Howdy #BarrElrod is our hashtag for #Sunday #judge Elrod of #CA5 was moderator for the @fedsoc ‘imperfect solutions for the ethical practice of law’ + she’s delighted to inform us she is comfortable with her #nonpartisan role #ethics #txlege #lawtwitter?https://t.co/yqj2gDDESt pic.twitter.com/LVNOyXAm3i

— LawsInTexas (@lawsintexasusa) November 17, 2019

Y’all turn up on the sound: Meet Fifth Circuit #judge James ‘Jim’ Ho’s #Attorney Spouse with a Resume which includes Defending MERSCORP and #DeutscheBank National Trust Co; and she got her husbands old #job at #GibsonDunn in #Dallas after his appt https://t.co/KTKbhHxAnF pic.twitter.com/1tMq0Zc4ta

— LawsInTexas (@lawsintexasusa) November 17, 2019

The Federalist Society just became a no-go zone for federal judges

Conservatives are winning the battle for America’s courts, a triumph decades in the making. This is how they did it.

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Supreme Court Chief Justice John G. Roberts Jr. said in a statement issued in November, countering a reference by President Trump to an “Obama judge.”

In my experience, federal judges work diligently to keep their personal views out of the judicial process. They would be appalled by the thought that simply noting the president who appointed them is all the public needs to know about what went into a decision. Yet, as much as Roberts and others on the federal bench bemoan attempts to reduce the judiciary to just another political institution, some judges have themselves contributed to the problem.

They have done so as members of the Federalist Society, a network of conservative and libertarian lawyers and legal scholars — it claims 60,000 members — that calls itself a nonpartisan educational organization but increasingly appears to be a political operation in all but name.

That much was made clear by a Post investigation in May that showed the intertwined interests of Federalist Society Executive Vice President Leonard Leo and a network of nonprofits dedicated to drumming up support among the public and politicians for the appointment of conservative judges.

Leo told The Post that he is careful to avoid conflicts between the educational work of the Federalist Society and the nonprofit’s advocacy, but the inescapable takeaway from The Post’s investigation is that the organization operates in such a gray area that no judge should be a member of the Federalist Society or participate in its activities.

Yet in the first year of the Trump administration, as the Hill noted, “Of the 13 judicial nominees confirmed since President Trump took office, 10 are either current or former Federalist Society members or regular speakers at its events. Eight of the 10 appellate Trump nominees pending before the Senate have ties to the group.”

The Federalist Society has also advised the president regarding potential Supreme Court nominees, according to the New York Times. (The society says it does not advocate for individual judicial nominees.)

In January, a Washington Post Magazine article about the Federalist Society reported that four members of the court, in addition to Roberts, are either former members or were closely associated with the organization: Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Clarence Thomas.

For anyone concerned about the unseemly mingling of politics and the judiciary, a little-noticed formal ethics opinion issued in February by the committee responsible for the Code of Conduct for United States Judges may offer hope.

Judges are bound by the Code of Conduct, which comprises five canons and associated formal opinions issued by the committee, which provide ethical guidance. Substantial speech and associational restrictions are imposed on active judges to preserve the judiciary’s independence and integrity.

The restrictions are known requirements for people wishing to serve as judges and are accepted, perhaps begrudgingly, by those who serve. The rules exist because deference to the judgment and rulings of courts depends on public confidence in the integrity and independence of judges.

For many years, the Code of Conduct committee ducked the issue of judicial participation in the Federalist Society, in part, it seemed, because many powerful judges (see above) either have been or are associated with the organization.

The committee now appears to have drawn a line with its issuance of advisory opinion No. 116 expanding the scope of prohibited political activity. The Federalist Society is not mentioned by name, but the opinion is directed to the propriety of participation by judges in programs or membership in groups engaged in public-policy debates.

The prohibited political activities include those involving “hot-button issues in current political campaigns” or that are “politically-oriented” or have “political overtones.” Public perception also plays a vital role, as the opinion bars judges from participation that would “give rise to an appearance of engaging in political activity” or “would otherwise give the appearance of impropriety.”

The committee also warned judges that they should stay away from groups “where the funding sources are unknown or likely to be from sources engaged in litigation or political advocacy.” The New York Times noted of the Federalist Society’s 2015 annual report, the organization “discloses who contributes most of its money. But it also takes anonymous contributions, from players including the Mercer family, which was a major backer of Donald Trump.” The annual report listed 14 anonymous donors on the “platinum” level — those giving $100,000 or more.

