Bench Memos

Law & the Courts

200-Judge Letter Against Draft Advisory Opinion on Judicial Membership

On top of Carrie Severino’s post and my own about the inane attack on D.C. Circuit nominee (and current federal district judge) Justin Walker for signing his name to it, I think it worthwhile to review the excellent letter from 200-plus judges in opposition to the Code of Conduct Committee’s proposed opinion advising that federal judges may not be members of the Federalist Society but may be members of the American Bar Association. As I’ve noted, the signatories who were appointed by Democratic presidents include federal appellate judges José Cabranes, Julie Carnes, Frank Hull, Cheryl Krause, Stanley Marcus, and Richard Tallman. (I’m pleased to have made the proposed opinion public back in January, and I’ve previously critiqued it in various posts, including here, here, and here.)

I offer here an overview of the letter and some excerpts from it, but I encourage interested readers to read its crisp 7-1/2 pages on their own.

The judges summarize their objections up front:

We write to express our deep concern with the exposure draft of Advisory Opinion No. 117, recently issued by the Judicial Conference’s Code of Conduct Committee. We believe the exposure draft conflicts with the Code of Conduct, misunderstands the Federalist Society, applies a double standard, and leads to troubling consequences. The circumstances surrounding the issuance of the exposure draft also raise serious questions about the Committee’s internal procedures and transparency. We strongly urge the Committee to withdraw the exposure draft.

They frame their discussion by highlighting that the Code of Conduct and its Commentary emphasize that “a judge should not become isolated from the society in which the judge lives” and affirmatively “encourage[]” judges to “contribute to the law” through “organization[s] dedicated to the law.” (I’m quoting the Commentary to Canon 4 that the letter invokes.)

The judges explain that the Committee’s previous position that membership in the Federalist Society is consistent with the Code of Conduct is correct and that the Committee’s reasons for departing from “its long-held understanding of the Code” are unsound:

Take the claim that the Federalist Society advocates particular policies, rather than the general improvement of the law. The draft fails to identify a single “policy position” taken by the Federalist Society. That is because—to the best of our collective knowledge—the Federalist Society has never, in its several decades of existence, lobbied a policymaking body, filed an amicus brief, or otherwise advocated any policy change. We are at a loss to understand how membership can be seen as “indirect advocacy” of the organization’s policy positions when the organization itself takes no policy positions.

The most the Committee can say is that the Federalist Society “describes itself as ‘a group of conservatives and libertarians dedicated to reforming the current legal order’” and that it has “promoted appreciation for the ‘role of separation of powers; federalism; limited, constitutional government; and the rule of law in protecting individual freedom and traditional values.’” These broad, bedrock principles lie at the foundation of our American constitutional order. Joining an organization that supports these principles simply cannot prohibit judicial service. Adherence to these principles at most suggests partiality in favor of the Constitution itself, which all judges must support and defend.

The judges also argue forcefully that the draft opinion’s “disparate treatment” of the Federalist Society and the American Bar Association is “untenable” and “rest[s] on a double standard”:

For some time now, the ABA has taken “public and generally liberal positions on all sorts of divisive issues.” What’s more, the ABA does so by directly advocating for particular outcomes in particular cases. Not long ago, the ABA submitted an amicus brief in a pending Supreme Court case related to abortion. The ABA also filed amicus briefs in other contentious cases like Masterpiece Cakeshop and Trump v. Hawaii. And before that, the ABA weighed in on cases involving gender identity, affirmative action, same-sex marriage, and the Second Amendment. In fact, over the last decade, the ABA has filed more than 100 amicus briefs in many of our nation’s most charged cases. The Federalist Society has not filed even one. Likewise, the ABA routinely lobbies Congress, while the Federalist Society does nothing of the sort.

The judges explain that the Committee’s position would have dramatic implications for judicial membership in organizations, such as the American Law Institute, that “advocate detailed changes to all aspects of the law,” and in specialty-bar associations (e.g., the Hispanic National Bar Association) that “often take policy positions and advocate for legal change.” Further, it raises serious questions about judicial involvement in law schools (many of which “frequently litigate to advance specific legal positions” and “take policy positions on pending legislation, executive actions, and judicial nominations”) and in religious organizations (which often “take policy positions” on hotly contested issues).

The judges also highlight some amazing procedural anomalies that they have been made aware of (my emphasis):

Since its inception, the federal judiciary has insisted that each judge on a collegial body may state his or her individual views on the question presented. Yet reports suggest that no member of the Committee was permitted to dissent, despite some members’ strong disagreement with the exposure draft. Other reports suggest that at least one member of the Committee was barred from voting on the draft.

They call for the Committee, if it adheres to its draft opinion, to answer these specific questions:

Was the Committee unanimous in its support of this policy? If not, how many members dissented, and what were their reasons?

Were members of the Committee allowed to note and explain their dissents? If not, why not? Does any regulation of the Judicial Conference authorize the suppression of dissent?

Are any members of the Committee also members of the ABA? [EW: Yes. ] If so, did these members recuse themselves from working and voting on the exposure draft? [EW: Fat chance.]

The Wall Street Journal editorial page passes along word that the Committee has received more than 70 letters from judges in response to its draft opinion. I hope that the Committee promptly makes all of those letters public.

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