path smooth. And the Post’s account gives a strong indication that it was Roberts himself who wanted it clear that he had never been a dues-paying member of the Federalist Society:

These [distinctions between being a dues-paying member and taking part in Federalist Society activities] may seem like fine distinctions, but Roberts has insisted on them. In 2001, after he was nominated by President Bush for the seat he currently holds on the court of appeals, Roberts spoke to Post reporter James V. Grimaldi and asked him to correct an item Grimaldi had written that described Roberts as a member of the Federalist Society.

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As one long-ago colleague of Roberts in the Reagan administration put it to me, the lesson that many young conservatives drew from the defeat of Robert Bork’s nomination in 1987 is that in order to get appointed to the Supreme Court by a Republican president, “you need to be conservative enough to get nominated and liberal enough to get confirmed.” Perhaps that adage explains why John Roberts both participated in various Federalist Society activities and avoided becoming a dues-paying member.

In 2005, in a Senate with 55 Republicans, only a handful of whom might be described as liberals or moderate liberals, the second half of that adage—“liberal enough to get confirmed”—shouldn’t have demanded much. But every nominee and every White House is going to be inclined to assess the risks very cautiously.