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US judiciary drops draft opinion telling judges they can't be Federalist Society members

By Debra Cassens Weiss

July 31, 2020, 10:04 am CDT

A committee of the U.S. Judicial Conference has tabled a proposed ethics opinion that told federal judges that they should not be members of the conservative Federalist Society and the liberal American Constitution Society.

The Committee on Codes of Conduct has now concluded that decisions on memberships are best left to the judgment of individual judges, according to a July 30 letter to federal judges by James Duff, director of the Administrative Office of the U.S. Courts.

The National Law Journal, Bloomberg Law and Law360 have coverage; the court transparency group Fix the Court criticizes the committee decision in a July 30 press release.

The committee said it now stands by previous guidance on how judges should analyze memberships, which considers such things as recusal obligations and burdens on judicial integrity.

The committee acted after reviewing comments from about 300 judges expressing a wide variety of views. The committee decided to table the matter because the comments “demonstrated a lack of consonance among judges,” the committee said in its report, which was attached to Duff’s letter.

The New York Times had reported in May that more than 200 federal judges, a majority of them appointed by President Donald Trump, had signed a letter defending their right to be affiliated with the Federalist Society. The judges had argued that the Federalist Society does not take legal or policy positions, has not lobbied any policymaking body, and has never filed an amicus brief.

The tabled draft opinion had said that membership in the Federalist Society and the American Constitution Society raises questions about judges’ impartiality. But membership in the ABA’s Judicial Division “does not raise these same concerns and is not necessarily inconsistent” with the conduct code covering federal judges, the draft opinion said.

The draft opinion said judges should “carefully monitor” ABA activities to make sure their membership remains consistent with the conduct code.

The committee says it now stands by previous advice in which the committee “consistently opined that judges may appropriately belong to law-related organizations that embrace a broad range of views.”

“Even so,” the committee report said, “prudence 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.

“In making membership decisions, a judge should regularly review, consider and examine whether membership in any particular organization is consistent with the core values of judging, recognizing that the mission and objectives of organizations may change over time.”

The tabled ethics opinion had analyzed judicial memberships for consistency with Canon 4 of the Code of Conduct for United States Judges. The canon states that a judge may engage in extrajudicial activities that are consistent with the obligations of judicial office. Commentary to Canon 4 says judges should be encouraged to participate in organizations dedicated to the law to the extent that “impartiality is not compromised.”

Despite advising against membership in the Federalist Society and the American Constitution Society, the draft opinion had said judges could participate in their events through speaking engagements and panel discussions.

ABA President Judy Perry Martinez had praised the draft opinion for recognizing “that judges’ membership in the ABA can be consistent with the Code of Conduct for United States Judges. The committee opinion recognizes the ABA’s core mission is ‘concerned with the improvement of the law in general and advocacy for the legal profession as a whole.’ ”