Bench Memos

Law & the Courts

More on Federal Judicial Center Bias

My post on the Federal Judicial Center’s one-sided panels on ideological issues elicited this email from a concerned FJC employee who fears retaliation and would therefore like to remain anonymous:

I wanted to bring to your attention a more concerning development that I believe shares a common set of themes with your article.

In early 2017, shortly after President Trump made a series of public criticisms of the judiciary, the FJC began drafting and implementing a series of sweeping restrictions on employee’s rights to speak about political issues, participate in partisan events, or donate to political candidates. It did so in tandem with the Administrative Office of the Courts (AO). Prior to that time, the FJC had always employed a more permissive policy than the AO on the ground that this was necessary to preserve researchers’ ability to speak freely on a range of topics. The rationale behind the abrupt change in policy was very unclear, though the primary rationale was supposedly “uniformity” across the judicial branch. It seemed clear to most employees that the actual intent was to muzzle employees at a time when the courts were a sensitive political topic.

Both the AO and FJC political speech policies went into effect in early 2018. In the Spring of 2018, District Judge Christopher Cooper issued a preliminary injunction against most of the AO’s policies on the grounds that these policies violated the First Amendment. Judge Cooper is an Obama appointee, but his decision rested heavily on recent Roberts Court opinions that cut across political lines in strictly scrutinizing restrictions on political activities. I have yet to hear anyone point out a flaw in Judge Cooper’s reasoning.

When Judge Cooper issued his initial ruling, the FJC’s hierarchy informed employees that the agency would ignore the ruling because it was not a formal party to the suit. In April of 2020, Judge Cooper issued a final ruling in the AO case. The ruling is a comprehensive evisceration of all the rationales the government’s lawyers could muster in defense of these policies. Nevertheless, FJC Director John Cooke issued an off the cuff single-sentence statement that the center would not be following this ruling even though he acknowledged that the AO’s policy was “substantially similar” to the FJC’s policy (in fact, most of the rules are identical and a few differ only in minor semantics). The FJC has never given any reasoned explanation for why the rationale in Judge Cooper’s rulings is inapplicable to the FJC’s rulings.  This omission is particularly galling since many of the FJC’s staff are legal experts who advised the agency’s hierarchy that these rules were patently unconstitutional before they were adopted.

Many staff members at the FJC are troubled by the agency’s stance, particularly in light of the fact that “uniformity” had been the stated purpose of the rules. Several staff members have complained to the ACLU (which successfully argued the AO suit) about the FJC’s apparently lawless conduct. Ultimately all the staff members concluded that the risk of retaliation for launching a suit was too high. (The FJC is a small agency and has poor protections against retaliation of this kind; it is not subject to most federal workers’ rights legislation. Also, one of the AO employees who filed suit was laid off during the litigation, which does not fill one with optimism that a lawsuit would be taken with good grace). I am writing anonymously because I also fear retaliation.

I hope you will expose this troubling lack of respect for the constitution in the federal judiciary.