In the past, the Federalist Society’s assertion of nonpartisanship has provided cover for conservative judges who wish to join an organization whose executive vice president, as The Post noted, is a “maestro” of the “modern machinery of political persuasion.” The Code of Conduct committee’s latest opinion should force a reconsideration.

The expanded definition of prohibited political activity does not endanger the Federalist Society , nor its ability to function as a conduit of conservative ideology for lawyers and academia. It simply makes the continued participation of judges in the organization indefensible.

Trump Isn’t Remaking The Supreme Court. Leonard Leo Is.

The Federalist Society leader has helped put three conservative justices onto the court. He’s about to get a fourth.

WASHINGTON ― For the second time in less than two years, President Donald Trump is poised to fill a Supreme Court vacancy. But he’s not the one remaking the nation’s most powerful court for generations of Americans. It’s Leonard Leo.

Leo, executive vice president of The Federalist Society, a national organization of conservative lawyers, has played a central role in the selection and confirmation of three Supreme Court justices: John Roberts, Samuel Alito and Neil Gorsuch. And on Wednesday, Leo announced that he’s taking leave from his job, effective immediately, to personally advise Trump on a replacement for retiring Justice Anthony Kennedy.

Trump plans to pick someone from his previously released list of 25 potential Supreme Court nominees ― a list that Leo put together for him, at Trump’s request. If all goes as planned, Leo, 53, will have helped secure his fourth justice on the court by the early fall.

No president in modern history has had this kind of influence in reshaping the Supreme Court. Leo doesn’t singularly deserve credit for putting these judges on the court, of course; it takes teams of people to get a nominee through. But long after Trump is out of the White House, Americans will be feeling the effects of a court stacked not by any particular president but, in large part, by Leo.

“It’s incredible,” said Carl Tobias, a law professor at Virginia’s University of Richmond and an expert on judicial nominations. “Certainly, he’s had an outsize influence for any one person. I know President George W. Bush relied on him a fair amount for two nominees, and in this administration, I don’t think there’s ever been anything quite like it.”

In 2007, Leonard Leo shared the stage at the National Catholic Prayer Breakfast with President George W. Bush, whom he advised on two Supreme Court picks.

Leo is essentially a master networker. Over the span of two decades, he has turned The Federalist Society into a pipeline for taking conservative law students and grooming them to be judges and public figures.

His strategy is simple enough: Send Federalist Society speakers to law schools around the country and engage students. Foster networking between young conservatives and society members, who can help students land clerkships with judges who are also members. Host local and national events for people to socialize and essentially audition for jobs in corporate law firms or in government.

Over time, members, now part of a massive conservative network of about 70,000 people, help each other get powerful jobs in government or on federal courts ― including the Supreme Court.

“Anyone who is anyone who is a conservative lawyer is a member of The Federalist Society,” said Carrie Severino, chief counsel of Judicial Crisis Network, a conservative judicial advocacy group with close ties to Leo and that helped get Gorsuch confirmed.

Five Supreme Court justices have benefited from Federalist Society membership: Gorsuch, Alito, Roberts, Clarence Thomas and the late Antonin Scalia. Many of Trump’s nominees to U.S. district and circuit courts were vetted by Leo. Some, like Circuit Court Judge Amy Coney Barrett, who has suggested that Roe v. Wade was “an erroneous decision,” are now on Trump’s shortlist for a Supreme Court seat.

Of the 25 people on Trump’s list of potential Supreme Court picks, all but one ― Margaret Ryan, a judge on the U.S. Court of Appeals for the Armed Forces ― are either Federalist Society members or have been involved with its events.

“We’re at the point where almost the entire Supreme Court is something Leonard Leo was active in in this process,” laughed Severino. “There isn’t anyone who knows the conservative legal movement as well as him.”

The Federalist Society maintains that it takes no official positions on policies; rather, it advocates principles, like the duty of the judiciary, to “say what the law is, not what it should be.” But there’s a clear pattern to the judicial nominees being fed by the group: They are young, conservative and have records of being incredibly anti-abortion, anti-LGBTQ rights and anti-voting rights.

