Writing last week for First Things, John Murdock argues that the Federalist Society should think twice before welcoming Ted Olson back into the Fed Soc limelight. Why? Because Olson — a famous Supreme Court advocate, a Reagan administration attorney, counsel for George W. Bush in Bush v. Gore, and member of Fed Soc’s Board of Visitors — argued on behalf of gay equality in Hollingsworth v. Perry, and he just coauthored an entire book on why gays should be treated equally under the law.
The National Press Club event will mark the latest in the complicated dance of distance and embrace between the nation’s premier conservative legal organization and a man who professionally benefited from his association with the group but then used his considerable cachet to further a cause opposed by many of its members.
Rather than sharing the room with a large elephant while he discusses whether BP is overpaying for its spill, I would like to see Olson first defend the mess he made of democracy in California while sharing the stage with conservative luminaries who have yet to embrace judicial activism.
Ok. But if Murdock applies his principle (kick out all pro-equality advocates) then Fed Soc will be considerably more exclusive. Say “no way” to Judge Posner, the famous conservative circuit judge who last week discarded a gay marriage ban:
The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction — that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended — is so full of holes that it cannot be taken seriously.
Heterosexuals get drunk and pregnant, producing unwanted children; their reward is to be allowed to marry. Homosexual couples do not produce unwanted children; their reward is to be denied the right to marry. Go figure.
Richard Epstein — the leading living academic voice of libertarianism — would need to be turned away at the Fed Soc doors for his support of gay marriage. So too Robert Levy, another member of Fed Soc’s Board of Visitors, and author of lots of articles in support of gay marriage. Etc. Etc.
The Federalist Society is currently the biggest and most powerful conservative legal group in the country. Should it follow Murdock’s recommendation it would be an obscure organization by 2024.