“We can still witness a bias against intellectual diversity in law schools” – conversation with Dean Reuter

2020. október 16. 17:53
“Law schools are still very reluctant to hire conservative and libertarian professors. At some point, I think it has to become educational malpractice if they are not hiring professors who can teach their students how to make originalist and textualist arguments before an increasingly originalist bench” – Dean Reuter pointed out in a conversation with Lénárd Sándor about the historny and role of the Federalist Society.
Dean Reuter is General Counsel, Vice President & Director of the Practice Groups of the Federalist Society for Law and Public Policy. He is editor of Liberty’s Nemesis: The Unchecked Expansion of the State and Confronting Terror: 9/11 and the Future of American National Security. He is a graduate of Hood College (BA with Honors) and the University of Maryland School of Law.

 

Let’s begin our conversation with the historical roots of the Federalist Society. The operation of today’s largest lawyers’ organization dates back to the early 1980s. Can you recall and tell us what the major driving force was for establishing the Federalist Society?

The organization started back in 1982 when a handful of law school students at Chicago, Harvard and Yale Universities begin to notice what they described as a

“liberal orthodoxy” on law school campuses.

Law schools embraced and presented very progressive views of the law. They were troubled by that view, and they thought there must be another view out there. There has to be a more conservative, reserved approach of how to interpret the law. While they were seeking that, they found a couple of key faculty members. Robert Bork and Antonin Scalia, both law school professors, were amongst them. They sought their advice and assistance and finally they decided to hold a conference. The idea was to bring conservative scholars to these three law schools in order to have a varied approach and discussion. That really took off and it has become the calling card of the Federalist Society.

So your story began with a quest for the desire to have free debates and academic freedom…

Yes, we are not necessarily pushing a certain view. Instead, we are pushing a model. We are about ideas. We are advocating the idea that these questions should be debatable and should be discussed. A few of the major tenets that the founders were concerned about at the time was the way the Constitution was interpreted by judges. This was in the wake of the “Warren Court” where the Constitutional rights were expended by fiat by the judiciary. In the views of the conservatives, the judiciary was inventing, or finding rights, by not really paying attention to the text. This provided impetus for our movement that aims to get judges and lawyers to focus on the text of the Constitution and that of the Statues and to apply them as they were written at the time.

As the years went by, the organization has become larger and has ultimately grown into the largest organization of lawyers in the United States. Could you shed some light on how the Federalist Society is structured?

It started as a student organization and it became a membership organization. They held conferences year by year and then these law school students began graduating. What started as a student organization became a hybrid organization of students and young lawyers. As the organization has aged, these lawyers have aged also and the organization has tens of thousands of members. The organizational structure reflects this high number of members and it also reflects how we can think of the network of the membership. There is still a student division that is run from Washington D.C. that provides assistance to the student chapters. The student chapters are quite autonomous and we share our best practices and guidance with them. We provide funding from the Washington headquarters for the student chapters to host programs. There are chapters at every accredited law school in the country. Many of these chapters are hosting events once a month, sometimes once a week. I would say that at around 80% of the law schools, the Federalist Society chapter is the strongest and most active student organization. On the other hand, it is also true that on many campuses it is the only conservative voice.

How do faculties relate to these student chapters?

Each of one our student chapter has to have a faculty advisor. However, in some places there are still no conservative faculty members to be advisers to the Federalist Society chapter. In those instances we have identifiably left of center faculty member who are willing to be faculty advisors because they believe in the strength and the mission of the organization, so in other words that we ought to have free debate…

So, what you believe in and what you wish to exercise is the original meaning of the First Amendment free speech doctrine.

Yes, this is a kind of unifying principle.

You ought to be looking at the original public meaning of the legal document, either the Constitution or a statute.

This ought to guide your interpretation of the law. Because the alternative is to have a judge who imposes his or her own version of what that clause or phrase means.

We talked about originalism many times in this interview series. However, I do wonder whether the Federalist Society embraced the already existing originalism or if it was the other way around, the originalist interpretation was an invention of the Federalist Society…

I think originalism was out there in its various forms. I also think it was the natural way to think about a legal document in the early years of the country. But it is also true that originalism has different nuances. When our organization began, we started to talk about “original intent.” So what did the Founding Fathers mean when they wrote that? That involved getting behind the actual words of the document and trying to get into the minds of the Founders. It is about what the words must have meant as they were said. This was refined by public meaning originalism, focusing on what everyone understood the meaning of the words to be when the text was adopted.

What other divisions do you have besides the student chapters?

We also have a lawyers’ division which is broken into two primary parts. One of them is geographic. Therefore, we have lawyers’ chapters in about a hundred cities around the country. So, every major city you can think of has a lawyers’ chapter. They do events providing opportunities for people to see speakers or free debates on topics and with speakers they decide are interesting. They all have their own leadership. However, as we do with the student division, we have a staff in Washington dedicated just to the lawyers’ chapters and they help these chapters operate. They provide a lot of administrative assistance.

The other half of the lawyers’ division is the practice groups. This is the way we organize lawyers around substantive areas. There are fifteen different practice groups. There is one for administrative law for example, one for civil rights, one for labor law or telecommunication law, etc. We have established those so that we can help identify members in our network who have different areas of expertise and interests. In this way we can also discuss how the principles of the law, such as the Federalism for example, operate in the different areas. So, the practice groups also help understand these convoluted and many times intricate issues.

Since you mentioned that conservatives are underrepresented in academia, I am wondering whether and how you are trying to address this problem.