We’re at the point where almost the entire Supreme Court is something Leonard Leo was active in in this process.      – Carrie Severino of Judicial Crisis Network

For progressives, it’s been a nightmarish perfect storm: Trump has huge numbers of U.S. court seats to fill, thanks to Senate Republicans denying so many seats to President Barack Obama; the White House is outsourcing the selection of judicial nominees to The Federalist Society; and the Republican-led Senate is eager to confirm all of them.

So far, Trump has confirmed one Supreme Court justice, 20 district court judges and a whopping 21 circuit court judges ― more than any president has confirmed by this point in office and nearly one-eighth of all circuit court seats.

“Selecting nominees from The Federalist Society ensures that the right will cement the hold they have on the judiciary for the next several decades,” said Nan Aron, president of Alliance for Justice, a left-leaning judicial advocacy group.

“What they have in common is an exceptional hostility to the progress that’s been made in this country since the New Deal, whether that’s to workers, civil rights litigants, women, consumers or people who care about the environment,” Aron said. “Nominees being confirmed by the Republican Senate today would have been deemed unqualified even under President George W. Bush because of their extremism.”

A White House spokesman did not respond to a request for comment about how central Leo is to Trump’s Supreme Court selection process.

The Federalist Society did not respond to a request for an interview with Leo.

White House officials might chafe at the idea that it is Leo, and not them, driving Trump’s judicial selections. Maggie Haberman of The New York Times conveyed as much in a Monday tweet about the role of the White House legal team.

“Clarifying something from yesterday – the Federalist Society and Leonard Leo are not synonymous when it comes to the Trump list of 25 prospective SCOTUS nominees,” she tweeted. “Leo developed this list with Don McGahn, the WH counsel who is hugely important to this process.”

Maybe. But it can’t hurt that McGahn is a Federalist Society member.

Committee on Codes of Conduct Advisory Opinion 116

No. 116: Participation in Educational Seminars Sponsored by Research Institutes, Think Tanks, Associations, Public Interest Groups, or Other Organizations Engaged in Public Policy Debates

This opinion considers the propriety of participation by a judge or law clerk (either current or future) in programs sponsored by research institutes, think tanks, associations, public interest groups, or other organizations engaged in public policy debates. Over time, the Committee has received multiple inquiries generally related to this topic, including requests related to organizations as varied as national bar associations; state and local bar associations; associations of lawyers, judges, and law students; advocacy groups; research institutes; public interest groups; and other organizations.

A.           Background: The Organizations

In recent years, the types of organizations covered by this Advisory Opinion have played an ever-more prominent role in the public policy discourse of the nation. As a result, judges and judicial employees are more frequently called upon to decide whether participation in a particular educational seminar or conference is consistent with their role in the judiciary. Organizations that were once clearly engaged in efforts to educate judges and lawyers have become increasingly involved in contentious public policy debates. Gone are the days when it was possible for a judge to identify the sponsoring organization and know that the judge was within a bright-line “safe zone” for participation.

In assessing the propriety of participation in a conference or seminar (either as lecturer, panel member, or attendee), a number of important considerations confront the judge or judicial employee. The factors that relate to the sponsoring organization itself include: (1) its identity; (2) its stated mission, including any political or ideological point of view; (3) whether it engages in education, lobbying, or outreach to members of Congress, key congressional staffers, or policymakers in the executive branch; (4) whether it conducts outreach or educational programs for the media, academia, or policy communities; (5) whether it is actively involved in litigation in the state or federal courts, including the filing of amicus briefs, participating in moot courts or boards to prepare candidates or advocates; (6) whether it holds rallies, meetings, or appearances in conjunction with hearings or trials with a view towards influencing public opinion; (7) whether it advocates for specific outcomes on legal or political issues; (8) its sources of funding; and (9) whether it is generally viewed by the public as having adopted a consistent political or ideological point of view equivalent to the type of partisanship often found in political organizations.

Additional factors that relate to the educational program itself need to be considered by the judge or judicial employee, including: (1) whether the cost of attendance (including items such as scholarships, tuition waivers, and room and board) will be borne by sponsoring organization; (2) whether the sponsoring organization requests that participation, materials, or subject matter be maintained secret or confidential; and (3) whether participation is limited to certain applicants based on criteria designed to screen out persons of particular backgrounds or points of view or is open for general participation.

B.           Applicable Canons and Commentary Background

The activities of judges and judicial employees are governed by different codes of conduct, but many of the obligations under both the Code of Conduct for United States Judges (“Judges’ Code”) and the Code of Conduct for Judicial Employees (“Employees’ Code”) are the same for either a judge or law clerk participating in outside educational activities.

