Bench Memos

Law & the Courts

Senators Slam Draft Ethics Opinion on Judicial Membership in ABA vs. Federalist Society


I’ve strongly criticized the poorly reasoned draft advisory opinion in which the Committee on Codes of Conduct of the Judicial Conference of the United States concludes that federal judges may not be members of the Federalist Society but may be members of the American Bar Association. As I’ve explained, I take no position on whether the judicial ethics rules should be interpreted to bar judges from being members of the Federalist Society or of the ABA. My only position is that if a line is to be drawn between the two organizations, it is the ABA, not the Federalist Society, that should be on the forbidden side of the line.

I’m pleased to highlight an excellent letter that 29 Republican senators—including Senate majority leader Mitch McConnell and nine of the eleven Republican members of the Judiciary Committee—have sent to the chairman of the Committee on Codes of Conduct. Some excerpts (citations omitted):

[The Committee’s] conclusions are based on an extraordinarily distorted understanding of both organizations’ missions and advocacy activities….

The Federalist Society “is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.” These principles do not flow from any ideological, political, or factional commitment, but rather from the basic underpinnings of the Constitution and the rule of law. In fact, if any federal judges do not adhere to these principles, they are in violation of their oaths of office—plain and simple.

The Federalist Society pursues these principles by “sponsor[ing] fair, serious, and open debate,” which is its “main purpose.” Forums hosted by the Federalist Society frequently feature voices from across the ideological spectrum…. Most importantly, the Federalist Society emphatically does “not lobby for legislation, take policy positions, or sponsor or endorse nominees and candidates for public service. The organization does not take positions on legislation and does not submit amicus briefs….

The Federalist Society’s neutrality and openness stands in stark contrast to the zealous ideological advocacy of the American Bar Association…. There is no “reasonabl[e]” way to view the ABA’s advocacy as anything other than “liberal or progressive” when it supports denying individuals their constitutional right to keep and bear arms, forcing Christian organizations on campuses to accept members that reject their faith, subjugating states to the judgments of the World Court to overturn capital sentences, recognizing same-sex marriage through judicial fiat instead of legislative debate, banning state and local law enforcement from assisting in enforcing federal immigration law, and removing restrictions on abortion…. [T]he ABA’s leftism has come to infect the organization’s purportedly “neutral” activities, from using its monopoly on law school accreditation to mandate hiring and admissions quotas to trying to muzzle lawyers with a speech code under the guise of model ethics rules.

There is perhaps no better example of the subjugation of the ABA’s ostensibly neutral functions to this left-wing agenda than its treatment of judicial nominees. Study after study over the past two decades has documented what one expert described as “systematic bias by the ABA in its ratings of Republican nominees.” Sadly, the ideological infection of the ABA’s rating process is not limited to just bias in ratings, but has also escalated into outright character assassination attempts against some nominees, especially those with socially conservative track records.

The ABA’s [recent] treatment of Judge Grasz, Judge VanDyke, and other of your colleagues has been disingenuous, unfair, and shameful. It can hardly be dismissed as merely a minor feature of the organization. Rather, this record fatally undermines any notion that the ABA is capable of placing the core principles that undergird our legal system ahead of zealous advocacy for its left-wing agenda.

It is disappointing that sitting federal judges would want to lend their credibility to an organization that launches such vicious, spurious attacks on their colleagues. Perhaps most importantly, it is deeply unfair to organizations that are actually “devoted to the law, the legal system, or the administration of justice” such as the Federalist Society to deign to label the ABA to be such an organization when it so evidently does not meet such a standard.

Senator Sasse’s office has also provided me this statement from him:

It’s wrong to target the Federalist Society. We’re talking about a debating society of law students and lawyers with diverse opinions who take the Constitution and the rule of law seriously — this is stuff every American ought to be able to agree on. Baseless, behind-the-scenes attacks against the Federalist Society and its members are the product of liberal smear campaign that will erode confidence in an independent and fair Judiciary. The Judicial Conference should reject this draft opinion.

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