Judging by reactions expressed in emails and phone calls received by Epstein Becker & Green member Stuart Gerson, the formation of a group of 14 conservative and libertarian lawyers who see the rule of law in peril has struck a nerve in conservative circles.
“These are perilous times for the nation,” said Gerson, who practices in the firm’s litigation and health care and life sciences groups. “One of the things that defines us is our traditional adherence to the rule of law. There just became a consensus that this was a particularly right time to speak out in favor of the rule of law on the conservative side.”
The group, self-styled as Checks and Balances, emerged publicly just two days before the annual meeting in Washington of the conservative Federalist Society where the new group’s formation and “mission statement” are likely to be a hot topic of conversation. That meeting features a who’s who of conservative-appointed federal appellate judges, many of whose names are on President Donald Trump’s list of potential U.S. Supreme Court nominees.
The mission statement speaks not only to the rule of law but also “to the power of truth, the independence of the criminal justice system, the imperative of individual rights, and the necessity of civil discourse,” among other principles.
In addition to Gerson, other members include group founder George Conway III, of counsel to Wachtell, Lipton, Rosen & Katz and husband to Trump adviser Kellyanne Conway; Arnold & Porter partner John Bellinger III; Sidley Austin partners Peter Keisler and Alan Charles Raul; former deputy attorney general Paul McNulty; and King & Spalding senior associate and former Clarence Thomas clerk Marisa Maleck, among others.
Bellinger, a former senior associate counsel to President George W. Bush, said in a New York Times interview: “Conservative lawyers are not doing enough to protect constitutional principles that are being undermined by the statements and actions of this president.”
Gerson, in an interview with The National Law Journal, shared some thoughts about the group and its goals.
How did you become a member of “Checks and Balances”?
Several people who were considering this called me up and asked if I was interested in doing this. We all know each other. A lot of people were in town for a couple of reasons and it was easy to add others. It was a consensus among people who knew each other.
Why did you join the group?
“Conservative” is being styled by some as a hateful, evil view. We may be conservative but this is not a political group. I would hope the values we seek to uphold are transcendent and liberals would adhere to what we say as well as conservatives.
What concerns do you have?
Each of us speaks for ourselves. I was acting attorney general for the first three or four months of the Clinton administration. I agree with what Neal Katyal and George Conway said in their New York Times article [about the unconstitutionality of Matthew Whitaker's appointment as acting attorney general]. I think the [Office of Legal Counsel] opinion is just flat wrong. More than anyone alive, I probably know better that the acting attorney general is a principal officer. Believe me, I took orders directly from the president of the United States. I discussed many things with the president.
I don’t know Mr. Whitaker or how they communicate, but there is no question who is the leader of the Justice Department and acts to bind the United States in many important matters, foreign and domestic.
With my background, I’ve always believed you don’t just leave the Department of Justice. A piece of it stays with you forever. The department is the department of the people, not for one individual, and that has slipped away. The idea of using the Justice Department to attack political opponents is unacceptable.
What exactly will you and the new group be doing?
We ought to adhere to the rule of law. The fact we believe in those things doesn’t mean we have to oppose the administration on everything. Most of us are satisfied with deregulation. We’ve argued for years for less regulations and less court reliance on administrative agencies unaccountable to the people. We’re happy with judges who are originalists or textualists.
At the same time we think it’s important that we stand up for the rule of the law. That’s more important than political philosophy or anything we do as lawyers.
Do you expect the new group to grow in number?
I think it will. I’ve seen a lot of emails today from people interested in signing up. We’re not going to have meetings or a song. We maintain a loose affiliation. You’ll see things and we’ll write things and be available to the press to comment on things. As conservatives especially, we should be communicating conservative values.