An ethics committee, composed of federal judges, recently circulated a draft opinion concluding that it would be unethical for a federal judge to be a member of the Federalist Society for Law and Public Policy. According to the committee, the public may perceive the Federalist Society as having partisan aims, so the public may in turn perceive a judicial member as partial.
True, judges are ethically obligated to avoid the perception of partiality. But in its well-meaning attempt to protect the judiciary’s reputation, the ethics committee does not seem to have considered that it is being manipulated for political ends.
The Federalist Society is not without principles. It exists to promote “awareness” and “application of” the following ideas: “that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.”
If those principles are “partisan,” then basic principles espoused by the Supreme Court and our country’s founders are “partisan” too. The Federalist Society’s principles are oriented towards improving our law and legal system. Certainly there is disagreement about what improvement in our legal system looks like—for example, many law professors advocate for judges to embrace policymaking, whereas the Federalist Society would disagree—but there is nothing wrong with judges taking sides in “spirited debates” about the law. Rather, their perspective as legal experts is especially important. And if taking sides in legal debates is permissible, it cannot be unethical for judges to belong to an organization because it advocates for legal principles sanctioned by the Supreme Court and our founding fathers.
It should not matter much that the Federalist Society is composed of conservatives and libertarians. Were that enough to make a judicial member seem partial, it would also raise ethical concerns for a judge to be a member of a Southern Baptist or Unitarian Universalist church. And no one thinks judges lose their opinions when assuming the bench.
Perhaps more important, everything the committee identified about the Federalist Society has been true for decades. So why now? What changed?
From its inception in the 1980s, the Federalist Society has cultivated thinkers who believe our judges should respect their limited role in our system of government and should not interpret the law according to their policy preferences. President Trump promised to appoint just that type of judge. Unsurprisingly, he turned to people associated with the group with the best Rolodex, the Federalist Society.
Just because one political party happens to think its aims are best furthered by judges who align with the Federalist Society’s priorities does not make the Federalist Society “partisan,” at least not in any problematic sense. (“Partisan” sometimes means something problematic and other times not.) Don’t agree? Imagine if President Trump committed to filling the next open seat on the Supreme Court based on the recommendation of Justice Ginsburg. She wouldn’t become a Republican toady by taking him up on the offer.
Nonetheless, politicians soon started calling the Federalist Society a “fringe, right-wing group,” trotting out alarmist theories about “dark money” even in confirmation hearings. News and opinion sites, blogs, social media, and even advertisements repeated these talking points.
A misperception about the Federalist Society, probably only held by a small but loud group, was manufactured almost overnight.
There is reason to think that the attacks on the Federalist Society are for political ends. Consider the amicus brief submitted to the Supreme Court by several senators in a controversial, high-profile case. The brief made a not-even-veiled threat that the Court would be “restructured” if it did not rule how those senators thought best. The brief was an unprecedented attempt to influence the outcome in a specific case by brazenly stoking the Court’s fear of appearing partisan. And sure enough, the Federalist Society bogeyman was featured in the brief.
I found the controversy surrounding the Federalist Society to be good fodder for jokes. It does not support legislation, donate money to politicians, or take sides in controversial cases. I serve as the president of the Federalist Society chapter in Chattanooga and have attended the “FedSoc” National Convention several times. Several times I have heard jurisprudential liberals, speaking at FedSoc events, commend the organization for its commitment to giving a platform to a broad range of views. The Federalist Society is not a shadowy, suspicious cabal carrying water for “big business” or the Republican party.
But is the judiciary simply bound by its ethics code to accept the manufactured misperception and prohibit judges from being members of the Federalist Society? No. The code of judicial ethics does not prohibit the use of common sense. Litigants regularly try to manipulate judges and are met with firm resistance.
Consider a judge who has been sent a death threat by a criminal defendant appearing before the judge. Most members of the public would think that the judge, having been threatened with death, would be less fair to that defendant. Yet despite the risk of appearing impartial, a judge may refuse to recuse herself if she deems the threats to be an attempt to procure a recusal in the hope of getting reassigned to a more lenient judge. This concept applies to both obscure and well-publicized cases, lest the press be given the power to “control the choice of judge.”
Since Gideon, small groups of highly motivated people have been able to make themselves seem more numerous than they actually are just by making a racket. The internet magnifies that effect tenfold. Throw in the natural instinct towards confirmation bias, and it is now common for people to think that fringe ideas are actually well-respected and mainstream, and vice versa. The committee must recognize that attempts to use negative publicity to manipulate ethical rules for partisan advancement will only increase over time, especially if given a friendly ear.
Common sense therefore requires accounting for the risk of manipulation: The more evidence that a perception of partisanship was manufactured for ulterior reasons, the more emphasis judges should give to whether that perception is justified. The alternative is to give squeaky wheels a veto over judicial engagement with reputable legal organizations.
The ethics committee should just treat the Federalist Society the same way it treats another weighty legal organization, the American Bar Association.
The ABA regularly takes positions on controversial cases, legislation, and political issues, under the guise of generally supporting the rule of law. In spite of this explicit partisanship, judicial membership in the ABA is innocuous, according to the ethics committee, due to formalistic divisions within the ABA and fine print on the ABA’s website. But does anyone truly think that the public forms its perceptions based on such legalisms and hair-splitting? The committee is right to conclude that judicial membership in the ABA is not off-limits, but the defensible reason is that it would be unreasonable to think judicial members hold all the partisan views the ABA espouses.
Similarly, it is unreasonable to think judges are partial just for being members of the Federalist Society. The Federalist Society is committed to fostering serious thinking about how to improve the law. Misguided, negative publicity to the contrary should receive the same antipathy judges give when faced with other attempts at manipulation.
Human nature, combined with the internet, promises there will always be people willing to manipulate the judiciary’s honorable sense of ethics in order to score political points. Our judiciary would be no less august were it to apply its street smarts in weeding out manufactured ethical concerns from real ones.