Bench Memos

Law & the Courts

Re: The Hit Job on the Federalist Society and Judge Walker

I have some comments to add to Carrie Severino’s excellent post about the concocted controversy over Judge (and D.C. Circuit nominee) Justin Walker’s adding his name to a letter from 200+ judges in opposition to the Code of Conduct Committee’s proposed opinion that federal judges may not be members of the Federalist Society but may be members of the American Bar Association. Specifically, I’d like to highlight the routine bias of the New York Times news staff, both in making this a story at all and in presenting it in such a lopsided manner.

The subheadline of the NYT article contends that Walker “joined a bevy of judges, many appointees of the president, in railing against” the proposed opinion. Its first sentence asserts that Walker “has stepped into a fierce ideological debate,” and its fourth sentence notes that the Code of Conduct Committee is “composed of judges appointed by both Democratic and Republican presidents.”

Only in the 17th paragraph does the reader learn that the Committee “solicited” feedback from judges, and only in the 24th (in the last fifth or so of the article) that the signatories to the letter included “a handful [of judges who] were named by” Democratic presidents.

I don’t think that any fairminded person would describe the tone of the judges’ letter as “railing.” Here is its opening paragraph:

We write to express our deep concern with the exposure draft of Advisory Opinion No. 117, recently issued by the Judicial Conference’s Code of Conduct Committee. We believe the exposure draft conflicts with the Code of Conduct, misunderstands the Federalist Society, applies a double standard, and leads to troubling consequences. The circumstances surrounding the issuance of the exposure draft also raise serious questions about the Committee’s internal procedures and transparency. We strongly urge the Committee to withdraw the exposure draft.

That same tone pervades its eight pages of text.

As to “a fierce ideological debate”: Who, pray tell, is taking the other side in this debate? Has there been any serious defense of the Committee’s proposed opinion? Are there lots of letters from judges in support of it, and do they have anything meaningful to say? If so, perhaps Judge John McConnell, the Committee member and crony of Sheldon Whitehouse whom Carrie reasonably suspects of leaking the letter from 200+ judges in order to try to damage Walker’s nomination, should leak those letters, too.

By “stepped into,” the reporters also obscure what they only much later reveal: that Walker was simply responding to the Committee’s solicitation for comment.

The “handful”—eleven, by my count—of signatories to the letter who are Democratic appointees include federal appellate judges José Cabranes, Julie Carnes, Frank Hull, Cheryl Krause, Stanley Marcus, and Richard Tallman. If Walker’s critics want to pretend that there was anything improper about his signing the letter, will they criticize these judges as well?

(I’ve briefly addressed in point 3 here the silly NYT hit piece on Walker the very next day, hyping D.C. Circuit chief judge Sri Srinivasan’s purely procedural punt of Demand Justice’s smear of Judge Thomas Griffith.)


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