The foundational principle of the Judges’ Code is found in Canon 1: “An independent and honorable judiciary is indispensable to justice in our society. A judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved.” As explained in the Commentary to Canon 1, this foundational principle exists because “[d]eference to the judgments and rulings of courts depends on public confidence in the integrity and independence of judges.” A judge’s compliance with the law and the Judges’ Code preserves public confidence in the impartiality of the judiciary, whereas “violation of this Code diminishes public confidence in the judiciary and injures our system of government under law.” Commentary to Canon 1. Indeed, Canon 2A directs that “[a] judge should . . . act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

The Employees’ Code mirrors the foundational Canon 1 principle of the Judges’ Code. Canon 1 of the Employees’ Code states: “An independent and honorable Judiciary is indispensable to justice in our society.” Judicial employees must therefore “personally observe high standards of conduct so that the integrity and independence of the judiciary are preserved and the judicial employee’s office reflects a devotion to serving the public.” Id. All provisions of the Employees’ Code should be construed and applied to further these objectives.” Id. Notably, in addition to the standards called for under the Employees’ Code, judicial employees are further subject to potentially “more stringent standards required by law, by court order, or by the appointing authority.” Id. Canon 2 of the Employees’ Code similarly directs that a judicial employee should not engage in any activities that would call into question the propriety of the judicial employee’s conduct in carrying out the duties of the office.

Participation in outside educational activities also must be consistent with the Canon 2 principle, found in both the Judges’ and Employees’ Codes, mandating the avoidance of both impropriety and the appearance of impropriety in all activities. To that end, Canon 2B of the Judges’ Code provides:

A judge should not allow . . . social, political, financial, or other relationships to influence judicial conduct or judgment. A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge. A judge should not testify voluntarily as a character witness.

In nearly identical terms, Canon 2 of the Employees’ Code provides that “[a] judicial employee should not allow . . . social, or other relationships to influence official conduct or judgment. A judicial employee should not lend the prestige of the office to advance or appear to advance the private interests of others.”

In determining whether to attend or participate in an outside activity, judges also should be guided by Canon 3, which directs a judge to perform the duties of the office “fairly, impartially, and diligently.” Canon 3A(1) admonishes that “a judge … should not be swayed by partisan interests, public clamor, or fear of criticism.” The Commentary to Canon 3A(3) also reaffirms a judge’s “duty under [the Judges’ Code] to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary applies to all of the judge’s activities,” whether professional or personal. Likewise, law clerks should be guided by Canon 3 of the Employees’ Code, which requires employees to “adhere to appropriate standards in performing the duties of the office.” Specifically, Canon 3C mandates:

A judicial employee should diligently discharge the responsibilities of the office in a prompt, efficient, nondiscriminatory, fair, and professional manner . . . [and] should never . . . perform any . . . function of the court in a manner that improperly favors any litigant or attorney, nor should a judicial employee imply that he or she is in a position to do so.

Of particular relevance to outside educational activities, Canon 4 of both the Judges’ Code and Employees’ Code offers guidance on participation in extrajudicial activities. For judges, Canon 4 allows that “a judge may engage in extracurricular activities, including law-related pursuits . . . and may speak, write, lecture and teach on both law-related and nonlegal subjects” but cautions that “a judge should not participate in extrajudicial activities that detract from the dignity of the judge’s office, interfere with the performance of the judge’s official duties, reflect adversely on the judge’s impartiality, [or] lead to frequent disqualification.” The Commentary to Canon 4 reflects that, because a judge is “a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the law, the legal system, and the administration of justice” and that, “[t]o the extent the judge’s . . . impartiality is not compromised, the judge is encouraged to do so, either independently or through a bar association, judicial conference, or other organization dedicated to the law.” For law clerks, Canon 4 directs that, “[i]n engaging in outside activities, a judicial employee should avoid the risk of conflict with official duties, should avoid the appearance of impropriety, and should comply with disclosure requirements.” When considering outside activities that concern the law, the legal system, or the administration of justice, however, a judicial employee must “first consult with the appointing authority to determine whether the proposed activities are consistent with . . . [the] code.”

