LIT Has Always Maintained Judges who are Members of the Federalist Society are In Breach of the Judicial Oath. This is Now Reconfirmed in 2020

LIT COMMENTARY

The articles from the conservative lawyers writing opinions for WSJ and EPPC are shocked and stunned by the new draft ethics paper about the fact that Judges, clerks and anyone involved with the judiciary and who are members of the Federalist Society (among others) are in breach of the Judicial Oath.

They shouldn’t be shocked. We’re citizens and have proven without a doubt the negative and biased political impact that the Federalist Society (‘fedsoc’) has on the Judiciary.

For example, there are fifteen, that’s right, 15 judges who are members of the Federalist Society or who attend Federalist Society chapter meetings both in Texas and nationwide.

This isn’t the State Bar, it’s a private business, flouting itself as non-profit which we contest. It’s been proven to be Trumps personal HR department since his appointment as President and you can see that it’s politically one-sided and promotes republican values. This is unacceptable when Judges are supposed to be independent.

However, we anticipate, due to the sheer volume of Trump judicial federal appointments, that this draft will be heavily criticized from within, but the people should have the right to a fair and impartial hearing. We’re not getting that just now.

At LIT, we look forward for this draft to be approved and implemented as soon as possible and for the Judiciary to start following the ethical codes of conduct.

The federal judiciary is a rare American institution these days that has maintained a reservoir of public trust. But that reputation will erode if the Committee on Codes of Conduct of the U.S. Judicial Conference follows through on its intention to ban judges from belonging to the Federalist Society.

The conduct committee is the ethical advisory arm of the federal judiciary and includes 15 judges from around the country. The Federalist Society is the network of conservative and libertarian students and lawyers that has chapters at law schools and sponsors visits and debates with judges and other figures.

We heard recently that the committee was close to issuing a new advisory opinion that would bar judges from belonging to the Federalist Society because it is too political. On Friday we called committee chairman Ralph Erickson, a judge on the Eighth Circuit Court of Appeals, for comment.

He didn’t call back, but on Tuesday we received what is labeled a “January 2020 exposure draft for review and comment” that was sent to federal judges. The draft is what we feared, and we hope judges and others blast it as undermining legal education in America and perhaps violating the First Amendment right of association.

“In sum, the Committee advises that formal affiliation with the ACS [American Constitution Society] or the Federalist Society, whether as a member or in a leadership role, is inconsistent with Canons 1, 2, 4, and 5 of the Code,” says the draft. The American Constitution Society is a liberal legal group created to counter the Federalist Society, though as we’ll explain it is far more active politically.

The draft continues:

“Official affiliation with either organization could convey to a reasonable person that the affiliated judge endorses the views and particular ideological perspectives advocated by the organization; call into question the affiliated judge’s impartiality on subjects as to which the organization has taken a position; and generally frustrate the public’s trust in the integrity and independence of the judiciary.”

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This is political mischief masked in high-sounding rhetoric. The success of the Federalist Society in developing an alternative network to the liberals who dominate law schools has made it a favorite target of Democrats and the left.

A political campaign has been running for months to stigmatize the Federalist Society as too political for judicial participation.

The Codes of Conduct Committee took a step in this direction last March with an advisory opinion that warned judges about belonging to groups that participated in politics.

That was fair enough, but critics then attacked the committee because it “ducked the issue of judicial participation in the Federalist Society,” as an op-ed in the Washington Post put it in July.

That was followed by a Politico piece attacking the Federalist Society as an “advocacy organization” and arm of the Republican Party.

That party line was then picked up by Rhode Island Senator Sheldon Whitehouse in a September Post op-ed. Mr. Whitehouse is among the many Senate Democrats who consider any association with the Federalist Society as a reason to oppose a judicial nominee.

As it happens, a member of the Codes of Conduct Committee is John McConnell, a federal district judge in Rhode Island who is a long-time ally of Mr. Whitehouse. As a lawyer in private practice, Mr. McConnell donated to the Senator’s campaign, and Mr. Whitehouse was state attorney general when Rhode Island hired Mr. McConnell’s firm for legal work. Judge McConnell did not return our calls seeking comment.

The Codes of Conduct draft offers a patina of balance by linking the Federalist Society with the left-leaning American Constitution Society. But this is false equivalence.

The ACS takes positions on issues and judicial nominees and it files amicus briefs.

The Federalist Society takes no such positions and in 38 years has never filed an amicus brief to influence a court on a legal controversy.

Its main function is educational, and it often invites liberals to debate conservatives.

Most Federalist Society members lean right, but as distinguished appellate litigator Ted Olson wrote in Politico in September, “law school faculties are more monolithically liberal than Federalist Society members are conservative.”

The Federalist Society is an alternative to this campus legal conformity. This serves students on the left and right by exposing them to the legal and constitutional views they’ll have to contend with after they graduate.

The Codes of Conduct draft says judges could still attend Federalist Society functions as speakers, though they should watch their words. But does anyone think this will satisfy Mr. Whitehouse and the left?

They’ll use the Codes of Conduct opinion as a cudgel against nominees and perhaps as potential grounds for impeachment against judges.

The Codes of Conduct draft also advises law clerks not to join the Federalist Society, which means young lawyers in their formative years may avoid membership to avoid any future damage to their careers.

As Mr. Olson wrote:

“Such a rule would not protect the judiciary’s reputation for impartiality; rather it would have the opposite effect. It would forbid members of the federal judiciary from exposing themselves to views about the law outside the left-liberal thinking that continues to dominate much of the legal establishment.”

This includes the American Bar Association, which the Codes of Conduct draft claims is less political than the Federalist Society.

Yet the ABA takes positions on countless legal subjects, invariably on the political left.

