The Federalist Society's Silent Brush Off
The conservative think tank is distancing itself from a coup advocate, but doesn't want anyone to find out
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On September 23, I argued that law professor John Eastman—author of memos advising Donald Trump and Mike Pence on a pathway for retaining executive power after being defeated in an election—should be ostracized by respectable society. Part of my thinking was that, in addition to advocating extreme, quasi-authoritarian measures, Eastman also had crossed the line between being a lawyer (presenting legal advice for a client) and being a consigliere (an active legal participant to a criminal gang).
Lawyers have a duty to offer the best advice they can to clients, no matter how unsavoury. But, in his private memos and in his public speeches, Eastman went a step further and supported the lie that the 2020 election was stolen. This, coupled with suggesting there was a path to overturning those election results, put Eastman in the category of deserving shunning by civil society.
I had little hope that my position would find support, but apparently it has, to some degree. The Claremont Institute, a Trumpist think tank where Eastman is a senior fellow, has published a statement decrying the fact that he (alongside other Claremont scholars) is getting the cold shoulder from other academic and policy institutions:
A campaign is trying to prevent the Claremont Institute or its scholars from presenting our views. This is coming from several fronts, including two organizations that exist precisely to air important political disagreements: the American Political Science Association (which effectively cancelled our participation in this year’s annual meeting for the first time in over 35 years) and even more disappointingly, the Federalist Society, which has refused to allow John, a Claremont senior fellow and highly credentialed law professor, to discuss essential constitutional questions. This is particularly galling given John’s prominent role in Federalist Society activities for the past 20 years.
The ambiguous role of the Federalist Society is crucial to this story. They are conservative, but more mainstream than the Claremont Institute. The Federalist Society has a longstanding relationship with Eastman and indeed still maintains a webpage for him as a distinguished member. They haven’t quite severed ties with Eastman but clearly don’t want him to be their public face. The relationship between the Federalist Society and Eastman parallels how establishment Republicans like Senate Majority Leader Mitch McConnell treated Donald Trump after the January 6 riot. McConnell refused to support the impeachment and sanctioning of Trump and just wished the former president, as well as the embarrassment Trump has brought to the Republican party, would simply go away. The political calculation is that it is too damaging to either embrace Trump (and thus alienate many moderate voters) or to condemn him (thus alienating the right-wing base).
Similarly, if the Federalist Society were to make explicit that Eastman is no longer welcome, they would alienate many of their own members and donors (who might, in fact, agree with Eastman). If they continued to host events with Eastman, the Federalist Society would lose their status as a respectable mainstream institution that can be trusted to provide advice to the Republican party.
Like McConnell, the Federalist Society has worked out a dodge, a way to whistle past the graveyard of a failed insurrection in the hopes that no ghosts will be revived. They show signs of embarrassment but not of shame or repentance. On the positive side, the Federalist Society’s sub rosa snubbing of Eastman shows that the badgering of critics has had some effect. That badgering needs to continue and to intensify.
(Edited by Emily M. Keeler)
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