Bench Memos

Law & the Courts

Re: Draft Judicial Ethics Opinion Favors ABA over Federalist Society and ACS

I have finally obtained the full membership of the Committee on Codes of Conduct, the judicial body that has circulated a draft opinion that bizarrely advises that it’s okay for judges to be members of the American Bar Association but not okay for them to be members of the Federalist Society (or the American Constitution Society). As I explained in this post, unlike the Federalist Society, the ABA has a longstanding practice of advocating political causes. Thus, if a line is to be drawn between the Federalist Society and the ABA, it is the ABA that should be deemed to be on the wrong side of the line.

The Committee on Codes of Conduct has 15 members, 13 of whom were appointed to their judicial positions by presidents. (The magistrate judge and the bankruptcy judge were appointed by other judges.) Of these 13 presidential appointees, eight were appointed by Democratic presidents and five by Republican presidents.

As I’ve pointed out, the Democratic appointees include Fourth Circuit judge Albert Diaz, who just happens to be not only a member of the ABA’s Judicial Division but the chairman of that body’s Appellate Judge Conference. Another of the Democratic appointees is John J. McConnell Jr. (of the District of Rhode Island), a former plaintiffs’ lawyer who, before taking the bench, donated almost $700,000 to Democratic candidates. Senator Sheldon Whitehouse, a vocal critic of the Federalist Society, strongly supported McConnell’s nomination and, despite the mediocre (minority “not qualified”) he received from the ABA’s judicial-evaluations committee, hailed him as a “brilliant legal mind.” So the composition of the Committee might go a long way to explain why the draft opinion favors the ABA over the Federalist Society.

By the way, it strikes me as very strange that the Administrative Office of the U.S. Courts does not publish on its website the composition of its various judicial committees. I can’t see a good reason for hiding that information from the public.

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