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
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.”
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
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
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
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.
The Judicial Conference ultimately reports to Chief Justice
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
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.
Copyright ©2019 Dow Jones & Company, Inc. All Rights Reserved. 87990cbe856818d5eddac44c7b1cdeb8