Bench Memos

Law & the Courts

Draft Judicial Ethics Opinion Favors ABA over Federalist Society and ACS

I’m pleased to make public a draft advisory opinion, titled “Judges’ Involvement With the American Constitution Society, the Federalist Society, and the American Bar Association,” that the Committee on Codes of Conduct of the Judicial Conference of the United States has circulated for review and comment to all federal judges.

The draft opinion soundly concludes that “[p]articipation in events hosted by” the American Constitution Society, the Federalist Society, and the American Bar Association “through speaking engagements, panel discussions, attendance, and the like … is broadly permissible under the Code of Conduct for federal judges.” It thus emphatically repudiates the misreading of a February 2019 ethics opinion that former magistrate judge James P. Donohue offered in a Slate essay in November. (I explained in these two posts how Donohue’s claim was clearly wrong.)

On the other hand, the draft opinion curiously advises that federal judges shouldn’t be members of ACS or the Federalist Society but that it’s okay for them to be members of the ABA. I’ll leave it to someone more familiar than I am with ACS to explore what the draft opinion has to say about it. I’ll instead examine the very dubious distinctions that the draft opinion draws between the Federalist Society and the ABA.

The draft opinion purports to present the Federalist Society’s description of itself. (See p. 6.) It quotes, for example, statements in which the Federalist Society describes itself as “a group of conservatives and libertarians dedicated to reforming the current legal order”; as promoting appreciation for the “role of separation of powers; federalism; limited, constitutional government; and the rule of law in protecting individual freedom and traditional values”; and as opposing “a form of orthodox liberal ideology” that dominates law schools and the legal profession. Statements like these, the draft opinion asserts, establish that the Federalist Society is an organization “advocating … conservative causes.” (P. 7 (emphasis added).)

But the draft opinion omits some important things from the Federalist Society’s self-description: It omits that the Federalist Society’s “main purpose is to sponsor fair, serious, and open debate about the need to enhance individual freedom and the role of the courts in saying what the law is rather than what they wish it to be.” (Emphasis added.) More importantly, it omits that the Federalist Society does “not lobby for legislation, take policy positions, or sponsor or endorse nominees and candidates for public service.” (Emphasis added.) It thus fails to address the puzzle how an organization that does not do any of these things—and that also does not litigate or file amicus briefs—can be said to be “advocating … conservative causes.”

By contrast, the draft opinion finds comfort in the ABA’s stated mission “[t]o serve equally our members, our profession and the public by defending liberty and delivering justice as the national representative of the legal profession.” The draft opinion acknowledges that the ABA “has, at times, advocated for particular constituencies, causes, or agendas.” (Emphasis added.) That’s an astounding understatement.

As I illustrated in this post, the ABA has a D.C. “governmental affairs” office that has the express purpose of lobbying Congress and the executive branch on “diverse issues of importance to the legal profession”—issues that (as my examples in that post show) often have nothing to do with the interests of the legal profession itself. The ABA has a Grassroots Action Center through which it tries to mobilize the public “to send messages directly to your elected officials”—e.g., “Tell Congress the Border Needs Help.” The ABA frequently files amicus briefs, including in hot-button cases, in the Supreme Court and in the federal courts of appeals. And it adopts resolutions on a broad range of public-policy topics. On all these matters, the ABA routinely endorses liberal positions.

In short, the ABA has a consistent and longstanding practice of advocating liberal causes. If a line is to be drawn between the Federalist Society and the ABA, it is the ABA that should be deemed to be on the wrong side of the line.

A few other comments:

1. The draft opinion posits that it is “significant” that the ABA maintains “a separate membership section for judges, now called the Judicial Division,” as that division in membership lessens the risk that a judge could be seen as an advocate of the ABA’s policy positions. (P. 10.) Does that mean that the Codes of Conduct Committee would be fine if the Federalist Society set up its own judicial division and federal judges were members of it? If not, why not?

2. The draft opinion states that it is advising that “membership in the ABA’s Judicial Division is not necessarily inconsistent with the Code.” (P. 11.) That statement might be misunderstood as stating that the draft opinion is leaving open whether federal judges may be members of the ABA’s Judicial Division. But as the fuller context makes clear, the draft opinion is saying that membership is okay but that it might lead to the “possibility of disqualification” in some cases.

3. The draft opinion states that its reasoning would also mean that law clerks and staff attorneys can’t be members of ACS or the Federalist Society. (P. 8.) I don’t understand this conclusion, as I would think that a “reasonable and informed public” would understand that judges are making their own decisions and are not delegating them to law clerks and staff attorneys.

4. The draft opinion emphasizes that its conclusions “are neither retrospective nor retroactive” and that it should not “be construed to impugn the ethics or the integrity of judges who have held or currently hold membership in either” ACS or the Federalist Society. (The Committee advised in 2007 that judges may be members of ACS—on reasoning that would also extend to the Federalist Society—and that it could not “distinguish between membership in the ABA and membership in ACS.”)

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