Judicial Conference scraps proposed ban on judges’ Federalist Society, American Constitution Society

The federal judiciary’s policymaking body will not seek to ban federal judges from belonging to the right-leaning Federalist Society or the left-leaning American Constitution Society, according to a letter sent to federal judges Thursday.

Previously, the Judicial Conference’s committee on codes of conduct considered a draft advisory opinion that would have prevented federal judges from belonging to either group. Administrative Office of the U.S. Courts director James Duff wrote Thursday to federal judges saying that the proposal was dropped and judges are directed to follow existing guidance surrounding membership in legal organizations.

Mr. Duff’s letter included an excerpt from a forthcoming report of the Judicial Conference which will say that the decision was made because of a “lack of consonance among judges.”

“Rather than attempting to offer advice on membership in specific organizations, the Committee has decided to rely on the advice it has previously given to judges as to how judges should analyze membership in these types of organizations,” read an excerpt from the forthcoming report.

Mr. Duff’s letter was met with applause from proponents of the legal groups no longer facing a potential ban and criticism from other judicial advocacy groups.

Sen. Ben Sasse, Nebraska Republican and Senate Judiciary Committee member, said he was pleased the judicial conference decided not to participate in a “vicious liberal smear campaign.”

“Because [the Federalist Society] take[s] the Constitution and the rule of law seriously, they’ve been the target of a ruthless blitz that will ultimately erode confidence in an independent and fair Judiciary,” Mr. Sasse said in a statement. “The Judicial Conference made the right call.”

Fix the Court, a judicial advocacy group favoring stricter controls on judges and justices behavior and tenure, labeled the Judicial Conference’s decision “feckless.”

“The Codes Committee’s decision to stand down in the face of a one-sided, partisan pressure campaign underscores the very reason such an opinion is necessary,” said Gabe Roth, Fix the Court executive director, in a statement. “But the result doesn’t change the facts. Judges who maintain formal affiliations with these organizations send signals to the public they’re active players on of two ideologically motivated teams. There’s nothing wrong with having these teams, but judges should refrain from putting on either side’s uniform.”

Chief Justice John G. Roberts leads the judicial conference, and Judge Ralph R. Erickson led the committee evaluating the defunct proposal. The Senate confirmed Judge Erickson to the U.S. Court of Appeals for the Eighth Circuit by a vote of 95-1 in 2017, and he later spoke at a Federalist Society event in October 2019.