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Judiciary Peer Pressure Force Reversal of Ban on Partisan Memberships in ‘Tabled’ Ethics Advisory. But it’s Only Temporary.

The Code of Conduct encourages judges to remain active in the community and the legal profession so long as those activities do not conflict with judicial obligations.

LIT COMMENTARY

In a u-turn, the US Courts reverse on partisan memberships of societies like the Federalist Society. Here’s the letter from Director Jim Duff of the US Courts Judicial Conference Committee on Codes of Conduct.  He clearly intimates that this matter is not over.

TEXAS: It’s even more alarming that Judge Elrod of the 5th Circuit is apparently is on this committee and a staunch and outspoken Federalist Society member. One should note; The Fifth Circuit’s is consistent – at being controversial.

Note; it appears there is a typo over the Ethics Advisory # as prior articles discuss #116 but this letter claims it’s #117. Perhaps it will be clarified.

THE PARTISAN JUDGE JENNIFER WALKER ELROD, 5TH CIR.

“As another side note, there may be an elephant in the room for some of you, wondering, “What in the world is a federal judge doing moderating a Federalist Society panel?”

You may have seen some things in the newspaper about such things.

I want you to know that I take ethical responsibilities very seriously, and in fact, I am privileged to be an appointee on the Judicial Codes of Conduct Committee appointed by the Chief Justice.

So I have personally studied Advisory Opinion 116. And I can’t speak for others, but I can speak for myself and I believe it is entirely ethical to be engaged with lawyers and scholars leading in the field in nonpartisan fashion in the wonderful way that the Federalist Society does.

So I am glad to be here.”

[Video at 3:25-4:22.]

[RETIRING] Hon. Thomas B. Griffith, Judge, United States Court of Appeals, D.C. Circuit and Federalist Society Member

Judge Griffith was appointed to the United States Court of Appeals in June 2005. A graduate of Brigham Young University and the University of Virginia School of Law, Judge Griffith was engaged in private practice from 1985 – 1995 and again in 1999, first in Charlotte, North Carolina, where he was an associate at Robinson, Bradshaw and Hinson, and later in Washington, D.C., where he was an associate and then a partner at Wiley, Rein and Fielding.

His primary areas of emphasis were commercial and corporate litigation and government investigations.

From 1995 – 99, Judge Griffith was Senate Legal Counsel of the United States. In that capacity, he represented the interests of the Senate in litigation and advised the Senate leadership and its committees on investigations, including the impeachment trial of President Clinton.

From 2000 until his appointment to the United States Court of Appeals, Judge Griffith was Assistant to the President and General Counsel of Brigham Young University.

In 1999 – 2000, Judge Griffith was General Counsel to the Advisory Commission on Electronic Commerce, a congressional commission created to study the interplay between tax policy and electronic commerce.

In 2002 – 03, Judge Griffith served as a member of the United States Secretary of Education’s Commission on Opportunity in Athletics, which examined the role of Title IX in intercollegiate athletics. Judge Griffith has long been active in the American Bar Association’s Central European and Eurasian Law Initiative (CEELI). He currently serves on the CEELI Council of the ABA’s Rule of Law Initiative and on the board of directors of the CEELI Institute in Prague.

Since joining the Court, Judge Griffith has taught courses on Presidential Powers and Judicial Process at the Brigham Young University Law School and on the Role of an Article III judge at Stanford Law School.

 Judge Griffith Announces Retirement from D.C. Bench

Griffith is set to retire in September, just two months ahead of the 2020 election, as politics intensify the focus on Trump’s conservative makeover of the federal courts.

The judge, a George W. Bush appointee and 15-year veteran of the D.C. Circuit, made headlines last week when he ruled against House Democratic lawmakers who sought to enforce a subpoena against a former Trump aide.

In a 2-1 opinion, Griffith ruled that courts were powerless to intervene in a House lawsuit to compel testimony from former White House counsel Don McGahn over Trump’s objections. If his ruling stands, it would establish a favorable precedent for future White House efforts to avoid congressional oversight.

However, Griffith also cast a vote against Trump when the president asked the court to reconsider a ruling that paved the way for Democrats to obtain his financial records.

The 65-year-old judge’s pending departure will mark the third vacancy for Trump to fill on the D.C. Circuit, which is sometimes referred to as “the second most important court” after the U.S. Supreme Court — where a disproportionate number of D.C. Circuit judges eventually land.

