Sunday, May 8, 2022

Third Parties in the Judicial Nomination Process: the Federalist Society and the Liberal Response

By Nicholas A. Alfano
Nicholas Alfano is a current 2L at Albany Law School. He graduated from Seton Hall University, where he majored in Political Science and Philosophy and minored in Economics. Nicholas is a founding member of the Catholic Law Students Association where he currently serves as treasurer. He has previously interned with the NYS Division of Consumer Protection’s Utility Intervention Unit.

In recent years, one of the most contentious issues in American politics has been judicial appointments. In the 2016 and 2020 presidential elections candidates, Donald Trump and Joe Biden promised who they would appoint to the judiciary. However, while Biden promised appointments of various professional and demographic backgrounds, Trump declared his judicial appointments, saying he would choose them by an outside group: the Federalist Society. The Federalist Society is an organization of libertarian and conservative lawyers that promote originalist and textualist interpretations of the Constitution and the law.
The Federalist Society is one of the most influential groups within the Republican Party, both allied in promoting legal conservatism. All three of Trump’s Supreme Court appointments were Federalists. The Federalist Society facilitates a robust network of conservative lawyers and legal activists for the Republicans to draw from for various positions, be it jobs within the legislature and executive or the judiciary (and many times both, with Brett Kavanaugh as the premier example). The Federalist influence on the court has had some noticeable effects. The tribunal took a rightward turn and became younger and less experienced but more connected with other legal conservatives.
Conversely, there exists no direct analog for Democrats and liberal lawyers, though not for lack of trying. Led by the American Constitution Society, liberals have been attempting to recreate the network the Federalists have built. Still, these efforts have not managed to rival the Federalists in reach and prestige so far, and, in the same token, this is due to several factors, including the lack of an attractive legal doctrine alternative to originalism and textualism. As such, liberals have advocated for other means to rebalance the courts, including court-packing and quick appointment of judges.

To read the paper, open HERE.