Not content with stifling dissent at overwhelmingly leftist law schools, the progressive legal establishment is now threatening to trample conservative judges’ freedom of association. Their proposal should be shot down, and its remains should be buried.
The proposal comes from the Committee on Codes of Conduct of the Judicial Conference of the United States. It would allow judges and their clerks to be members of the notably liberal American Bar Association, but not members of the conservative Federalist Society or the left-wing American Constitution Society. As the Federalist Society has been longer-established, and is seen as far more influential than the ACS, so most observers see this proposal as aimed squarely at the Federalist Society.
The purported objection to membership in the Federalist Society and ACS is that such membership would cast doubt on a judge’s impartiality. Both groups allegedly take “a consistent political or ideological point of view equivalent to the type of partisanship often found in political organizations.” The group says the ABA, on the other hand, is dedicated to “promoting legal education, professionalism, and public service … ” and “clearly oriented toward the improvement of the law as a whole” rather than an ideological agenda.
But as both Ed Whelan and the editorialists at the Wall Street Journal have explained, this is poppycock. As Whelan put it:
The Federalist Society, on the other hand, does not take policy positions, lobby, file amicus briefs, or endorse candidates. And so to pretend the ABA is an apolitical organization while the Federalist Society is overly political gets it exactly backwards.
As for the ACS, it is quite explicitly political, embracing a liberal agenda as its central mission, welcoming “activists,” and taking formal positions on public policy and judicial nominations. It thus doesn’t really belong in the same category as the Federalist Society. Membership in ACS might run directly counter to the guidance committee’s stated ethics standards.
The stated “main purpose” of the Federalist Society is to “sponsor fair, serious, and open debate” about a general approach to understanding the Constitution. Most of its members are conservatives who believe in close textual interpretations of the Constitution and laws, but they promote debate on such matters, rather than lobby or file legal briefs. (Disclosure: A decade ago, I made two modestly paid speeches, as a journalist who often covers the courts, for Federalist Society chapters.)
For example, the local Federalist Society chapter in Mobile, Alabama, where I live, has sponsored separate talks by noted civil libertarian Radley Balko, who made his name blasting overzealous prosecutors, and by conservative former ace prosecutor Andrew McCarthy, who often has sparred with Balko’s issue stances. Alabama Attorney General Steve Marshall is a fierce proponent of “civil asset forfeiture” practices who spoke to the group here. So has Darpana Sheth, who spoke against asset forfeiture. And so on.
Despite its “debate society” vibe, the Federalist Society’s conservative predilections make the liberal legal establishment nervous, and this proposed new prohibition is the establishment’s attempt to hobble the group. The federal judges who review this proposal should reject it forthwith.