July 30, 2020 MEMORANDUM

To:                  All United States Judges

From:              James C. Duff

RE:                 UPDATE REGARDING EXPOSURE DRAFT – ADVISORY OPINION NO. 117

(INFORMATION)

On January 21, 2020, I circulated the Judicial Conference Committee on Codes of Conduct’s draft Advisory Opinion No. 117 as an exposure draft for your review and comment. The draft opinion addressed judges’ memberships in certain law-related organizations. The 120-day Judiciary comment period ended on May 21, 2020, and the Committee received comments from about 300 judges expressing a wide variety of views. At its July 2020 meeting, the Committee reviewed the comments and after extensive deliberation decided to table issuing draft Advisory Opinion No. 117 and not to publish it. Instead, the Committee will rely on the advice it has previously provided concerning membership in law-related organizations. See, e.g., Advisory Opinion No. 82: “Joining Organizations.”

The Committee concluded: “The nation depends on a judiciary that is impartial and independent. Consistent with the judge’s oath, each individual judge should take care to make all membership decisions in a way that is consistent with the highest ideals of the profession as expressed in the Code of Conduct. The rubric that is laid out in the Committee’s prior opinions and guidance is the appropriate way to analyze membership decisions, but balancing these considerations is ultimately best left to the judgment of individual judges.”

For your information, the relevant portion of the Committee’s report to the Judicial Conference is attached.

Attachment.

A TRADITION OF SERVICE TO THE FEDERAL JUDICIARY

EXCERPT: Report of the Judicial Conference Committee on Codes of Conduct (September 2020)

As previously reported to the Conference, the Committee at its January 2020 meeting discussed a new draft Advisory Opinion No. 117: “Judges’ Involvement With the American Constitution Society (“ACS”), the Federalist Society, and the American Bar Association (“ABA”).” The draft opinion advised that formal affiliation with the ACS or the Federalist Society, whether as a member or in a leadership role, is inconsistent with the Code of Conduct for United States Judges, and that while membership in the ABA’s Judicial Division is not necessarily inconsistent with the Code, judicial members should carefully monitor the activities of the ABA to determine whether membership remains consistent with the Code and query whether a position taken by the ABA might call the affiliated judge’s impartiality into question and necessitate recusal in a given matter. Draft Advisory Opinion No. 117 was circulated to all judges by the Director of the AO on January 21, 2020 as an “exposure draft” for 120 days for their review and comment. The Committee received comments from about 300 judges, expressing a wide variety of views on the issues raised.

At its July 2020 meeting the Committee reviewed the comments, and after extensive deliberations voted to table issuing draft Advisory Opinion No. 117 and not to publish it. The Committee elected to table the matter because the comments on the issue of membership in law- related organizations demonstrated a lack of consonance among judges. Rather than attempting to offer advice on membership in specific organizations, the Committee has decided to rely on the advice it has previously given to judges as to how judges should analyze membership in these types of organizations. See, e.g., Advisory Opinion No. 82: “Joining Organizations.”

The Code of Conduct encourages judges to remain active in the community and the legal profession so long as those activities do not conflict with judicial obligations. The Committee stands by its previous guidance provided in the Published Advisory Opinions and in the Compendium of Selected Opinions. That advice demonstrates that the Committee has consistently opined that judges may appropriately belong to law-related organizations that embrace a broad range of views.

Even so, prudence dictates that as judges confront a world filled with challenges arising out of emerging technologies, deep ideological disputes, a growing sense of mistrust of individuals and institutions, and an ever-changing landscape of competing political, legal, and societal interests, they need to remain vigilant about problems associated with membership in organizations. In making membership decisions, a judge should regularly review, consider, and examine whether membership in any particular organization is consistent with the core values of judging, recognizing that the mission and objectives of organizations may change over time. The Committee’s past guidance has counseled judges to consider such things as recusal obligations and any burdens on judicial integrity, including how membership in an organization may implicate the judge’s impartiality and how membership in an organization may reflect on the judge or the judiciary as a whole.

The nation depends on a judiciary that is impartial and independent. Consistent with the judge’s oath, each individual judge should take care to make all membership decisions in a way that is consistent with the highest ideals of the profession as expressed in the Code of Conduct. The rubric that is laid out in the Committee’s prior opinions and guidance is the appropriate way to analyze membership decisions, but balancing these considerations is ultimately best left to the judgment of individual judges.

Judiciary Peer Pressure Force Reversal of Ban on Partisan Memberships in ‘Tabled’ Ethics Advisory. But it’s Only Temporary.
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