The draft doesn’t discuss the so-called affinity bars, such as the Hispanic National Bar Association, though they also take policy positions. And what about judges visiting law schools such as Yale, which has an affiliated litigation shop that sued former Bush Administration officials? The Federalist Society is less political, and less an advocacy shop, than any of these.

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The Judicial Conference ultimately reports to Chief Justice John Roberts, who could intervene to stop this exercise before it becomes a major political headache. The Chief’s appointee as chief of the secret FISA intelligence court, Judge James Boasberg, recently tarnished the judiciary by naming a Democratic partisan to clean up the FBI’s FISA application process. The judiciary doesn’t need another a political black-eye, this time over rules issued by insiders and clearly aimed at restricting the right of association of students, lawyers and judges with originalist legal views.

Draft Judicial Ethics Opinion Favors ABA over Federalist Society and ACS

I’m pleased to make public a draft advisory opinion, titled “Judges’ Involvement With the American Constitution Society, the Federalist Society, and the American Bar Association,” that the Committee on Codes of Conduct of the Judicial Conference of the United States has circulated for review and comment to all federal judges.

The draft opinion soundly concludes that “[p]articipation in events hosted by” the American Constitution Society, the Federalist Society, and the American Bar Association “through speaking engagements, panel discussions, attendance, and the like … is broadly permissible under the Code of Conduct for federal judges.” It thus emphatically repudiates the misreading of a February 2019 ethics opinion that former magistrate judge James P. Donohue offered in a Slate essay in November. (I explained in these two posts how Donohue’s claim was clearly wrong.)

On the other hand, the draft opinion curiously advises that federal judges shouldn’t be members of ACS or the Federalist Society but that it’s okay for them to be members of the ABA. I’ll leave it to someone more familiar than I am with ACS to explore what the draft opinion has to say about it. I’ll instead examine the very dubious distinctions that the draft opinion draws between the Federalist Society and the ABA.

The draft opinion purports to present the Federalist Society’s description of itself. (See p. 6.) It quotes, for example, statements in which the Federalist Society describes itself as “a group of conservatives and libertarians dedicated to reforming the current legal order”; as promoting appreciation for the “role of separation of powers; federalism; limited, constitutional government; and the rule of law in protecting individual freedom and traditional values”; and as opposing “a form of orthodox liberal ideology” that dominates law schools and the legal profession. Statements like these, the draft opinion asserts, establish that the Federalist Society is an organization “advocating … conservative causes.” (P. 7 (emphasis added).)

But the draft opinion omits some important things from the Federalist Society’s self-description: It omits that the Federalist Society’s “main purpose is to sponsor fair, serious, and open debate about the need to enhance individual freedom and the role of the courts in saying what the law is rather than what they wish it to be.” (Emphasis added.) More importantly, it omits that the Federalist Society does “not lobby for legislation, take policy positions, or sponsor or endorse nominees and candidates for public service.” (Emphasis added.) It thus fails to address the puzzle how an organization that does not do any of these things—and that also does not litigate or file amicus briefs—can be said to be “advocating … conservative causes.”

By contrast, the draft opinion finds comfort in the ABA’s stated mission “[t]o serve equally our members, our profession and the public by defending liberty and delivering justice as the national representative of the legal profession.” The draft opinion acknowledges that the ABA “has, at times, advocated for particular constituencies, causes, or agendas.” (Emphasis added.) That’s an astounding understatement.

As I illustrated in this post, the ABA has a D.C. “governmental affairs” office that has the express purpose of lobbying Congress and the executive branch on “diverse issues of importance to the legal profession”—issues that (as my examples in that post show) often have nothing to do with the interests of the legal profession itself. The ABA has a Grassroots Action Center through which it tries to mobilize the public “to send messages directly to your elected officials”—e.g., “Tell Congress the Border Needs Help.” The ABA frequently files amicus briefs, including in hot-button cases, in the Supreme Court and in the federal courts of appeals. And it adopts resolutions on a broad range of public-policy topics. On all these matters, the ABA routinely endorses liberal positions.

In short, the ABA has a consistent and longstanding practice of advocating liberal causes. If a line is to be drawn between the Federalist Society and the ABA, it is the ABA that should be deemed to be on the wrong side of the line.

A few other comments:

1. The draft opinion posits that it is “significant” that the ABA maintains “a separate membership section for judges, now called the Judicial Division,” as that division in membership lessens the risk that a judge could be seen as an advocate of the ABA’s policy positions. (P. 10.) Does that mean that the Codes of Conduct Committee would be fine if the Federalist Society set up its own judicial division and federal judges were members of it? If not, why not?

2. The draft opinion states that it is advising that “membership in the ABA’s Judicial Division is not necessarily inconsistent with the Code.” (P. 11.) That statement might be misunderstood as stating that the draft opinion is leaving open whether federal judges may be members of the ABA’s Judicial Division. But as the fuller context makes clear, the draft opinion is saying that membership is okay but that it might lead to the “possibility of disqualification” in some cases.

3. The draft opinion states that its reasoning would also mean that law clerks and staff attorneys can’t be members of ACS or the Federalist Society. (P. 8.) I don’t understand this conclusion, as I would think that a “reasonable and informed public” would understand that judges are making their own decisions and are not delegating them to law clerks and staff attorneys.

4. The draft opinion emphasizes that its conclusions “are neither retrospective nor retroactive” and that it should not “be construed to impugn the ethics or the integrity of judges who have held or currently hold membership in either” ACS or the Federalist Society. (The Committee advised in 2007 that judges may be members of ACS—on reasoning that would also extend to the Federalist Society—and that it could not “distinguish between membership in the ABA and membership in ACS.”)

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