Additionally, judges and employees must consider canons governing reimbursement for expenses. Canon 4H of the Judges’ Code allows a judge to “accept compensation and reimbursement of expenses for the law-related and extrajudicial activities permitted by this Code if the source of the payments does not give the appearance of influencing the judge in the judge’s judicial duties or otherwise give the appearance of impropriety,” subject to certain restrictions. However, judges must be cognizant of Canon 4D(4), which requires judges to “comply with the restrictions on acceptance of gifts and the prohibition on solicitation of gifts set forth in [The Judicial Conference Ethics Reform Act Gift Regulations (“Gift Regulations”)].” Canon 4E of the Employees’ Code similarly reflects:

A judicial employee may receive compensation and receipt of expenses for outside activities provided that receipt . . . is not prohibited or restricted by this code, the Ethics Reform Act, and other applicable law, and provided that the source of the payment or amount of such payments does not influence or give the appearance of influencing the judicial employee in the performance of official duties or otherwise give the appearance of impropriety.

Canon 4E further directs that expense reimbursement “be limited to the actual cost of travel, food, and lodging reasonably incurred by a judicial employee………………….. Any payment in excess of such an amount is compensation.”

Lastly, outside activities also are governed by Canon 5 restrictions found in both the Judges’ and Employees’ Codes regarding the proscription against political activity. Canon 5A specifies that “[a] judge should not make speeches for a political organization” or attend any “event sponsored by a political organization.”

The Commentary to Canon 5 defines “[t]he term ‘political organization’………………………………………………………………………… [as] a political party, a group affiliated with a political party or candidate, or an entity whose principal purpose is to advocate for or against political candidates or parties in connection with elections for public office.” Canon 5(C) provides further that “[a] judge should not engage in any other political activity.”

For law clerks, the Employees’ Code likewise directs against engaging in political activity, whether partisan or nonpartisan. In particular, Canon 5A provides that “[a] judicial employee should refrain from partisan political activity;………………………………… should not make speeches for or publicly endorse or oppose a partisan political organization or candidate;……………………. and should not otherwise actively engage in partisan political activities.”

Canon 5(B) further provides that “[a] member of the judge’s personal staff [or] a lawyer who is employed by the court and assists judges on cases………………. should refrain from nonpartisan political activity.”

C.           Summary of Prior Committee Advisory Opinions on Attendance or Participation in Privately Funded Seminars

The Committee has provided guidance on the permissibility of judicial participation in legal seminars in Advisory Opinion Nos. 67, 87, 93, and 105.

Advisory Opinion No. 67 addresses a judge’s attendance at “seminars and similar educational programs organized, sponsored, or funded by entities other than the federal judiciary.” Notably, this Advisory Opinion applies equally to law clerks, who are subject to nearly identical standards under the Employees’ Code. As stated in Advisory Opinion No. 67, the education of judges (and law clerks) in various academic and law- related disciplines serves the public interest, except where particular circumstances make attendance inadvisable. That Advisory Opinion sets out six nonexclusive factors that may affect the propriety of attendance at a seminar:

• whether the sponsor is a recognized and customary provider of educational programs;
• whether an entity other than the sponsor is a substantial source of funding;
• whether the sponsor or a source of substantial funding of the seminar is currently involved or is likely to be involved as a party or attorney in litigation before the judge;
• the subject matter of the seminar, including whether contributors of seminar funding play a role in designing the curriculum or are involved as parties to litigation;
• the nature of the expenses paid or reimbursed or whether the seminar is primarily educational and not recreational in nature; and
• whether the seminar provider makes public disclosure about the sources of seminar funding and

Advisory Opinion No. 67 specifically notes that the circumstances of the educational program may raise questions under Canons 2, 3, and 4 of the Judges’ Code. If there is insufficient information for the judge (or law clerk) to decide whether attendance may run afoul of the Code, the judge (or law clerk) should decline the invitation or take reasonable steps to obtain additional information. Ultimately, if the necessary additional information is not available or if additional information obtained does not resolve questions concerning the propriety of attendance, the judge (or law clerk) should not attend. Finally, judges and law clerks should keep in mind that payment of tuition and expenses involved in attendance at an independent seminar constitutes a gift within the meaning of the Code, the Gift Regulations, and applicable statutes, and thus acceptance of such payment may be restricted or prohibited. It is the judge’s or law clerk’s obligation to ensure that acceptance of the payments is in compliance with all applicable rules.