Besides the student and lawyers division we have the faculty division, which is one of our more recent additions. We have tried to help young lawyers interested in becoming faculty members and we have a faculty division for about the last twelve years. The mission of this division is to identify scholars who want to become academics and trying help them prepare for the process. In the United States it is a pretty rigorous process even though we have around 180 accredited law schools.

It is still very difficult for a conservative or a libertarian to be hired at a law school. We can still witness a bias against intellectual diversity in law schools.

Therefore, any bit of help we can give to inspiring academics is useful and that would include everything from helping get papers published to establishing a network. If we have conservative faculties in different schools we encourage them to get involved in the hiring process so they can put a ladder down for other people to climb up into that university. In addition to the faculty division, we also have an administrative office, and a development office for fundraising.

How could you get your message out to the people?

Our newest division is social media and digital. This office has expertise in helping push our content out in new ways. Historically, we were an organization of 90 or 60 minutes debates with a live audience. As the technology developed we started recording these programs and making them available on the Internet so people could watch later. But eight or ten years ago we also started breaking into short videos. These are produced videos around certain topics. Also we try to be innovative in using Twitter and Facebook. One interesting dynamic of all of these changes is that instead of just talking to the conservative legal community on a narrow channel to people who bother to show up, these technologies can convey a message to a far greater audience. It is also an opportunity to make our message more appealing to a broader spectrum of lawyers or to the general public, for example.

I also saw many times that you are trying to involve experts from the progressive side in some of your either short or longer discussion to provide diversity. It is quite remarkable to give them the opportunity to present their views. In that respect, it is a bit similar to the practice of the National Constitution Center under the leadership of Jeff Rosen…

Frankly, I would say that the National Constitution Center is modeling after us. I think Jeff Rosen would take it as a compliment. He is a friend and we have been collaborating with him. He has been President of the National Constitution Center for eight years and he is very deliberate about bringing that feature of debate into his institution. I have a great deal admiration for doing that since he believes in this model. As you mentioned, we a have a lot of progressives who participate in our events.

We need to have the diversity of viewpoints on the stage.

If we did not, our model would not work. I have always had a warm spot in my heart for the progressives who actually show up and defend their position.

We live in an era in which international law has become increasingly significant. The “constitutionalization of international law” aims to impose tough standards on nation states and national sovereignty. I am wondering whether the Federalist Society has any research on this or if the organization has an international reach.

We do have an international effort, that began as the organization has grown. We have had an international law and national security practice group for over twenty-five years. That group focuses a great deal on customary international law, treaties, national sovereignty, trade, and more.

At the beginning of our conversation you mentioned that the original goal of the Federalist Society was to somehow counterbalance a perceived overwhelming progressive legal doctrine in academia or a “living constitution” interpretation at the judiciary.  Looking back to three decades, how successful was the organization?

The Federalist Society has really benefitted from being known for not taking positions and for not litigating. So, when we are promoting our policy views, all we are trying to do is to make things debatable, to debate ideas. Having said that, 35 years ago originalism was considered to be outside the mainstream. Now, it is within the mainstream even to the point when someone like Justice Elena Kagan declares “we are all originalists now.” Now everyone begins with the text of the statute, as they should. So, I think we have been hugely successful in shifting the narrative about how people ought to approach the law. I think this shift is not necessarily permanent but right now it is well accepted. In light of the changes in the federal judiciary, I think it has become somewhat ingrained there as well. However, law schools are still very reluctant to hire conservative and libertarian professors. At some point, I think

it has to become educational malpractice

if they are not hiring professors who can teach their students how to make originalist and textualist arguments before an increasingly originalist bench.

Many agree that one of the major challenges ahead of the lawyers in the United States is the imbalance in the separation of power both in a vertical and a horizontal sense. Power was taken away from the States and was centralized in Washington and then it was also skewed to the “administrative state” or growing bureaucracy. Can you shed light on how the Federalist Society is trying to address this challenge?

I coedited a recently published book, Liberty's Nemesis: The Unchecked Expansion of the State, which was written with that question in mind. I, myself, am a firm believer in the structural Constitution. The philosophy of the Constitution is that you need to divide power in order to prevent the accumulation of power and in order to prevent tyranny. I think

the “administrative state” is antithetical to the philosophy of the Constitution and the structural Constitution.

The power shift you described is a very complicated phenomenon and it is very hard to undo. It took a hundred years to get here since this problem reaches back to Woodrow Wilson; the Presidencies of Franklin D. Roosevelt and Lyndon Johnson were just “big moments” in the growth of the “administrative state.” Nevertheless, it is a long-haul to try and put that Genie back in the bottle. The legal community is divided on this issue. Some people are very aware of it and they see it as undivided power. But other people see it as Wilson intended it, that the administrative state is composed of learned experts who are just applying the law, properly insulated from politics. But this is exactly antithetical to the Constitution. An administrative agency has delegated power from the Congress, and then gets to define the rules and then they can investigate, prosecute, and fine. All of these powers are housed within one agency.

The European Union has a similar problem, which we associate with democratic deficit. I am wondering how you see this dilemma from overseas.

One huge difference between the United States and the EU is that Europe has very long- established and well-run countries. These countries gave up parts of their sovereignties in order to become economically more formidable in the international arena. I am not a big fan of the EU and I favor national sovereignty, that is why I am not really sorry to see Brexit happen. I can understand the reasons for establishing the EU, however. On the whole, the EU has a problem we just described. It is a

distant government setting standards for countries that are not similar enough for all to strive to the same extent under the same standards.

There are different cultures throughout Europe and that is why a single rule that works in Sweden does not necessarily work in Italy.

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