Bench Memos

Law & the Courts

Federal Judges and the Federalist Society—Part 1

In a Slate essay two weeks ago, former federal magistrate James P. Donohue claimed that a February 2019 ethics opinion issued by the Committee on Codes of Conduct of the Judicial Conference of the United States has the “effect” of barring federal judges from taking part in Federalist Society events.

If Donohue were correct (spoiler: he’s not), then the eight federal judges—including liberal appellate luminaries David Barron, Pamela Harris, Theodore McKee, and Sri Srinivasan—who took part in the American Constitution Society’s national convention in June have shown that they “just don’t care” that they violated the ethics directive issued months earlier. Ditto for Ninth Circuit chief judge Sidney Thomas, who delivered the keynote address at the American Bar Association’s annual meeting in August, his colleague Margaret McKeown, who took part in an event there, and the many federal judges who took part in the activities of the ABA’s Appellate Judges Conference and its National Conference of Federal Trial Judges.

Fortunately for all, Donohue’s claim is without merit.

Let’s begin with the opinion Donohue invokes, Advisory Opinion No. 116 (which I have extracted from this compilation of published advisory opinions). This Advisory Opinion addresses when it is proper for federal judges to participate in educational seminars or conferences. It emphasizes that Canon 4 of the Code of Conduct for United States Judges has “particular relevance” to this question. Canon 4 states generally:

A judge may engage in extrajudicial activities, including law-related pursuits and civic, charitable, educational, religious, social, financial, fiduciary, and governmental activities, and may speak, write, lecture, and teach on both law-related and nonlegal subjects. However, a judge should not participate in extrajudicial activities that detract from the dignity of the judge’s office, interfere with the performance of the judge’s official duties, reflect adversely on the judge’s impartiality, lead to frequent disqualification, or violate the limitations set forth below.

The Commentary to Canon 4 affirmatively encourages federal judges to engage in extrajudicial activities that don’t compromise their impartiality:

Complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the society in which the judge lives. As a judicial officer and a person specially learned in the law, a judge is in a unique position to contribute to the law, the legal system, and the administration of justice, including revising substantive and procedural law and improving criminal and juvenile justice. To the extent that the judge’s time permits and impartiality is not compromised, the judge is encouraged to do so, either independently or through a bar association, judicial conference, or other organization dedicated to the law.

You wouldn’t know it from Donohue’s article, but Advisory Opinion No. 116 sets forth a non-exhaustive list of numerous factors that a judge should consider “on a case-by-case basis” in deciding whether it is proper to participate in an educational seminar or conference:

The factors that relate to the sponsoring organization itself include: (1) its identity; (2) its stated mission, including any political or ideological point of view; (3) whether it engages in education, lobbying, or outreach to members of Congress, key congressional staffers, or policymakers in the executive branch; (4) whether it conducts outreach or educational programs for the media, academia, or policy communities; (5) whether it is actively involved in litigation in the state or federal courts, including the filing of amicus briefs, participating in moot courts or boards to prepare candidates or advocates; (6) whether it holds rallies, meetings, or appearances in conjunction with hearings or trials with a view towards influencing public opinion; (7) whether it advocates for specific outcomes on legal or political issues; (8) its sources of funding; and (9) whether it is generally viewed by the public as having adopted a consistent political or ideological point of view equivalent to the type of partisanship often found in political organizations.

Donohue’s major claim is that the Federalist Society is a “political organization.” But the commentary to Canon 5 of the Code of Conduct defines a “political organization” as “a political party, a group affiliated with a political party or candidate for public office, or an entity whose principal purpose is to advocate for or against political candidates or parties in connection with elections for public office.” The Federalist Society is clearly not a “political organization” under that (or any other sensible) definition.

Donohue also errs in mistaking the list of factors as a list of automatic disqualifiers. Even worse, he engages in no serious analysis of how those factors apply to the Federalist Society.

Let’s run through the factors:

Factors 1, 2: The Federalist Society identifies “as a group of conservatives and libertarians interested in the current state of the legal order.” It “is founded on the principles 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.” 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.”

Factors 3, 7, 9: The Federalist Society does “not lobby for legislation, take policy positions, or sponsor or endorse nominees and candidates for public service.”

Factor 4: I admit that I’m not sure that I understand this factor. In any event: “The several hundred events sponsored each year by the Federalist Society are publicly advertised and are open to the press and the general public.” Many or most of those events will be of interest to “media, academia, or policy communities.”

Factor 5: The Federalist Society does not litigate, does not file amicus briefs, and does not organize or participate in moot courts.

Factor 6: The Federalist Society does not hold “rallies, meetings, or appearances in conjunction with hearings or trials with a view towards influencing public opinion.”

Factor 8: The Federalist Society receives 90% of its funding from individuals and foundations, with about 10% of its funding coming from corporations. It “does not take any money from any political party or group affiliated with a political party.”

It’s beyond me how anyone could conclude, as Donohue does, that these factors support (much less compel) the conclusion that the Federalist Society “is the epitome of a now-prohibited organization.” On the contrary, consideration of these factors ought to cut strongly in favor of the conclusion that it is proper for federal judges to participate in Federalist Society events.

If there is any respect in which the American Constitution Society (which presents itself as a progressive version of the Federalist Society) fares better than the Federalist Society on these factors, I’m unaware of it. And as I will show in my Part 2 post, the American Bar Association clearly fares worse.

(Disclosure: I have taken part for years in Federalist Society events and am friends with many Federalist Society leaders, including Leonard Leo, who is also a member of the board of directors of the think tank I run.)

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