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Judges Not Barred from Federalist Society, ACS Membership (1)

July 30, 2020, 10:26 PMUpdated: July 30, 2020, 11:34 PM

Federal judges won’t be barred from membership in the conservative Federalist Society or the liberal American Constitution Society after the judiciary’s policy making arm decided to table a draft advisory opinion that would’ve had that effect.

The Judicial Conference abandoned the proposal after a comment period that yielded 300 responses from judges and will instead rely on existing guidance to govern membership in outside organizations, Director of the Administrative Office of the U.S. Courts James C. Duff said in a July 30 memo.

“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,” the committee said, according to the memo from Duff.

The draft was leaked in January after it had been circulated among U.S. judges for review by the Judicial Conference’s Committee on Codes of Conduct.

The decision to table the draft comes after months of debate over the proposed measure that included comments from judges, lawmakers and the public. The proposal drew criticism from conservatives, who viewed it as an attack on the Federalist Society.

President Donald Trump has favored Federalist Society members for his judicial appointments, and has worked closely with a now-former society vice president, Leonard Leo, to identify prospective nominees.

In March, more than 200 federal judges were among those who criticized the draft, taking issue with the distinction it made between the Federalist Society and the American Bar Association. The opinion would’ve restricted Federalist Society and ACS membership but allowed judges’ continued participation in the ABA.

It is inconsistent to disallow Federalist Society membership and permit ABA membership because of public perception of the Federalist Society as a conservative organization, the judges said.

“To make matters worse, this double standard rests on a critically flawed factual premise, for it is simply not true that the Federalist Society takes legal or policy positions,” those judges wrote.

Lawmakers also weighed in on the proposal.

Democrats in May cheered the draft, calling it a “logical clarification of the Code to address the current pressures facing the judiciary” and focused on how membership in the Federalist Society might suggest partiality.

Rep. Jim Jordan (R-Ohio) criticized the proposal in May and asked the Judicial Conference for information about whether the draft was unanimously agreed upon and if the judges who did so are members of the organizations.

In the memo provided to judges July 30, the committee urged members of the judiciary to use their best judgment when making decisions about which organizations they join.

"[P]rudence 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,” the committee said.

(Updated with additional reporting and detail from the memo.)

To contact the reporter on this story: Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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