Bench Memos

Law & the Courts

The Long Reach of the Committee on Codes of Conduct Draft Advisory Opinion

Recently, I wrote a five-part series on the Judicial Campaign to silence the Federalist Society. Today I dive deeper into Part 3 of that series, which looked at how the Committee on Codes of Conduct draft advisory opinion would threaten judges’ involvement with the legal profession and affinity bar associations.

Supposedly key to the Committee’s reasoning that judges should not be members of the Federalist Society is the fact that it “serve[s] or promote[s] a particular constituency, cause or agenda,” as opposed to merely seeking to “benefit the legal system as a whole.” But perplexingly, the draft advisory opinion completely ignores the fact that the Federalist Society does not take positions or advocate on particular issues, nor does it lobby or litigate before any state or federal courts.

The Committee on Codes of Conduct likewise fails to recognize that the standard it sets forth would necessarily prohibit judicial membership in a host of affinity bar associations: organizations that clearly promote a “particular constituency, cause or agenda.”  In this post, I look at five affinity bar associations and examine the various forms of advocacy they each undertake.

American Association for Justice (AAJ)

Formerly known as the Association of Trial Lawyers of America, the AAJ describes itself as “an advocate for trial lawyers on a broad range of issues (emphasis added).”

AAJ regularly files amicus briefs, including on issues involving LGBT rights, medical malpractice, and consumer credit. It also has an active political action committee that made over $7.7 million in campaign contributions in 2018 alone (94 percent of that money went to Democratic candidates). The AAJ has spent $58.5 million since 2007 lobbying Congress and the federal government on a host of issues.

 Hispanic National Bar Association (HNBA)

The HBNA describes its mission in part as “advocacy on issues of importance to the 58 million people of Hispanic heritage living in the U.S. (emphasis added).”

To help advance its mission, the HNBA regularly files amicus briefs: It has litigated in support of affirmative action and in opposition to the travel ban. It has also weighed in on the issue of redistricting, arguing for Congressional apportionment on the basis of total population rather than voter population.

In addition to its litigation efforts, the HBNA regularly engages in executive and legislative advocacy. It supported passage of the Dream & Promise Act (H.R. 6, 2019), which would have extended legal status to so-called DREAMers with a path to citizenship and opposed the immigration reform legislative framework proposed by President Trump. The HBNA has also advocated for criminal justice reform and Puerto Rican debt relief. It has opposed some of President Trump’s nominees, including Jeff Sessions and Brett Kavanaugh.

National LGBT Bar Association

The National LGBT Bar Association’s mission is to promote “justice in and through the legal profession for the LGBTQ+ community in all its diversity” (emphasis added).

The National LGBT Bar regularly engages in judicial advocacy, filing amicus briefs “promot[ing] a particular constituency, cause or agenda.” In recent years, it has weighed in on the issue of transgender bathrooms, the use of state civil rights laws to override federal constitutional religious liberty protections, protections for LGBT employees under Title VII, the revocation of trademark protection for terms that could be considered offensive to racial minority groups, the inclusion of gender dysphoria as a covered condition under the Americans with Disabilities Act, and in support of the recognition of a constitutional right for same-sex marriage.

The LGBT Bar has also advocated for legislation, including banning the use of the LGBTQ+ panic defense in court and discrimination in jury selection on the basis of sexual orientation or gender identity.

National Asian Pacific American Bar Association (NAPABA)

The NAPABA describes its mission as promoting “justice, equity, and opportunity for Asian Pacific Americans.” It frequently files amicus briefs. In recent years, it has litigated against the travel ban, in support of the revocation of trademark protection for terms that could be considered offensive to racial minority groups, and in support of the legality of race-conscious admissions policies at colleges and universities.

The NAPABA has also advocated for a number of politically charged causes, including in support of affirmative action and against legislative provisions requiring race neutrality, such as California’s Proposition 209. It has adopted various resolutions regarding immigration policy issues, including on DAPA, DACA, birthright citizenship, and refugee resettlement. NAPABA has opposed legislation that would restrict voter registration, limit early voting, or require voter identification.

National Native American Bar Association (NNABA)

The NNABA describes its mission as “advancing justice for Native Americans (emphasis added).”

In recent years, the NNABA has filed amicus briefs supporting the legality of race-conscious admissions policies at universities and the revocation of trademark protection for terms that could be considered offensive to minority groups. It also filed briefs opposing the travel ban and arguing for the constitutionality of the Indian Child Welfare Act.

The NNABA also regularly weighs in on legislative and executive actions. It has advocated for legislation extending the federal adoption tax credit to tribal court adoptions and for the strengthening the adoption protections of the Indian Child Welfare Act. NNABA has also pressed for the recognition of Indigenous People’s Day instead of celebrating Columbus Day. It has taken positions on various federal judicial nominees, such as supporting Allison Eid and opposing Brett Kavanaugh.

***

To be clear, there is nothing wrong with the advocacy and litigation that bar associations engage in. The point is that these groups represent just a small sample of the many organizations that would logically fall within the reach of the draft advisory opinion.

The draft advisory opinion offers that “a judge may participate in a law-related activity if it is directed toward improving the law or the legal system itself.” This is simply not the case for AAJ, HNBA, National LGBT Bar Association, NAPABA, NNABA, and many, many others. These groups are each unabashedly “promot[ing] a particular constituency, cause or agenda,” and “utilizing the law or the legal system to achieve an underlying social, political, or civic objective.” Of course, this is not what the Federalist Society does, which is what makes the draft advisory opinion so confounding, as well as flat out wrong.

The draft advisory opinion pays lip service that it is important for judges to be civically engaged, citing Canon 4’s warning that “complete separation of a judge from extrajudicial activities is neither possible nor wise” and that a judge “is in a unique position to contribute to the law, the legal system, and the administration of justice.”

Does the Committee on Codes of Conduct recognize the implications for judicial participation in affinity bar associations, should the draft advisory opinion be adopted, and how the opinion conflicts with the goals of Canon 4? I have my doubts.

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