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Conservative Law Movement Faces Reckoning Over Post-Trump Future

Jan. 26, 2021, 10:45 AM

For decades, the conservative legal movement united behind shared goals of filling the federal bench with like minded judges and espousing common principles grounded in an originalist reading of the Constitution.

Now, with a Democratic president, it doesn’t have judges to agree on, and how to define constitutional principles came under question when prominent legal conservatives sought to help former President Donald Trump overturn voting outcomes and disrupt the Electoral College ratification in Congress.

Already, the Federalist Society, the legal networking group at the center of the movement, is facing pressure from within to distance itself from John Eastman, a law professor who supported the fraud claims that incited the Jan. 6 violence at the U.S. Capitol. At least two members, including one of Trump’s own judicial nominees, have called on leaders to block Eastman from helping to organize speaking events—a significant step for conservatives who reject what they characterize as the left’s “cancel culture.”

Others are questioning whether the society has aligned itself too much with partisan politics.

“We should learn from this that the rule of law depends on more than judges. We need to build a culture of constitutionalism beyond the bench,” said Gregg T. Nunziata, former general counsel and a senior domestic policy adviser to Sen. Marco Rubio (R-Fla.) and a former chief nominations counsel to the Senate Judiciary Committee.

The pushback is highlighting divisions within a movement liberals tend to view as a “unified phalanx,” said Steven Teles, a professor at Johns Hopkins University and author of “The Rise of the Conservative Legal Movement: The Battle for Control of the Law.”

“There’s always been a degree of heterogeneity among conservative Republicans,” said Teles, who says conservatives are splitting into factions just as the left is.

Taking a Stand

In interviews with Bloomberg Law, some conservative lawyers described a path forward in which lawyers speak out against bogus fraud claims, hold some of their own accountable, and advocate for the principles that laid the foundation of the conservative legal movement.

The Federalist Society, which considers itself more a debate club than political organization, doesn’t comment on political issues as a general policy and has made no exception in this instance.

While the group itself hasn’t condemned Trump, “if you look at what prominent members of the organization have said in their individual capacities, I think you will find that a great many have spoken out,” said Ilya Somin, a George Mason law professor and Federalist Society member.

They include Jeremy B. Rosen, leader of the organization’s Los Angeles chapter, who said he was “extremely troubled about the direction in which the Federalist Society is heading” in an email to President Eugene Meyer.

“I think that the Federalist Society must take a stand to remove anyone from leadership and to take away the legitimacy of our public forums to anyone who participated in this attack on the rule of law and our constitution,” Rosen said in the email first reported by blogger David Lat and independently obtained by Bloomberg Law. “If we cannot take that stand, then what have we been fighting for all of these years?”

Another Federalist Society member, who asked to remain anonymous due to professional conflicts, sent a similar message to the organization’s leadership asking that Eastman, who retired from his position at Chapman University after the riot under pressure from other faculty, be removed as an endorsed speaker. Eastman stood on a stage with Trump’s lawyer, Rudy Giuliani, at a rally for Trump supporters that preceded the assault.

The Claremont Institute, where Eastman is founding director of the Center for Constitutional Jurisprudence and a senior fellow, didn’t respond to a request for comment from Eastman.

“Those very public activities run directly contrary to the Federalist Society’s mission of a society based on the rule of law,” the member told Bloomberg Law.

Two Federalist Society members involved in the process confirmed that efforts to remove Eastman from his practice group position were already underway and there was a good chance they will succeed.

Forfeiting High Ground

Northwestern University law professor Steven G. Calabresi, who co-founded the Federalist Society and has chaired its board of directors, called Trump’s election fraud claims “an illegal set of attacks on the election results that culminated in a riot at the Capitol building,"which “he basically incited.”

Calabresi, who has at times both defended and criticized Trump during his administration, said, “The failure of conservatives to accept the election results was a mistake.”

Beyond Eastman, some conservative lawyers are uneasy about the participation by 17 Republican state attorneys general in Trump’s efforts to overturn the election results and the roles of Sens. Josh Hawley (R-Mo.) and Ted Cruz (R-Texas), who objected to Congress’s certification of the presidential election results and called for an investigation into fraud.

Marisa Maleck, an attorney in Washington who’s involved with the Federalist Society, who describes herself as a Mitt Romney Republican, said Hawley and Cruz’ actions were “particularly damaging” because their legal bona fides lent legitimacy to election fraud claims that had no merit.

Cruz graduated from Harvard Law School before clerking for Chief Justice William Rehnquist. Hawley graduated from Yale Law School and then clerked for Chief Justice John Roberts. Both serve on the Senate Judiciary Committee and have spoken at Federalist Society events.

“Once you descend from the rule of law to the outcome in your arguments, you’ve forfeited the intellectual and moral high ground,” Ohio Attorney General Dave Yost said of Cruz and Hawley.

Yost, who describes himself as a lifelong Republican, filed an amicus brief on behalf of Ohio against Texas’ challenge to the election results from four states at the Supreme Court. He argued that the relief Texas sought, overturning the election results, “would undermine a foundational premise of our federalist system: the idea that the States are sovereigns, free to govern themselves.”

Speaking Clearly

For conservative lawyers who long opposed Trump, the events surrounding his departure present an opportunity for the movement to return to original principles.

“The movement will continue to try to advance the underlying principles of constitutionalism and limited government, and there will be no shortage of issues to focus on in the coming years,” said Jonathan H. Adler, a libertarian law professor at Case Western. “Hopefully, the Trump-related detour will be done with.”

The Federalist Society should rethink who speaks at its events and “deemphasize the degree to which it highlights partisan government officials,” said Keith E. Whittington, a politics professor at Princeton University.

Specifically, Whittington said the organization needs to “set aside” people like Eastman and Hawley who “often acted at odds with any plausible set of conservative constitutional principles.”

Judicial Rejection

More broadly, the conservative legal movement should work to educate people who were misled rather than exiling them, said Bryan Gividen, a Texas lawyer who describes himself as a solid conservative who’s felt politically homeless in recent years. “I would love to be able to sit down with them and explain how they have been lied to by people in power,” Gividen said.

The conservative lawyers pushing for change point with pride to how most prominent Republican litigators avoided getting involved in election fraud challenges and that judges—including Trump’s own appointees—forcefully rejected the claims.

One example was the way that U.S. District Judge Brett Ludwig, a Trump appointee in the Eastern District of Wisconsin, rejected a request from Trump’s lawyers that the Republican-led legislature allocate the state’s electoral college votes. “This court allowed the plaintiff the chance to make his case and he has lost on the merits. In his reply brief, plaintiff ‘asks that the Rule of Law be followed.’ It has been,” Ludwig wrote.

Those rejections from conservative judges “tell you what you need to know about whether the movement was corrupted by Trump,” Adler said. “I think the answer is ‘no.’”

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Bernie Kohn at bkohn@bloomberglaw.com; Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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