Bench Memos

Law & the Courts

The Judicial Campaign to Silence the Federalist Society (Part 3)

A gavel sits on the chairman’s dais in the U.S. House Judiciary Committee hearing room on Capitol Hill in Washington, D.C., June 14, 2019 (Jonathan Ernst/Reuters)

As it took aim at the Federalist Society while straining to exclude the ABA in its draft advisory opinion, the Committee on Codes of Conduct proposed a standard that would deal a serious blow to judges’ involvement with the legal profession and the institutions that educate future lawyers.

Take affinity bar associations, each of which tends to have its own distinctive mission statement while having in common the cultivation of the legal education and talent of their members. These organizations often provide mentoring, leadership, and business networking opportunities. In fact, that description fits the Federalist Society, so there is no reason any exclusion of judicial membership and leadership would not automatically apply to all affinity bar associations.

In fact, most such organizations should have an even harder time escaping the reach of the Committee on Codes of Conduct’s contemplated prohibition, because unlike the Federalist Society, they do take positions on specific issues. Take as just a few examples the position platforms of the National Asian Pacific American Bar Association (NAPABA), the National Native American Bar Association (NNABA), the Hispanic National Bar Association (HNBA), the National LGBT Bar Association, and the Federal Bar Association. (Judge Albert Diaz, a member of the Codes of Conduct Committee, belongs to the HNBA.) The American Immigration Lawyers Association (AILA) lists on its website a host of bills in Congress with indications of its support or opposition. The American Association for Justice (AAJ)  (formerly the Association of Trial Lawyers of America) has one of the nation’s most powerful lobbying operations. Even the National Association of Women Judges regularly issues resolutions taking positions on issues. Imagine judges being prohibited from belonging to that group!

As is the case with the ABA, many of these organizations, including NAPABA, NNABA, HNBA, the National LGBT Bar Association, AILA, AAJ, and the National Association of Women Lawyers, take their advocacy to court on a regular basis and are open about their practice of filing amicus briefs to advance their agenda. In ideologically charged cases, the overwhelming majority of amicus briefs submitted by such groups take liberal positions. In Trump v. Hawaii, the travel ban case decided by the Supreme Court in 2018, a single amicus brief opposing the policy was filed by NAPABA as a representative of over 75 affiliated bar associations.

Speaking of entities that regularly advocate in court, let us not forget the institutions that educate attorneys in the first place: universities and law schools. Back in November, when I examined a baseless call for recusal that a liberal activist group had selectively aimed at two conservative Supreme Court justices, I noted a number of examples of other justices who had spoken at institutions of higher learning while those same institutions had cases or briefs before the Court. These included two cases in which universities were litigants: Dept. of Homeland Security v. Regents of the Univ. of California, the challenge to the Trump administration’s wind down of the DACA policy; and Regents of the University of Minnesota v. LSI Corp, a sovereign immunity case in which a cert petition was then pending.

In the same piece, I noted speaking engagements by justices at Yale, Georgetown, and the University of Colorado, all of which had signed amicus briefs in the DACA case. But that was the tip of the iceberg involving institutions of higher learning engaging in advocacy through amicus briefs. In the DACA case alone, they were three of 184 schools that signed amicus briefs siding with the challenge to administration policy. As well as in major affirmative action cases, the number of universities that submit amicus briefs tends to surpass even the number of bar associations that do so. And that is not to mention the schools that go beyond the courts to communicate to elected officials their positions on those and any number of other issues.

To reiterate, the Federalist Society engages in none of the above activities. While the Committee’s draft advisory opinion targets judicial membership and leadership positions in the Federalist Society without prohibiting speaking engagements, it still raises a tremendous problem in the context of law schools. Many judges teach, which makes them members of faculties of the very schools that routinely engage in issue advocacy. Wouldn’t consistency require faculty membership to be included in a membership ban? And what about other close affiliations with educational institutions, such as a Supreme Court justice lending her name and participation to an ongoing Ruth Bader Ginsburg Lecture Series at Georgetown Law School?

Would the Committee spare these institutions? Recall the draft opinion’s unpersuasive attempt to treat the ABA more favorably because it has a specific division for member judges. That is plainly unhelpful to affinity bar associations that do not have such divisions. When questions arise about those overwhelmingly liberal organizations and universities, will the Committee dig its credibility into an even deeper hole with additional excuses for giving them more favorable treatment than the Federalist Society? Or will it expel judges from both the schools that train lawyers and the organizations that later help them professionally, unless they happen to be named the ABA?


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