WASHINGTON – It looks like the third time was the charm for the Federalist Society (search).
Supreme Court nominee Samuel Alito (search) has long been an active participant in the conservative legal society, an influential group that sometimes goes to great lengths to play down its influence. Alito has been a member for at least 15 years and has spoken before both the national organization and its student chapters on a number of occasions.
That's a welcome change for the group after the last two Supreme Court nominations:
—John Roberts (search), the new chief justice, is well-liked by Federalist Society members but belatedly denied he'd ever been a member of the organization after he was nominated to the high court, even though he once was listed in its leadership directory.
—Harriet Miers (search), who withdrew her nomination to the court, once testified that she "wouldn't belong to the Federalist Society" or other "politically charged" groups that "seem to color your view one way or another."
As she tried to salvage her nomination, Miers quickly put out word that she regarded the Federalist Society as an important White House ally, but the damage already had been done. Her deprecating remarks from 1989 had further angered some conservatives already upset about her nomination.
Notre Dame law professor Rick Garnett, a member of the Federalist Society, complained recently that the organization doesn't always get the recognition from the right that it deserves for supplying "in no small part, the intellectual heft for a large part of today's conservative movement in politics."
"Too often, this administration, present nominees, and even Federalist Society members nominated for important government positions have treated the society as if it were something out of 'The DaVinci Code,' or the ultra-secret gaggle of powerful reactionary Rasputins that some on the left imagine, or just a goofy band of train-spotters," he wrote in a blog posting.
Not so Alito. He's been open about his membership in the group, although the society keeps its roster private.
As a federal appeals court judge, Alito's participation in the society has been limited to avoid any suggestion of bias on issues that could come before his court. He moderated a panel discussion about the Patriot Act (search) at the society's November 2004 national conference, introduced a debate on the independent counsel law at the 1989 national conference, and has addressed the society on other occasions. An article he wrote on the role of the lawyer in the criminal justice system, based on a speech he made at the 1997 convention, was published in one of the society's newsletters.
Even with all of that involvement, though, there are no open high-fives coming from the society's leadership about Alito's nomination to the high court.
"We really don't comment on things in that type of way," said society President Eugene Meyer.
Leonard Leo, the society's executive vice president, took a leave of absence to help push through Bush's Supreme Court nominees but Meyer said Leo is back at work now coordinating the society's next national conference, which begins next week. Leo made no public comment on Alito's nomination but helped lead a conference call Monday with conservative groups and legal experts, and will continue to work for the nomination on his own time.
The quiet reaction of the society's leadership notwithstanding, Alito's Federalist Society membership is seen as "an important signal to conservatives in the legal community," said John Yoo, a law professor at the University of California, Berkeley, who worked in the Bush Justice Department during 2001-03.
"It shows an interest in thinking deeply about the role of the courts in society and the proper interpretation of the Constitution based on its text and history," said Yoo, himself a member of the Federalist Society since his college days.
Yoo said the administration has been sensitive about the society's influence ever since receiving "McCarthyite" criticism early on from liberals unhappy with the Bush team for drawing heavily from the society's ranks for top government jobs and judicial nominations.
Duke law professor Erwin Chemerinsky, a liberal who has spoken at Federalist Society events, said membership is one more way of letting conservatives know that Alito is "one of them," although it shouldn't be a basis for questions at his Senate confirmation hearing.
But Ralph Neas, president of the liberal People for the American Way (search), disagreed, saying Alito's membership in the society is fair game for the hearings.
"Of course membership in or participation in Federalist Society events doesn't disqualify someone from office but it can help people understand the judicial philosophy of the nominee," Neas said. "The Federalist Society likes to pretend it's just a debating club, but for last 20 years it has been at the forefront of the efforts to push a right-wing counterrevolution in the courts and undo decades worth of precedent."