Bench Memos

Law & the Courts

The Judicial Campaign to Silence the Federalist Society (Part 2)

(Freerangestock)

The Committee on Codes of Conduct’s draft advisory opinion’s most glaring inconsistency is barring federal judges from being members or taking leadership roles of the Federalist Society, but not of the ABA. My previous post noted the Committee’s mischaracterization of the Federalist Society’s advocacy, which it simply does not do on particular issues before any branch of government.

When it turns to the ABA, the draft opinion admits that the organization “has, at times, advocated for particular constituencies, causes, or agendas, which has raised questions of partiality or the appearance of partiality.”

At times? What a soft-pedaling statement. The ABA has an ongoing, voluminous list of legislative issues on which it takes positions. The current version of the list of “Legislative Policies of the American Bar Association” runs 129 pages. It advances specific proposals for legislation spanning such varied subjects as admiralty law, criminal procedure, energy, medical malpractice, public contracts, and tax. The ABA takes positions—all left of center—on such politically charged issues as abortion, the death penalty, immigration, and health care. To advance its agenda, the organization built a formal lobbying operation on which it spends hundreds of thousands of dollars every year.

The ABA does not limit its advocacy to trying to influence legislation. It extends its reach to courts, frequently filing amicus briefs when the organization wishes to advance its agenda. This includes high profile cases involving abortion, sexual orientation and transgender status, and the Sixth Amendment—just to scratch the surface with examples from cases currently pending before the Supreme Court.

And none of this is to overlook the ABA’s practice of rating judicial nominees, which has long been tainted by the group’s ideological bias, as I have examined before.

The Federalist Society does not undertake any of these ABA practices. To get a sense of how much the Codes of Conduct Committee’s draft advisory opinion would change established ethical guidance, consider its own acknowledgement at the start of its analysis of the ABA: “As with other law-related activities, a judge’s participation in bar associations is generally encouraged, and the Commentary to Canon 4 notes that participation in bar associations may contribute to the improvement of the law.” While the Federalist Society does not have the term “bar association” in its name, isn’t it clear that its activities are similarly about contributing to the improvement of the law? Indeed, as the Codes of Conduct Committee recognizes, while previous ethical guidance has approved judges’ membership in the ABA, it has reached the same conclusion for the Federalist Society.

The draft opinion attempts two feats of spin to spare the ABA the fate it would deal the Federalist Society. First, it finds it “significant” that the ABA has “a separate membership section for judges, now called the Judicial Division,” the bylaws of which provide that “judicial members of the Division will not be deemed to endorse positions and policies adopted by the ABA that conflict with a judge’s obligation to comply with the ABA Model Code of Judicial Conduct or the Governing Code of Judicial Conduct in the judge’s jurisdiction.”

This, according to the draft opinion, “lessens the risk that membership in the Judicial Division ‘might reasonably be seen as [a judge’s] indirect advocacy of’ the ABA’s policy positions.” (Even by this explanation, the risk of such an appearance has not quite disappeared, only lessened.) However correct that may be, it does not help distinguish the Federalist Society from the ABA, because the Society has no position-endorsing function from which a separate division could shield its members. Of course, if the Codes of Conduct Committee were to go ahead with its opinion, it is easy to imagine the Federalist Society naming its own Judicial Division for its judicial members, in which case it would become even more obvious the Committee was throwing out a red herring.

The draft opinion’s second spin appears in the following two sentences:

In the current politically divisive climate, the Committee agrees that positions taken by the ABA’s House of Delegates could reasonably be viewed to favor liberal or progressive causes.

Still, the ABA’s mission, unlike that of the ACS or the Federalist Society, is concerned with the improvement of the law in general and advocacy for the legal profession as a whole.

So the Federalist Society is not “concerned with the improvement of the law in general,” but the ABA is? And did the writer of this opinion seriously think anyone would be persuaded the ABA engages in “advocacy for the legal profession as a whole” one sentence after admitting its positions represent only one segment of the profession?

The conclusion of the draft opinion states that its proposed change “of the Committee’s past guidance” is “dictated by changed circumstances and evolving public perception.” From its preceding discussion, it is easy to infer what the true “changed circumstances” are: The Federalist Society has gained stature in the legal profession while the ABA has lost it, because the Society does a better job advancing an appreciation of “what the law is” (to quote both its mission statement and Chief Justice John Marshall) without confusing that purpose with issue advocacy that represents a shrinking component of the population. The draft advisory opinion’s attempt to distinguish its treatment of the two organizations is based not on logic, but on raw politics.

Next we will look at what the draft advisory opinion could mean for other entities dedicated to the legal profession, affinity bar associations and law schools.

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