The Scrapbook was somewhat startled by the headline at ProPublica, the influential nonprofit journalism outlet, about the King v. Burwell case: “Behind Supreme Court’s Obamacare Case, A Secretive Society’s Hidden Hand.” Secret society? Hidden hand? That sounds ominous.
The “secretive society” is the conservative legal group the Federalist Society. This far-from-secretive group has been around since 1982, and one of its main missions is promoting public debates on legal issues. Invitations to participate in these debates are regularly extended to prominent legal scholars, liberals as well as conservatives. Supreme Court justices Antonin Scalia, John Roberts, Clarence Thomas, and Samuel Alito—as well as luminaries too numerous to mention—have been either members of the organization or participants in its confabs. Indeed, just about every significant right-leaning lawyer or judge in America probably has some connection to the Federalist Society, and, as near as we can tell, none of them ever felt the need to hide it. Despite this, ProPublica frets, “The Federalist Society doesn’t even make public its membership rosters.”
Well, a great many organizations with thousands of members, political or otherwise, don’t make their membership lists public for lots of obvious reasons. Despite this, ProPublica’s interview with the author of a new book notes that he was able to piece together “speaker agendas from Federalist Society national student conferences and lawyer conferences from 1982 to 2012 to construct a database of everyone who’s ever participated in one of these meetings: 1,190 individuals in all.” If the goal is to hide their membership, the Federalist Society is doing an extremely poor job of it.
If the Federalist Society is being portrayed as a shadowy cabal, it’s only because liberals have often resented it for its effectiveness as a counterbalance to the liberal legal establishment. To cite one notable example, in the George W. Bush administration,
the Federalist Society played a significant role in getting the government to abandon the silly practice of letting the liberal American Bar Association rate judicial nominees. Recall that the ABA gave such distinguished Reagan appointees as Richard A. Posner and Frank H. Easterbrook their lowest possible ratings of “qualified/not qualified,” despite both men becoming toweringly influential in the world of jurisprudence.
Which brings us to a related bizarre case of liberal conspiracy-mongering. The day after ProPublica’s report on the Federalist Society, the New York Times ran this breathless headline: “Challenge to Health Overhaul Puts Obscure Think Tank in Spotlight.” The report begins this way: “In the orbit of Washington think tanks, the Competitive Enterprise Institute is an obscure name with a modest budget that belies its political connections to conservative titans like the Koch brothers.”
That description of CEI simply beggars belief. In the orbit of Washington think tanks, CEI is anything but obscure. CEI has also been around for over 30 years. Its regulatory analysis and work on environmental issues is hugely influential, and regularly cited by courts and media. They’re listed as one of the “Top Think Tanks in the United States” in the 2014 Global Go To Think Tank Index Report. CEI’s annual dinner is one of the most beloved and best-attended social events on D.C. conservative and libertarian social calendars.
To say CEI is “obscure” tells us much more about the ignorance of the New York Times than it does about CEI. Hillary Clinton was at least partly right—there is in fact a vast, right-wing network in this country. But it’s out in the open and anything but a conspiracy.
