Bench Memos

Law & the Courts

The Judicial Campaign to Silence the Federalist Society (Part 1)

(Freerangestock)

It has been reported here by Ed Whelan and by the editorial page of the Wall Street Journal that the Committee on Codes of Conduct of the U.S. Judicial Conference, a body of 15 judges that issues advisory opinions containing ethical guidelines to members of the federal bench, is seriously considering a ban on judges being members of the Federalist Society. To be more specific, its draft advisory opinion is entitled “Judges’ Involvement With the American Constitution Society, the Federalist Society, and the American Bar Association,” and it would bar judges, law clerks, and staff attorneys from serving “as a member or in a leadership role” of the ACS or the Federalist Society, but not of the ABA.

Here is the Committee’s rationale:

Official affiliation with either organization could convey to a reasonable person that the affiliated judge endorses the views and particular ideological perspectives advocated by the organization; call into question the affiliated judge’s impartiality on subjects as to which the organization has taken a position; and generally frustrate the public’s trust in the integrity and independence of the judiciary.

This reasoning is based on a false premise. The Federalist Society does not take positions or advocate on particular issues, including legislation, nominations, and executive action. Neither does it stage rallies or similar efforts to advance any such positions, and it does not litigate before any state or federal tribunals. Its members span a wide range of views that tend to be right of center, but its programs are educational and typically include panels of experts from both the left and the right.

It is possible such details escaped the attention of the Committee, which includes among its members John McConnell, a district judge in Rhode Island who has a long relationship with Senator Sheldon Whitehouse and who donated to the senator’s campaign before assuming the bench. Whitehouse, for his part, has been an outspoken scold of the Federalist Society who regularly employs standards he presumably would not want applied to himself or his allies to suggest that those he disagrees with are compromised by money. Listening to his demagoguery, it is easy to come away with a distorted picture.

Placing the Federalist Society in the same category as the ACS might appear judicious, and given the left’s dominance of legal academia and bar associations, a blow to the ACS would be a small price for liberals to pay for a blow to the Federalist Society. But even the comparison of the Federalist Society to the ACS is inapt.

The ACS regularly takes positions on issues through a host of channels including press releases, social media, and issue briefs. When Brett Kavanaugh was nominated to the Supreme Court, the organization created a vacancy toolkit encouraging people to take action in opposition to the nominee. The ACS later released a letter signed by over 1,600 attorneys and law professors calling for the then acting attorney general, Matthew Whitaker, to recuse himself or be removed from overseeing the Mueller investigation, and urging Congress and future attorneys general to protect the Mueller probe. All of these activities distinguish it from the Federalist Society.

Even less defensible is the inconsistency it would require to put the Federalist Society in one category and an enormous swath of society — not just the ABA, but other bar associations, schools, religious organizations, and any number of civic groups — in the other. In fact, one could argue that this very Codes of Conduct Committee is far more political than the Federalist Society since it is now undertaking a nakedly political campaign to silence conservatives.  I’ll have more on the collateral damage threatened by the Codes of Conduct Committee in subsequent posts, but I think it’s fair to say that the Committee’s treatment of the ABA makes it clear it will apply arbitrary and incoherent exceptions for its favored (i.e., liberal) organizations.

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