What secret handshake?

“Why is it that membership in the Federalist Society has become the secret handshake of the Bush nominees for the federal court?” asked Sen. Richard Durbin (D-Ill.) during judicial confirmation hearings in 2003. Now that Supreme Court nominee John Roberts has been exposed as having some involvement with the Society, left-wing activist groups are renewing Sen. Durbin’s speculation, implying that there are some devious machinations at work.

The short answer to Sen. Durbin’s question is, “It’s not.” The long answer is, “It’s not secret.”

It’s true that the Federalist Society has become the central organization for conservative and libertarian lawyers and law students to hobnob in. Membership is cheap, it comes with a free subscription to the Harvard Law Journal for Law and Public Policy, and members get to hear about local seminars that cover a variety of legal topics. It’s probably worth it for lefties to join up, too, if just for the Journal.

But does the Federalist Society mold its members, starting when they are but tender and impressionable law students, into an army of intellectual extremists, as many on the Left fear?

This is a rehash of the speculative angst that flew around during the 2004 presidential election when it was revealed that both Sen. John Kerry and President George Bush had been members of the infamous Skull & Bones society at Yale. For those who had never been members–and that was just about everybody else in America–suddenly everyone wondered just what it meant to be a “Bonesman,” and what terrible secrets might be hidden in the tomb-like sanctum the society resides in.

The only reason this raised a fuss is because of the secretiveness of Skull & Bones. They probably don’t have anything interesting to hide–just the fact that everything was hidden made imaginations run amok. So, too, does the Federalist Society’s secrecy fuel questions about its intentions. Except, of course, that the only thing secret about the Federalist Society is its membership list.

That’s right, nothing is preventing people from any political persuasion from attending Federalist Society seminars and events. When you sign up for membership, there is no background check to make sure that you’re ideologically compatible with the other members of the Society. If your check clears, you’re in. There’s no initiation, no chanting, no brainwashing. There’s no prohibition keeping you from telling everyone you know that you’re a member. It’s just a bunch of like-minded people exchanging information openly.

It’s no different for the leftist’s version of the Federalist Society–the American Constitution Society. If membership in the Federalist Society is some kind of red flag, then the same should hold true for the ACS. Does that mean that we should expect future Democrat presidents to only nominate ACS members, or that Republican senators should reflexively reject judicial nominees that happen to be members? It would be a sad day if that were the case.

The fact of the matter is that because it’s so easy to be a member of the Federalist Society, there’s very little reason for conservative and libertarian lawyers and law students to not be members. Like-minded people tend to gather together, and the Federalist Society tries to make this as easy as possible. That’s really all there is to it.

Besides, hiding one’s membership list is often a good thing. For the NAACP, it means protecting members from racist reprisals. For the Federalist Society, it means not having your mailing information given to every right-wing book-of-the-month club. Sadly, my membership to the ACLU came to an end after I started getting mail from a plethora of left-wing organizations, from MoveOn.org to anything with Jimmy Carter’s name on it. A little membership privacy there would have been nice.

Most importantly, there’s no leadership structure to the Federalist Society that demands conformity to a certain set of principles. In fact, the Society is very cognizant of the disagreements between the conservatives and libertarians that make up its membership, and the most popular seminars tend to be the ones where these two factions disagree. If the Society were really trying to create litmus tests for future judicial candidates, this would be a sign of weakness. Rather, organizers see it as a sign of intellectual vigor.

I, for one, don’t really care if Judge Roberts is a Federalist Society member or not. That he clerked for Chief Justice William Rehnquist and worked in the Department of Justice during the Reagan Administration tells me a lot more than whether he chipped in a few bucks for a scruffy Federalist Society membership card. For left-wing activists to be making a dust-up over this is a waste of time.

James N. Markels is an attorney and a regular columnist for Brainwash.