Bench Memos

Law & the Courts

Whitehouse Letter Against Federalist Society Is an Incoherent Mess

Last week, two New York Times reporters wrote a sloppy article trying to make something out of the fact that Judge (and D.C. Circuit nominee) Justin Walker was one of the 200-plus judges who signed a letter 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. Yesterday the same reporters hyped a letter, written by Senator Sheldon Whitehouse and signed by six other Democratic senators, that (per the article’s summary) “accused the Federalist Society of supporting a conservative ‘dark money’ campaign to influence the federal judiciary” and, on the basis of that accusation, stated its support for the Committee’s opinion.

The Whitehouse letter is an incoherent mess:

1. The Whitehouse letter contends that federal judges shouldn’t be allowed to be members of the Federalist Society because the Federalist Society is, it claims, “at the center of a network of dark-money-funded conservative organizations whose purpose is to influence court composition and outcomes.” But the Committee itself makes no such claim and, indeed, affirmatively rejects the proposition that the Federalist Society is engaged in anything nefarious. Addressing collectively the Federalist Society, the ABA, and the American Constitution Society, the Committee affirms that it “has never suggested, and does not now suggest, that the organizations act improperly or that their goals and missions are inappropriate.” Rather, “[a]ll are respected organizations that provide welcome services and benefits to their members.”

So rather than engage Whitehouse’s allegations here, I’ll simply emphasize that he is ignoring and failing to support the Committee’s actual reasoning.

2. The Whitehouse letter asserts that “it appears that the charges of ABA partisanship principally reflect that the ABA’s judicial-nominee rating process has declared unqualified judicial nominees to be unqualified.” But the 200-judge letter that Whitehouse attacks makes no mention of the ABA’s role in rating judicial nominees. The 200-judge letter instead highlights that the ABA has taken “public and generally liberal positions on all sorts of divisive issues” (it’s quoting a New York Times article), that “over the last decade, the ABA has filed more than 100 amicus briefs in many of our nation’s most charged cases,” and that the ABA “routinely lobbies Congress.” By contrast, even the Whitehouse letter concedes that the Federalist Society “does not litigate or file amicus briefs, does not lobby, and does not take formal legal, policy, or political positions.”

3. The Whitehouse letter fails to address the actual arguments in the 200-judge letter and even falsely asserts that the “judges go so far as to argue that the Committee’s proposed opinion may infringe on First Amendment speech or association rights.” The judges make no such argument. (Their letter’s only mention of the First Amendment concerns the potential implications of the proposed opinion for judicial membership in religious organizations—a concern, that is, under the Religion Clauses.)

4. The Whitehouse letter also raises some bizarre procedural objections. It complains that the “backlash” to the draft advisory opinion was “prompted by a leak.” But for senators who profess to care about transparency, “leak” is a strange characterization of the public disclosure of a proposed opinion that was circulated to all federal judges, that prominently bears on every page in large red lettering “Exposure Draft” (how complain about exposure of an “Exposure Draft”?), and that nowhere says “Confidential.” (I will note here that I was the first to make the proposed opinion public, so I was the recipient of what Whitehouse mischaracterizes as a leak.)

The Whitehouse letter also complains that “the outcry over the draft has continued outside the public eye” and cites a letter submitted by 29 Republican senators in opposition to the proposed opinion. (It’s evidently too much for Whitehouse to be consistent from one paragraph to another on whether he wants a confidential process or an open one.) But I highlighted—and posted the full text of—that letter from Republican senators some two months ago, along with a public statement from Senator Ben Sasse objecting to the proposed opinion. So much for operating “outside the public eye.” (I do wish that the Committee would make public all the letters that it has received; those sending letters could well think that the Committee prefers to keep the letters private.)

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