Are you now or have you ever been?

The Minneapolis Star Tribune takes a look at the Federalist Society through the lens of its local Minnesota chapter and the continuing legal education program it co-sponsored in June 2004. Coincidentallly, I was chairman of the course — “Elimination of bias: What bias?” — offered to fulfill the Minnesota Supreme Court’s continuing legal education requirement for the elimination of bias. The program criticizes the report that provided the basis for the court’s imposition of the requirement but, in the traditional style of the Federalist Society, seeks out proponents of the requirement to participate in the program.
When we offered the program in 2002, I asked the chief justice of the Minnesota Supreme Court to invite a member of the court to appear on the program. The member of the court who is responsible for implementation of recommendations intended to eliminate alleged bias in the judicial system responded and agreed to participate. He appeared in the program in 2002, and declined to participate again. However, he is in good company; the entire Minnesota Supreme Court declined to participate in the program or to defend the requirement when we last presented the program in June 2004.
The gallant Professor Marie Failinger of Hamline University Law School in St. Paul stepped into the court’s shoes and did a wonderful job. She appears prominently in the Star Tribune article by David Peterson: “Legal society strong in state.” Because of its personal interest to me and because the Star Tribune makes its articles inaccessible after a few weeks, I’m taking the liberty of pasting it in below:

Marie Failinger understood right away that she was the designated liberal foil when the Federalist Society invited her to speak at a conference on bias in the courts. Even so, the professor at Hamline University School of Law, the only one of the four metro-area law schools not to harbor an active Federalist chapter, emerged impressed. The group didn’t strike her as the kind of secret society that some of the coverage of its ties to U.S. Supreme Court nominee John Roberts might suggest.
But Failinger laughed when she recalled what Minnesota’s Federalists — one of the nation’s most active chapters — were doing the day she was there.
Lawyers were getting state continuing education credit for the category “elimination of bias” with a conference whose main thrust was to question whether the system is biased at all.
One speaker attacked the “belief police.”
Is there something suspicious in Roberts’ claiming not to recall whether he was a dues-paying Federalist?
“Silly,” said Kimberly Crockett, the group’s local leader.
“Preposterous,” said University of St. Thomas law professor Patrick Schiltz.
Roberts’ vagueness over the exact nature of his ties to the group is typical of all of them, members say. It’s not a membership group in the way that a labor union has members; it’s more like “being on the mailing list.” Nor is it an advocacy group like the American Civil Liberties Union, members say. It’s a debating society, with a website that lists events and speakers.
Any ties at all to the Federalist Society indicate that Roberts is conservative, they agree, but they wouldn’t expect President Bush to appoint anyone who wasn’t. It doesn’t prove whether or not he’s a mainstream choice. Even so, some members admit to a certain reserve about being members.
After declaring that it’s “no secret society,” with “no secret handshakes,” Crockett confessed that when she first applied for jobs as a lawyer, she prepared two resumes: one disclosing her Federalist ties (she had started a chapter at her Ivy League university) and one that did not. In the end she went with full disclosure, she said, but added:
“A lot of people don’t put it on their resumes. That’s why the ‘membership’ issue is so touchy. All the professions, journalism, law, academia, are liberal politically, and you pay a price when you don’t agree with members of your ‘club.’ ”
In the mainstream
Most people don’t know it, but Minnesota has its own John Roberts: G. Barry Anderson, an appellate judge whom Pawlenty appointed to the state Supreme Court last year.
Anderson said he was happy to own up. “I’d have to check my Quicken [computer] program to see if I’ve paid dues,” he said, “but I believe I’m a card-carrying member.”
Anderson described the Roberts membership controversy, which wasn’t an issue when he was appointed, as somewhat bemusing.
“Anyone who has so little going on in their life that they’re interested in esoteric discussions about legal theory is welcome to come, and will find a full spectrum of opinion represented,” he said.
One thing that annoys some liberals is the Federalists’ perceived self-image as a beleaguered band of brave free-thinkers amid a cloud of blue-state political correctness.
“Liberal professors and liberal students inviting liberal speakers to present liberal views — that was law school in the early ’80s,” Schiltz said, and the root of the group’s creation. But “beleaguered?” said Brian Melendez, an attorney with Faegre & Benson in Minneapolis. “That’s a little ridiculous.”
Emphasizing that he was speaking not as state DFL Party chairman but as a lawyer, Melendez agreed with the group’s contention that one can be a Federalist without being an extremist.
“A number of good friends of mine are members. I disagree with them on many things, but they are well within the realm of mainstream politics,” he said.
A different slant
Federalists do own up to a certain mischievous attitude toward mainstream wisdom, even on topics of great sensitivity.
Roger Magnuson, a litigator at Dorsey & Whitney in Minneapolis and an active Federalist, confirmed the story about the subversive “elimination of bias” conference with a laugh.
“We did put a different slant to it,” he said. “Someone challenged us for not taking the right point of view on the subject matter, and we weren’t sure the state board would ever approve such a thing again. But after seven or eight months — world record time — they finally approved a second one.”
Peg Corneille, director of the state board of continuing legal education, also replied with a measure of humor. “I don’t know who’s keeping track of our ‘records’ for slowness,” she said, “but others also complain we can seem to move at glacial speed.”
She agreed that not everyone is keen on what the Federalists do on the question of bias.
“They have generated comment in the bar and have definitely been the subject of board consideration. But the rules call for ‘addressing’ bias. They don’t tell you what you have to say about it.”

UPDATE: Peter Swanson of Swanblog is the unofficial historian of the Supreme Court’s elinmination of bias rule. Don’t miss Peter’s corrective take on the Star Tribune article: “Handshakes, humor and revisionist history.”


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