Advisory Opinion Nos. 87 and 105 also provide guidance on the permissibility of judicial participation in legal seminars. Advisory Opinion No. 87 discusses participation in continuing legal education (“CLE”) programs offered by “CLE providers, accredited institutions, and similar established educational providers.” In Advisory Opinion No. 87, the Committee opined that Canon 2 principles are implicated when a judge participates in legal training programs whether such programs offer CLE credit or not and whether the sponsor is a “for-profit” or “non- profit” entity. Thus, merely because a provider offers CLE credit or is a “non-profit” entity does not eliminate the requirement that a judge determine whether his or her participation runs afoul of Canon 2.

Advisory Opinion No. 105 focuses on “private law-related training programs other than those offered by CLE providers, accredited institutions, and similar established educational providers . . . offered to a selected audience of attorneys and/or litigants and designed to improve attendees’ legal skills or performance in judicial proceedings.” Advisory Opinion No. 105 identifies five factors that a judge should consider before participating in a private law-related training program:

• the sponsor of the training program;
• the subject matter;
• whether there is a commercial motivation for the program;
• the attendees, including whether members of different constituencies are invited to attend; and
• other factors, including the location of the program and advertising or promotion of the

In the case of programs offered by bar associations and other nonprofit entities, consideration of these five factors “raise[s] fewer concerns than [in programs] sponsored by for-profit entities, mainly because the sponsors do not have a commercial motivation and the programs are generally open to a broad audience.”  Id.  However, “[a] judge’s participation in a training program that will only benefit a specific constituency, as opposed to the legal system as a whole, cannot be characterized as an activity to improve the law within the meaning of Canon 4.” Id. As an example, the Committee has said that “judge participation in legal training offered by an issue-specific advocacy group that appears regularly in the judge’s court may be perceived as lending the prestige of the judicial office to advance the interests of the group.” Id.

Advisory Opinion No. 93 addresses the ethical implications of a judge’s or law clerk’s extrajudicial, law-related activities arising under Canons 1, 2, 4, and 5:

[T]o qualify as an acceptable law-related activity, the activity must be directed toward the objective of improving the law, qua law, or improving the legal system or administration of justice, and not merely utilizing the law or the legal system as a means to achieve an underlying social, political, or civic objective.

Advisory Opinion No. 93 further states that, while “[a] judge’s participation in law- related activities is encouraged . . . not every activity that involves the law or the legal system is considered a permissible activity.” This is so because “[l]aw is, after all, a tool by which many social, charitable and civic organizations seek to advance a variety of policy objectives.” Id. “A permissible activity . . . is one that serves the interests generally of those who use the legal system, rather than the interests of any specific constituency, or [a permissible activity is one that] enhances the prestige, efficiency or function of the legal system itself.” Id. On the other hand, “judicial participation in organizations that advocate particular causes rather than the general improvement of the law is prohibited.” Id.

D.           Law Clerks Who Have Accepted an Offer but Not Yet Entered into Service

Concerns are also raised when a conference or seminar is directed to future law clerks. While the Employees’ Code applies only to “employees of the Judicial Branch” and not to prospective employees, the Committee has counseled judges that they may impose limits on the pre-employment conduct of their future law clerks to avoid activities contrary to the Employees’ Code, such as accepting a salary advance from a law firm prior to a clerkship. See, e.g., Advisory Op. No. 83 (advising that “[a] judge should not permit a law clerk to accept a salary advance from a law firm, either before or during the clerkship” because acceptance “could undermine public confidence in the integrity and independence of the court, and is contrary to [Canons] of the Employees[’] Code”). The Committee also has recognized that judges may prohibit their future law clerks from engaging in conduct otherwise permissible under the Employees’ Code. Id. (acknowledging that “some judges may prohibit their future . . . law clerks from accepting bonuses or payments that are [otherwise] permissible”). In directing advice to future law clerks, the Committee has restricted the term “future law clerks” to those persons who have accepted future employment in a judge’s chambers but who have not yet entered into actual service. The conduct of persons who merely aspire to become employed as a law clerk at some future date are beyond the scope of the Employees’ Code.

That said, the Committee is sensitive to the public perception that “law clerks are in a unique position since their work may have direct input into a judicial decision,” and, “[e]ven if this is not true in all judicial chambers, the legal community perceives that this is the case based upon the confidential and close nature of the relationship between clerk and judge.” Advisory Op. No. 51.

