Bench Memos

Law & the Courts

The Hit Job on the Federalist Society Looks Even Worse after the Walker Hearing

Sen. Sheldon Whitehouse during a Senate Judiciary Committee hearing, Washington, D.C., September 27, 2018 (Tom Williams/Pool via Reuters)

Back in January, I wrote about the campaign by the draft advisory opinion of the Committee on Codes of Conduct of the U.S. Judicial Conference to undo longstanding practice by barring judges from belonging to the Federalist Society. As I explained (here, here, here, here, here & here), it was a thinly veiled ideological hit job that applied one standard to the Federalist Society and another to the American Bar Association and any number of other organizations. If adopted, the opinion would wreak havoc on judges’ ability to connect to the legal profession and to faith and community organizations that (unlike the Society) take positions on issues.

In response to the proposed membership ban, a March 18 letter signed by 210 federal judges was sent to the Codes of Conduct Committee to “strongly urge” its members “to withdraw the exposure draft.” The letter explains that Canon 4 of the Judicial Code of Conduct “allows judges to serve as members — and even officers — of ‘nonprofit organization[s] devoted to the law, the legal system, or the administration of justice.’” After all, judges should “not become isolated from” the society around them.

The draft advisory opinion’s arguments for departing “from the text and its long-held understanding of the Code” all “rest on a flawed understanding of the Federalist Society and of the Code itself,” the judges’ letter asserts. Contrary to the notion that it advocates for particular policies, “the Federalist Society has never, in its several decades of existence, lobbied a policymaking body, filed an amicus brief, or otherwise advocated any policy change.” The judges contrasted that with the ABA, affinity bar associations, law schools, and even churches, all of which engage in such advocacy.

The judges added the following objections to the committee’s process:

[R]eports suggest that no member of the Committee was permitted to dissent, despite some members’ strong disagreement with the exposure draft. Other reports suggest that at least one member of the Committee was barred from voting on the draft. And the Committee’s reversal of its prior, settled interpretation—without any relevant change in the Code—raises further concerns.

That sounds a lot like railroading.

To make matters worse, the judges’ letter seems to have been used to try to run a judicial nomination off the rails. It was not public for a month and a half after it was submitted — that is, not until someone leaked it to the New York Times for a story that ran Sunday, just three days before today’s D.C. Circuit nomination hearing for Justin Walker. The nominee is a sitting judge who is among the letter’s signatories.

Lest there be any doubt that the leak was calculated to target Walker, the Times made it clear in its headline — “Trump Nominee Is Among Judges Opposed to Banning Membership in Conservative Group” — that the main story was not the letter itself, but the identity of a single signatory who is up for a promotion. Never mind the issue presented by the draft advisory opinion in the first place, or the fact that those who signed the judges’ letter include appointees of every president since Gerald Ford and span the ideological spectrum.

Not surprisingly, the one senator quoted in the article was the upper chamber’s chief conspiracy theorist on all things Federalist Society: Sheldon Whitehouse. As if on cue, it was Whitehouse who devoted his time during Walker’s hearing today to grilling him about the letter — not its content, but who wrote it.

Walker answered. Whitehouse moved on. He looked foolish, particularly as the senator who had secured his friend John McConnell’s appointment to the bench in 2011. That was after McConnell and his wife had donated almost $700,000 to Democratic candidates, including Whitehouse. Judge McConnell now sits on the Codes of Conduct Committee, a contributor to the draft advisory opinion that aims to silence the Federalist Society, Whitehouse’s favorite target.

Perhaps if the senator were less practiced in transactional politics, he wouldn’t be so paranoid.

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