In an op-ed today in the New York Times, Caroline Frederickson and Eric Segall contend that the controversy over the draft advisory opinion on judicial membership in the Federalist Society and the American Bar Association “has shown beyond doubt … that the Federalist Society has distorted how it actually operates.” But it’s their own op-ed that is replete with distortions.
1. Frederickson and Segall take issue with the Federalist Society’s statement that it does not “sponsor or endorse nominees and candidates for public service.” For starters, this is a bizarre ground on which to defend the draft opinion’s disparate treatment of the Federalist Society and the ABA, as the ABA has long done formal ratings of all federal judicial nominations.
But Frederickson and Segall don’t undertake to show that the Federalist Society as an institution sponsors or endorses nominees and candidates for public service. Instead, they impute to the Federalist Society actions taken by Leonard Leo in his individual capacity, including when on leave from the organization, as well as actions taken by “an immensely influential but largely unseen network of conservative organizations, donors and lawyers” at whose “nexus” Leo is said to “sit.” (Ouch. That must be uncomfortable for him.)
But the White House under presidents of both parties has routinely received informal advice on judicial nominations from lots of people. It’s quite a leap to maintain that their advice is to be imputed to their employers, even more so to others who are said to be in their “network.” Are Segall’s views to be charged to the law school that employs him? Are the law firms whose attorneys formally take part in the ABA’s judicial-evaluations process accountable for the votes of those attorneys?
2. Frederickson and Segall label “highly unusual” the letter from 200-plus judges in response to the draft opinion. They don’t disclose, though, that the Committee on Codes of Conduct that drafted the opinion invited judges to offer their comments on the draft. Nor do they see fit to note the fact, inconvenient to their narrative, that the signatories include some prominent appointees of Democratic presidents (e.g., Second Circuit judge José Cabranes).
Frederickson and Segall also contend that in stating that “it is simply not true that the Federalist Society takes legal or policy decisions,” the 200-judge letter was “[s]ignificantly … silent on whether the group supports nominees for public service.” But it is odd to read the judges’ statement as being silent on that question. The 200-judge letter makes the quoted statement in the context of responding to the draft opinion’s assertion that the public reasonably “would view judges holding membership [in the Federalist Society] to hold, advocate, and serve … conservative interests.” In context, the judges’ statement that the Federalist Society does not take legal or policy decisions is fairly understood to include the legal or policy decisions on who ought to be nominated for judgeships.
(As I’ve made clear from the outset, I won’t quarrel with anyone who maintains that federal judges shouldn’t be members of the Federalist Society or the ABA. Whether or not that is the best reading of the Code of Conduct, I think that it’s a plausible one. What strikes me as indefensible, and what I haven’t seen anyone even attempt to offer a defense of, is the draft opinion’s conclusion that judges can’t be members of the Federalist Society but can be members of the ABA.)