The American Constitution Society had its coming-out party this weekend. Having weathered its birth and adolescence in political exile, the liberal legal network brought its annual conference to the historic Mayflower Hotel in Washington, D.C., where 1,000 progressive law students, professors, lawyers, and judges spent two long days marveling at their swift rise to power—and puzzling over what to do with it.
The doors to legal and political influence are open to ACS now, as a spate of articles last year announced. After devoting the past eight years to constructing its career pipelines, ACS can finally delight as it all spills out into actual jobs for members. A panel of high-ranking Obama administration officials Friday night personified the new reality: Former ACS Executive Director Lisa Brown, now staff secretary to Obama, was joined by former board member Ron Klain, now Vice President Biden’s chief of staff. ACS also claims the current or future heads of three important legal organs—the offices of Legal Policy and Legal Counsel and the Justice Department with Eric Holder—as well as numerous advisers and mentors to the president himself.
“Some of you are already a part of the administration. Many of you will be part of it,” says Spencer Overton, another ACS board member and now deputy director of the Office of Legal Policy, looking out at the audience. “Please continue to be engaged. You really do sustain us.”
In almost every particular, ACS has studiously followed the example of its own hero/foil: the Federalist Society. Founded in 1982, the Federalists grew to prominence during the Reagan years by identifying, recruiting, and appointing young conservative believers to the legal firmament. With a tight leadership cadre and by refusing to take positions likely to divide its membership, the society became, in the Bush era, what political scientist Steven Teles calls in his book, “the most vigorous, durable, and well-ordered organization to emerge from this rethinking of modern conservatism’s political strategy.” George W. Bush’s fondness for the Federalist crew knew virtually no bounds, as he cheerfully staffed his administration with current and former members, from his attorney general, John Ashcroft, to his solicitor general, Ted Olson, to his Homeland Security secretary, Michael Chertoff.
ACS, founded in the wake of Bush v. Gore, is structurally identical, with student chapters and lawyer chapters, periodic white papers, and innumerable speaking events—right down to the practice of including one ideological misfit on each panel in the interest of vigorous debate. (Organizationally, there’s still a lot of catching up to do—the Federalist Society raised $11 million in 2007, while the ACS pulled in $3 million; although its take has risen precipitously in recent years, and the media attention won’t hurt.)
ACS has drawn strength from the shenanigans of the Bush-era players. Or as ACS Executive Director Caroline Frederickson spoke of the opposition at her law school in a speech to the full group: “Every time you turn around and there it was, Darth Vader.”
But if the conservative establishment was once the ACS’s greatest recruiting tool, enthusiasm over the Obama administration has taken its place, and excitement is running high. Students and young lawyers packed the conference rooms, looking for a piece of the action. Georgetown Law student Dallas Hammer had been a member of the Federalist Society and switched his affiliation just this year. Lauren Smith, a student at the University of Michigan, says she’s keeping her eye out for a job with the administration, and ACS membership was a nice check in her favor.
“I’m just here for the networking,” says a prim Stanford student, sitting next to a bow-tied classmate, over a Caesar salad lunch. Ladder-climbing. It isn’t just for young Federalists anymore.
Of course, membership in ACS isn’t the punched ticket to success that association with the Federalist Society was in Bush’s day—since being a member of such a conservative group carried some stigma on liberal college campuses, it was also a surer indicator of one’s ideological bona fides. In the Bush administration, it paid off: In 2005, the New York Times reported that “15 of the 41 appeals court judges confirmed under Mr. Bush have identified themselves as members of the group.”
“I wouldn’t want to be a part of a group that wants to do that,” Smith told me. The group wants to create the Federalist-style pipeline but remains leery of being seen as a liberal cabal.
And once they get into office, ACS means to hold its brethren accountable. This weekend was more than just an Obama pep rally; the panel of White House defectors faced some tough questions over the new administration’s continued use of military tribunals for Guantanamo detainees and slow progress on gay rights. Brown and Klain could only respond with the standard insider line: The president cares about these issues very much. We’re doing the best we can.
“You guys are cowards!” goads former Bush Justice Department official Noel Francisco, leaning back and grinning from the dais. No one takes his bait.
If there’s one area, beyond ideology, where ACS seeks to deliberately differentiate itself from the Federalist Society, it’s in an institutional commitment to being nice. Keynote speakers were frequently praised as “thoughtful” and “committed”; awards were given out for work on behalf of the downtrodden. In her lunchtime address, Michigan Gov. Jennifer Granholm pleaded with judges to consider the fate of unemployed autoworkers, miming the motions of one man as he placed his hands on her shoulders, asking for help. The steely-eyed Elizabeth Warren, TARP overseer and Harvard Law luminary, pounded away at the need for Obama’s planned Consumer Financial Protection Agency to look out for the interests of ordinary families. And Stanford Law School professor Pam Karlan—the wisecracking crowd favorite, resplendent in a boxy gold jacket—described a special place in Dante’s hell for those who betray their convictions for profits. At the concluding banquet, Executive Director David Lyle thanked the Unite Here servers who staffed the convention—another union, SEIU, is an ACS contributor.
But dedication is not an ideology, and communicating ACS’s guiding philosophy to those same ordinary people they seek to serve proves much harder. The society’s new manifesto, co-authored by Karlan and distributed to all conventioneers, takes the form of a 137-page book about reclaiming the Constitution for progressives. Reva Siegel and Jack Balkin of Yale Law School have edited another essay collection, called The Constitution in 2020—the mirror image of a Reagan-era conservative project—and they have come up with the concept of “democratic constitutionalism,” emphasizing social movements and change through legislative, rather than judicial, means. These compendiums are publicly available but currently circulated to the membership and on Capitol Hill. Not much use in combating a deeply rooted public perception about judging that former ACS board Chair Paul Smith describes to me thusly: “The concepts are out there, so that your taxi driver might say, ‘I don’t think you should go beyond the original intent of the Constitution.’ “
The six law professors at Siegel and Balkin’s panel on how liberals should talk about the Constitution agree on the need to find new language that might resonate with the rabble. From there, no one’s quite sure.
“Why not read the preamble?” suggests Vicky Jackson, who teaches at the Georgetown University Law Center. “We say we have purposes. And our purposes, they’re pretty good.”
“Yeah, the preamble has served progressives well,” agrees University of Texas’ William Forbath.
“So we should be perambulatory?” Balkin jokes.
“I’d go for justice and the general welfare, too,” says Larry Kramer of Stanford.
“The fact is that this is not bumper-sticker material,” shrugs ACS board Chairman Goodwin Liu after I ask him how the group plans to get its message out. “And the whole point about the bumper sticker is that it degrades the public’s understanding.” The ACS doesn’t want to water down its message for popular understanding. It really just wants people to just get it.
ACS has done well with the Federalist Society’s game plan. But in stepping into that arena, the liberals are still letting their opposition define the rules of play. They’re even aware of the danger: Pam Karlan, describing the ACS-published book she authored with Liu and Chris Schroeder, says in the opening plenary: “We could have titled it We’re Liberals and We’re Not Ashamed. But we thought that would be a little defensive.”
As Berkeley Law professor Rachel Moran notes on Siegel and Balkin’s panel, the Sotomayor nomination hasn’t exactly been a triumph of progressive PR, either. Rather than defending her using ACS’s general philosophy—that the Constitution should be responsive to people’s lived experience—Democrats like Patrick Leahy have repeatedly emphasized her strict adherence to following the law. A concession, perhaps, to the Federalist Society’s towering rhetorical legacy.