It is the Committee’s view that a judge has the discretion to instruct a future law clerk regarding pre-employment educational opportunities that may have an impact on the clerkship. A future law clerk should consult his or her appointing authority for guidance. The appointing authority should recognize that future law clerks are not fully subject to the Employees’ Code until they enter into service, so care should be taken by the judge to ensure that a directive not to participate in First Amendment protected activity be limited to the extent actually necessary to protect the judiciary from the identified harm.

E.           Ethical Concerns for Participating in a Sponsored Educational Conference or Seminar

The Committee has counseled that it is essential for judges to assess each invitation to participate or attend a seminar on a case-by-case basis. As stated in Advisory Opinion No. 67, “[t]hat a lecture or seminar may emphasize a particular viewpoint or school of thought does not necessarily preclude a judge from attending,” and a judge’s determination whether to attend a particular seminar should be made considering the totality of the circumstances. (See also Note 1 below).

The identity of the seminar sponsor

Concerns are raised when the sponsor is regularly engaged in contentious public policy debates. That is so even where the seminar or conference is an isolated offering of education. Additional concerns are raised where the seminar or conference specifically targets judges or judicial employees. See also, Judicial Conference Policy on Judges’ Attendance at Privately Funded Educational Programs, at https:/www.uscourts.gov/judges-judgeships/privately-funded-seminars-disclosure-system disclosure/judicial-conference-policy-judges-attendance.

One concern arises from the prohibition in Advisory Opinion No. 105 of “lending the prestige of the judicial office” to advance the interests of a special interest or issue specific group. In that Advisory Opinion, we cautioned that a judge’s participation in legal training offered by an issue-specific advocacy group that would benefit only a particular constituency, as opposed to the legal system as a whole, could not be characterized as proper extrajudicial activity involving the law. The Committee has advised that participation in viewpoint-specific programs poses fewer ethical concerns if attendance is open to the general legal community. When the seminar or conference targets a narrow audience of incoming or current judicial employees or judges, the judge or employee must take care to ascertain that the program is not such that it could be seen to curry influence with the employee or judge or to impact the outcome of future cases. While it is undoubtedly true that neither judges nor judicial employees are likely to be influenced by a single seminar, both the Judges’ Code and the Employees’ Code prohibit participation in programs that might cause a neutral observer to question whether this type of influence is being sought by the sponsoring organization.

Participation in a viewpoint-specific training program that will only benefit a specific constituency, as opposed to the legal system as a whole, cannot be characterized as a permissible activity to improve the law.

Nature and source of seminar funding

The Committee has advised that the existence of additional “private sponsors” at bar association CLE programs does not categorically prohibit a judge from participating as a speaker or panelist. However, the presence of such sponsors cannot be ignored by judges who participate. In fact, the presence of private sponsors likely increases the need for additional scrutiny. Thus, the Committee has advised in the past that a judge must factor funding and sponsorship information into the evaluation of whether to attend a particular educational program.

Whether a sponsor or a source of substantial funding is involved in litigation or likely to be involved

Even if the sponsoring organization is not engaged in litigation, issues are raised if the funding to sponsor the seminar is from sources that are involved in litigation or political advocacy. Where the funding sources are unknown or likely to be from sources engaged in litigation or political advocacy, judges and judicial employees should not participate. The Committee has cautioned that, if there is insufficient information for the judge to decide whether to attend a seminar, then the judge should decline the invitation or take reasonable steps to obtain additional information. Advisory Op. No. 67.

Subject matter of the seminar

Ordinarily, the subject matter of seminars is not an issue unless the judge or judicial employee is aware that the sponsor or source of substantial funding for the seminar is a litigant before the judge and that the topics covered in the seminar are directly related to the subject matter of the litigation. Advisory Op. No. 67. When the judge or judicial employee is unable to determine the sources of funding, the Committee cautions potential speakers or applicants against participation.

Further, Canon 4A of the Employees’ Code reminds judicial employees that, as a general matter, their outside activities “should not detract from the dignity of the court, interfere with the performance of official duties, or adversely reflect on the operation and dignity of the court or office the judicial employee serves.” The Committee has previously advised that these concerns may be present when an advocacy organization takes positions on legal issues that frequently come before the federal courts. Where the participation of a judge or judicial employee in a seminar could create the impression of a predisposition regarding a legal issue or could suggest that a proposed decision may be influenced by the relationship with the advocacy group, participation is likely inappropriate.  The Committee previously has advised that, although attendance at a seminar that emphasizes a particular viewpoint could be perceived as merely legal training, attendance that requires the attendee to form a lasting association with the sponsoring organization is impermissible.

