Judicial Conference policy would ban judges from Federalist Society, American Constitution Society

The federal judiciary’s policy-making body is considering banning judges from belonging to the right-leaning Federalist Society or the left-leaning American Constitution Society.

If enacted, the Judicial Conference’s policy would deal two of the nation’s most influential legal groups a massive blow, while exempting a more established rival, the American Bar Association. The Federalist Society and ACS are legal debate and professional networking groups whose members include students, lawyers, judges and others interested in public policy.

“Official affiliation with either organization [the Federalist Society and ACS] 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,” the draft advisory opinion leaked online reads. “Membership in the ABA’s Judicial Division does not raise these same concerns and is not necessarily inconsistent with the Code.”

The draft opinion of the Committee on Codes of Conduct of the U.S. Judicial Conference labeled the ABA’s advocacy “neutral,” whereas it views the Federalist Society and American Constitution Society as pursuing a “factional” mission beholden to their philosophical interests.

The judicial conference is led by Chief Justice John G. Roberts Jr., and the committee evaluating the proposal is led by Judge Ralph R. Erickson, a federal appellate court judge appointed by President Trump. The Senate confirmed Judge Erickson by a vote of 95-1 in 2017, and he spoke at a Federalist Society event in October 2019.

Conservative lawyers view the proposal as an unprecedented attack on the Federalist Society because of Mr. Trump’s judicial selections. As the judicial conference weighs the proposal, judges belonging to the Federalist Society will be communicating privately with the committee to better explain what the organization does and to stop the proposal, according to a longtime Federalist Society member.

The Federalist Society member argued that the group’s conservative members would be at a greater disadvantage than ACS’ liberal members because progressives have a greater total number of other liberal legal organizations to turn toward.

Representatives from the American Constitutional Society did not respond to requests for comment.

Mike Davis, former Senate Judiciary Committee chief counsel for nominations, said he thinks the proposal is preposterous and noted that the ABA regularly engages in political activity. The bar association acknowledges on its website that its governmental affairs office “maintains an active grassroots lobbying effort.”

“I seriously doubt that the chief justice wants to have the judiciary engage in this political fight where they’re saying that it’s unethical for judges to be members of conservative legal groups like the Federalist Society but not liberal groups like the American Bar Association,” said Mr. Davis, president of the Article III Project. “It’s laughable to say the Federalist Society is political and the ABA is not.”

The draft opinion emphasizes that the new policy was not an effort to impugn the integrity of federal judges belonging to the Federalist Society or ACS, nor should it raise ethical concerns about judicial nominees tied to the groups.

Thus far, federal judges do not appear to be cowed by the proposal. Supreme Court Justice Clarence Thomas is scheduled on Friday to address a Florida meeting of the Federalist Society, where he will be introduced by Gov. Ron DeSantis, Florida Republican. Alongside Justice Clarence Thomas and Mr. DeSantis, other scheduled speakers include nine federal judges and former White House Counsel Don McGahn.

The next meeting of the Federal Judicial Conference is in Washington in May, at which time the draft proposal is expected to undergo additional consideration.

Judge Erickson was not immediately available for comment.