You’d expect the founder of an effort like this to do the cable-news circuit this morning to publicize his effort, but there are no clips of him to be had. One of the group’s members, former DHS chief Tom Ridge, turned up on CNN to talk about it instead. Come to think of it, I’ve never seen George Conway do a television interview despite his prominence in the conservative legal community and his newsy critiques of Mrs. Conway’s boss. Do the Conways have an agreement under which George has to restrict his anti-Trump activities to the printed page? That would make sense, if so. POTUS reads the papers, of course, but nothing sets him off like seeing an enemy chattering about his flaws on the teevee. George staying away from the cameras might be helping to preserve Kellyanne’s job.
I wonder how many political reporters are quietly drafting bad sitcom pitches for Netflix about a harried senior White House advisor trying to balance her work for a president who doesn’t like criticism and her marriage to a star lawyer who, uh, can’t stop criticizing him. Hollywood being Hollywood, though, that pitch wouldn’t make it to the screen intact. Maximum drama would require that the Kellyanne character’s husband be a Bob Mueller figure, not a mere critic but the man investigating the president for collusion with Russia. I’m thinking a cross between “No Way Out” and “Veep.”
Trump isn’t the main target of Conway’s endeavor here, by the way. Not really. This is fundamentally about a spat among big-name right-wing lawyers, with Trump as the cause.
“There’s a perception out there that conservative lawyers have essentially sold their souls for judges and regulatory reform,” Mr. Conway said. “We just want to be a voice speaking out, and to encourage others to speak out.”
The new group’s members say their goal is not to criticize the Federalist Society but to encourage debate about some of the Trump administration’s policies and actions. “This is not a separate organization,” Professor Adler said. “This is not a rump group. This is not a disavowal.”
But the timing of the announcement of the group’s formation, just before the Federalist Society convention, was not a coincidence, Professor Adler added. “This convention has become the most important meeting place for conservative and libertarian lawyers with an interest in politics,” he said. “You go fishing where the fish are.”
If you can spare three minutes, read this post from June for essential context, involving a dispute over Mueller between Conway and Federalist Society co-founder Steven Calabresi. Conway dislikes Trump’s indifference to legal norms, particularly norms involving the Justice Department’s independence from politics. That’s why he went after Trump a few days ago for installing Matt Whitaker as acting AG, an obvious attempt to empower a political ally to play defense for the president against Mueller. What he really seems to dislike, though, is watching other eminent right-wing lawyers who should know better look the other way or even make excuses for Trump’s behavior. Conway wasn’t a co-founder of the Federalist Society but he was an early member, president of the group’s chapter at Yale in the 1980s. When he read a piece from Calabresi making the case that Mueller was unconstitutionally appointed he felt compelled to answer, countering Calabresi’s influence over righty lawyers with his own. And he added this to his counterargument for good measure:
A final observation: It isn’t very surprising to see the president tweet a meritless legal position, because, as a non-lawyer, he wouldn’t know the difference between a good one and a bad one. And there is absolutely nothing wrong with lawyers making inventive and novel arguments on behalf of their clients, or on behalf of causes or people they support, if the arguments are well-grounded in law and fact, even if the arguments ultimately turn out to be wrong. But the “constitutional” arguments made against the special counsel do not meet that standard and had little more rigor than the tweet that promoted them. Such a lack of rigor, sadly, has been a disturbing trend in much of the politically charged public discourse about the law lately, and one that lawyers—regardless of their politics—owe a duty to abjure.
Translation: He’s worried that the Federalist Society, or at least its most prominent members, are in the tank for Trump and might be prepared to give him legal cover if, say, he drops the axe on Mueller tomorrow. A defender of the FedSoc might counter that by pointing to the scoreboard on federal judges. Who is it that’s been feeding Trump names like “Neil Gorsuch” and “Brett Kavanaugh”? Who is it that’s produced an endless supply of smart, dogmatic conservative lawyers to fill federal judicial vacancies on the lower courts? You can dislike the Federalist Society’s chumminess with Trump but so long as he’s rubber-stamping their judicial nominees it’s all in a good cause. To which Conway would say, I assume, that that’s all well and good but a “conservative” legal outfit that abandons principles of limited government in favor of caesarism isn’t a conservative legal outfit in anything but name. Go down that road and you’ll end up with the same relationship to POTUS as evangelicals have, willing to compromise on every standard they ever claimed to have in the name of some policy wins and presidential flattery.
The “Checks and Balances” group is merely an extension of the Calabresi/Conway dispute. Conway and his cohort are trying to nudge the FedSoc back to first principles, worried that the group will end up being coopted by Trumpism. And they should worry. Since the choicest legal jobs in government tend to go to Federalist Society members whenever a Republican’s in office, there’s pressure on the next generation of ambitious young Republican lawyers to conform themselves to what Trump wants. In the age of Reagan it was good for your career if you subscribed to originalism and believed that the Constitution strongly preferred decentralized power. In the age of Trump and (maybe) post-Trump nationalism, it’ll be good for your career if you believe in strong centralized power, particularly in the person of the executive. Team Conway is trying to politely draw a line here before those young lawyers drift from Reaganism to Trumpism. He’ll probably fail. Exit quotation from Kerr to the NYT: “The rule of law has to come first. Politics comes second.”