Nature of expenses paid

Payment of tuition and expenses involved in attendance at an independent seminar constitutes a gift within the meaning of the Code, the Gift Regulations, and applicable statutes, and thus acceptance of such payment is subject to restrictions.

The Gift Regulations, which implement 5 U.S.C. §§ 7351 and 7353, prohibit judicial officers and employees from soliciting or accepting a gift from any person (1) who is seeking official action from or doing business with the court or (2) whose interests may be substantially affected by the performance or nonperformance of the judge’s or employee’s official duties. Guide to Judiciary Policy, Vol. 2C, Ch. 6, § 620.30, 620.35. The acceptance of gifts by judges and judicial employees implicates Canons 1, 2, 3, 4, and 5 of the Judges’ and Employees’ Codes regarding preserving the integrity and independence of the judiciary, avoiding even the appearance of impropriety, and discharging the duties of their offices with respect, dignity, and impartiality. See also Advisory Op. No. 67.

The Gift Regulations preclude a judicial officer or employee from accepting a gift “if a reasonable person would believe it was offered in return for being influenced in the performance of an official act or in violation of any statute or regulation.” Guide to Judiciary Policy, Vol. 2C, Ch. 6, § 620.45. The Committee has previously opined that judges and law clerks may accept a waiver of tuition and reimbursement of expenses to attend independent, law-related seminars where neither the sponsor nor the source of the funding for such activities (1) is involved in litigation before the court, (2) is likely to come before the court, (3) is seeking to do business with the court, or (4) has any interests that may be substantially affected by the performance or nonperformance of the judge’s or law clerk’s official duties. In addition, where the sources of the funding for the event are unknown, judges and law clerks should inquire as to the specific sources to ensure that there is no actual or potential conflict or appearance of impropriety.

Other Factors

One additional factor meriting further consideration is political activity.  Canon 5 of both the Judges’ Code and the Employees’ Code prohibits political activity by judges and law clerks. The Committee has broadly interpreted “political activity” to include any activity involving “hot-button issues in current political campaigns” or which is “politically- oriented” or has “political overtones.” For instance, the Committee has advised law clerks to avoid outside activities that involve contentious political issues and has advised law clerks not to attend a legal training program sponsored by an issue-specific advocacy group that may be involved in federal litigation.

When a judge engages in law-related activity with political overtones, a judge should consider whether the express or implied values of other canons will be contravened. “A judge should be sensitive to the nature and tone of the activity, and should not be drawn into an activity in a manner that would contravene Canon 2’s goals of propriety and impartiality or Canon 5A’s prohibition of activities pertaining to political organizations and candidates.” Advisory Op. No. 93. Where participation would undermine public confidence in the impartiality of the judiciary, would give rise to an appearance of engaging in political activity and of undue influence on the judge, or would otherwise give the appearance of impropriety, the Committee has advised against attending a seminar or conference.

Notes for Advisory Opinion No. 116

1 Although Advisory Opinion No. 67 provides guidance to judges, this guidance is equally applicable to law clerks. As members of a judge’s personal staff, law clerks must be more circumspect in their activities than other court employees due to their direct association with a single judge.

Because of this close association and the application of similar ethical standards, the Committee’s evaluation of whether a judge may participate in a seminar or conference also incorporates whether a law clerk may participate, except as otherwise noted.

February 2019

In a 2016 radio interview, #judge Oldham said the US Supreme Court is “in many ways . . . the most dangerous branch” of Govt. He argued that the Court “often fails to enforce our sacred rights that are in the Constitution while creating ones that are not”https://t.co/nBzP5WDOfl pic.twitter.com/gPM4J0hHht

— LawsInTexas (@lawsintexasusa) November 19, 2019

The first day of work after at least 3 of the 11th Circuit Judges were moderating @fedsoc National Lawyers Convention in Washington DC where there was a large gathering of 5th Circuit Judges, also moderating #fedsoc2019 #judge #November18th #WilliamBarr https://t.co/sFXCGxkq2v pic.twitter.com/7iZ4cDuRwu

— LawsInTexas (@lawsintexasusa) November 18, 2019