Bench Memos

Law & the Courts

Federal Judges and the Federalist Society—Part 2

The American Bar Association clearly fares much worse overall on the factors set forth in Advisory Opinion 116 than the Federalist Society does. (See Part 1 post.) Among other things:

Factor 3: The ABA engages in lobbying members of Congress. Indeed, it has a Governmental Affairs Office in D.C. that has the express purpose of “serv[ing] as the focal point for the [ABA’s] advocacy efforts before Congress, the Executive Branch and other governmental entities on diverse issues of importance to the legal profession.”

Those “diverse issues of importance to the legal profession” need have nothing to do with the interests of the legal profession itself. As I am writing this post, the items on the Governmental Affairs Office’s webpage concern commenting on “proposed special immigrant juvenile classification amendments,” “urging action on two bills to protect tribal communities from government shutdowns,” and “thanking House members for introducing the Stamp Out Elder Abuse Act.”

The ABA also rates every federal judicial nomination, sends its ratings to the Senate Judiciary Committee, and sends representatives to testify in support of those ratings.

Through its Grassroots Action Center, the ABA also tries to mobilize the public “to send messages directly to your elected officials.” E.g., “Tell Congress the Border Needs Help.”

Factor 5: The ABA frequently files amicus briefs, including in hot-button cases, in the Supreme Court and in the federal courts of appeals. (It even has a Standing Committee on Amicus Curiae Briefs.) To take just two of countless examples: the ABA’s amicus brief in the Title VII cases pending in the Supreme Court urges the Court to adopt the claim of the employees that Title VII forbids discrimination on the basis of sexual orientation or transgender status, and its amicus brief in Fisher v. University of Texas defended the constitutionality of racial preferences in college admissions.

Factor 7: The ABA “advocates for specific outcomes on legal [and] political issues.” That is clear from its amicus briefs and from its lobbying. It’s also clear from the many resolutions that the ABA routinely adopts.

Here are excerpts from the ABA Journal’s selective preview of resolutions that were to be considered at its summer meeting on “a range of significant issues including criminal justice, advance care planning, pay equity, intellectual property, sexual assault and immigration”:

Resolution 101 urges the federal government to immediately implement the First Step Act—which was adopted in 2018 to shorten some federal sentences and give federal judges more discretion to bypass mandatory minimum sentences for some offenders—by providing all necessary funding….

The Criminal Justice Section is also sponsoring Resolution 104, which calls on Congress to enact legislation that exempts the production, distribution, possession and use of marijuana from the Controlled Substances Act in order to resolve conflicts in state and federal law.

The Standing Committee on Gun Violence, along with co-sponsors the Criminal Justice Section, the Civil Rights and Social Justice Section, the Commission on Domestic and Sexual Violence and the Judicial Division, is asking jurisdictions in Resolution 105 to limit the possession of firearms in courthouses and judicial centers to courtroom security and law enforcement officers….

Resolution 115B is sponsored by the Civil Rights and Social Justice Section and urges Congress, states and territories to pass legislation that provides stronger remedies and protections against pay discrimination on the basis of sex, race and ethnicity.


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