The legal community should weigh in on a draft judicial ethics proposal discouraging judges from membership in the conservative Federalist Society or the progressive American Constitution Society, a legal ethics scholar said.
Although seeking outside comment isn’t the normal process for the type of change being contemplated to the judicial Code of Conduct, “most advisory opinions don’t arouse nearly the interest that this one is arousing,” said Arthur D. Hellman, a judicial ethics expert at the University of Pittsburgh School of Law.
The draft advisory opinion by the U.S. Judicial Conference Committee on Codes of Conduct says judicial membership in the two groups at opposite ends of the ideological spectrum is not consistent with the code that governs judges.
“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,” the advisory opinion said.
Membership in either also could “call into question” judicial impartiality on certain subjects and “generally frustrate the public’s trust in the integrity and independence of the judiciary,” the advisory opinion said.
The draft opinion also says law clerk and staff attorney membership in the groups is inconsistent with the Code of Conduct for Judicial Employees.
The Federalist Society describes itself as “a group of conservatives and libertarians interested in the current state of the legal order,” while the American Constitution Society describes itself as a “legal progressive organization.” Both admit judges as members, as well as other attorneys, and have been criticized by those on the other side of the political spectrum as partisan.
The Federalist Society, the older and larger of the two groups, has recently been pulled into the spotlight in relation to the judicial nominations process. A majority of President Donald Trump’s appeals court appointees, for example, are or have been members, according to a Bloomberg Law analysis.
American Constitution Society is often seen as a liberal foil to the Federalist Society, though the organization isn’t as powerful.
While intended for circulation among the judiciary only, the draft document made its way into the public sphere on Tuesday after it was published by the National Review. Bloomberg Law confirmed its authenticity with the Administrative Office of the U.S. Courts.
U.S. Court of Appeals for the Eighth Circuit Judge Ralph R. Erickson, who is chairman of the Committee on Codes of Conduct, told Bloomberg Law the document was released within the judiciary for discussion purposes as an “exposure draft,” and the committee will review comments before making a decision on the final version.
“Nothing in any opinion that we issue as a committee is final until it’s actually published, and it has not been published, it has only been circulated for comment,” Erickson said.
Erickson’s committee is responsible for drafting and interpreting the Code of Conduct for judges and judicial employees. The Code of Conduct for United States Judges is an ethical canon that guides judges’ activities inside and outside the courtroom.
The high-profile nature of this issue merits discussion among people who have had outside interactions with each of these groups, Hellman said. While the Judicial Conference, the policy making body for federal courts, typically doesn’t solicit public comment on advisory opinions, it does for rule changes.
In 2018, for example, the conference solicited public comment and held a public hearing on proposed changes to workplace conduct rules after Judge Alex Kozinski stepped down from the U.S. Court of Appeals for the Ninth Circuit amid allegations of sex harassment.
Those changes were finalized in 2019.
“It does seem to me that a similar process is in order—a public process that would give all interested people, not just the judges, a chance to comment on this advisory opinion,” Hellman said referencing the workplace conduct changes.
In addition to advising against membership in the Federalist Society and the American Constitution Society, the draft opinion also outlines considerations for judges who are members of the American Bar Association, though it doesn’t suggest that judges refrain from membership.
The draft opinion distinguishes the ABA’s mission as categorically different from that of the Federalist Society and American Constitution Society because it’s focused on “improvement of the law in general and advocacy for the legal profession as a whole.”
But it also warns members to “carefully monitor the activities of the ABA to determine whether membership remains consistent with the Code and must query whether a position take by the ABA might call the affiliated judge’s impartiality into question and necessitate recusal in a given matter.”
ABA President Judy Perry Martinez, said the draft is consistent with the judicial code of conduct and recognizes the mission of the ABA is to improve the law and advocate for the legal profession.
“The American Bar Association values our judicial members, who bring important experience and legal knowledge to our association. Their involvement in the ABA strengthens our profession and benefits all Americans who seek justice,” Martinez said in an emailed statement.
The Federalist Society didn’t immediately provide comment on the draft advisory opinion. The American Constitution Society declined a request for comment.
Where the committee drew lines among organizations raised concerns.
“The American Constitution Society is in that draft opinion as a sacrificial lamb so that it’s not just the Federalist Society that looks like it’s being targeted,” a Federalist Society member and volunteer leader told Bloomberg Law on the condition of anonymity. The member said they were speaking for themselves and not the organization as a whole.
Overall, Hellman, the ethics expert in Pittsburgh, said he questions “the committee’s conclusion that ACS and the Federalist Society are clearly out and ABA is in with a question mark.”
Not all ethics experts were on the same page, though.
Charles Geyh, a professor of law at Indiana University who also focuses on judicial ethics, said he agreed with the draft opinion’s conclusion that Federalist Society and ACS membership were not in line with the code of conduct for judges. But he called the inclusion of the ABA in the document “unnecessary” and “troubling.”
“I grudgingly concede the need to say, look, in this polarized political environment, the Federalist Society has morphed and the ACS has morphed to a point where I understand they don’t want judges carrying those flags through membership,” Geyh said.
But when it comes to the ABA, Geyh said the draft opinion could have an unintended chilling effect on judicial membership in the organization.