The Federalist Society is Under Attack (Again)

As has been widely reported, a recently-released draft advisory opinion of the Committee on Codes of Conduct of the Judicial Conference of the United States—a 15-member group of judges responsible for fashioning and interpreting ethical rules applicable to the federal judiciary—concluded that membership in the non-partisan Federalist Society by judges, law clerks, and staff attorneys is improper because the group’s ideological orientation would call its members’ impartiality into question. The draft ethics opinion, which was reportedly leaked, is subject to internal discussion within the Committee during a 120-day comment period ending on May 20. For the purposes of full disclosure, I am a longtime member and supporter of the Federalist Society.

The draft opinion included the American Constitution Society, a liberal counterpart to the Federalist Society, in the membership ban. For inexplicable reasons, the draft opinion did not extend the ban to the American Bar Association, even though that left-leaning organization—unlike the Federalist Society—advocates political causes, engages in lobbying, files amicus briefs, and adopts resolutions on a broad range of public policy topics. The ABA essentially serves as a liberal special interest group, but judges are still permitted to be a member while serving on the federal bench.

Many commentators have criticized the draft opinion, which reverses the Committee’s 2007 position which treated the ACS as indistinguishable from the ABA. Critics of the draft opinion include the Wall Street Journal (in a pair of hard-hitting editorials), Carrie Severino and Ed Whelan in National Review, and Erielle Davidson in The Federalist. The Wall Street Journal called the draft opinion “political mischief masked in high-sounding rhetoric.” Attacks on the Federalist Society are not new. Over two decades ago, former ABA president Jerome Shestack (who, while serving on the ABA’s judicial appointments committee, joined the minority in rating Robert Bork “not qualified” for the U.S. Supreme Court) condemned the Federalist Society in the National Law Journal as an “extremist right-wing group.”

When I was still practicing law in California, I responded to Shestack in a 1999 article in the American Lawyer Media publication Cal Law, entitled “Hey, Hey, ABA—How Many Federalists Did You Smear Today?” I pointed out that the Federalist Society is a mainstream organization that promotes—typically through open debate—ideas central to the Founding: judicial fidelity to the Constitution, maintaining federalism and the separation of powers, and upholding the rule of law. These ideas are, in the abstract, hardly controversial and certainly do not constitute—as the draft opinion contends—“advocating…conservative causes.” Alas, political discourse has become even more polarized in the subsequent 20 years, and the “cancel culture” has become even more entrenched.

Still, one is prompted to wonder: What is going on? The answer, in my estimation, is that the Left, having gained hegemony in many influential spheres of American life—the mainstream media, Hollywood, academia, the legal establishment, and even commerce (as evidenced by Goldman Sachs getting “woke”)—has grown frustrated at its failure to extinguish the opposition in legal academia. Despite numerical domination on the faculty of elite law schools—so overwhelming at some schools as to constitute an insular echo chamber—progressives have failed to conquer the conservative-libertarian remnant. Indeed, thanks in large part to the spirited debates sponsored by the Federalist Society since its founding in 1982, various progressive fads such as critical legal studies (and its various spin-offs, such as critical race theory), deconstructionism, and creative theories in favor of construing the Constitution as a “living” document have failed to gain significant traction outside of the fever swamp of law school faculties.

To the contrary, originalism has become the most accepted theory of constitutional interpretation (even by some scholars on the left), the judiciary—buoyed by Republican-appointed judges—soberly ignores legal academia’s entreaties, and, most frustrating of all, the American public stubbornly hews to the traditional notion that judges should apply the law, not make it up—thereby rejecting the past 70 years of activist legal scholarship. Since left-of-center lawyers predominate in large law firms, the organized bar, and the many “public interest” litigation groups engaged in advocacy, they are no doubt disheartened by witnessing the confirmation of an unprecedented number of federal judges during the administration of a president whom they vociferously despise. To rub salt in the wound, many of Trump’s judicial appointees were members of the Federalist Society.

What do these liberal lawyers do when they can’t win a debate or prevail in an election? They resort to name-calling, try to silence their critics, and de-legitimize the opposition through collateral attacks. President Trump and the Republican-controlled Senate have overcome the Left’s frontal assaults to confirm two committed originalists on the Supreme Court. That Leonard Leo, formerly Executive Vice President of the Federalist Society, took a leave of absence from the organization to advise Trump on his Supreme Court appointments put a target on the group’s back. The draft ethics opinion—produced by a committee that includes the chairman of the ABA’s Appellate Judge Conference and a former plaintiffs’ lawyer from Rhode Island who contributed nearly $700,000 to Democratic candidates before being appointed to the district court by President Obama—is obvious pay-back for having been beaten on the merits.

If the draft opinion becomes final—and it is unlikely that it will—federal judges and their clerks will be forced to disassociate from the Federalist Society, something liberal activists apparently believe will reduce the prestige and influence of the group. What the Left doesn’t understand is that the power wielded by the Federalist Society consists of its timeless ideas—the legacy of the Framers, as signified by the group’s symbol, the silhouette of James Madison. Unless the partisan proponents of this ill-conceived campaign of retaliation are able to suppress The Federalist Papers and squelch debate (which is increasingly happening on college campuses nationwide), it is nothing but a mean-spirited cheap shot at a venerable group that has stymied the Left’s goal to control the nation’s legal discourse.

The Wall Street Journal warned that “The judiciary doesn’t need another a political black-eye, this time over rules issued by insiders and clearly aimed at restricting the right of association of students, lawyers and judges with originalist legal views.” That was the shot, followed a few days later with this chaser:

The political left wants to bar judges and clerks from Federalist Society ranks so that belonging to the group will become politically anathema. Democrats will wave the draft ethics rule, if it is adopted, as a bloody shirt against judicial nominees who have belonged to the Federalist Society.

All of this risks tarnishing the reputation of the judiciary as even-handed and nonpartisan. Chief Justice John Roberts, who ultimately supervises the Judicial Conference, should tell the Codes of Conduct Committee to stop this dirty political business.

Chief Justice Roberts, understandably preoccupied at the moment, will soon confront another controversy.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on January 29, 2020 at 06:35:17 am

Considering that public school teachers and professors are prevented from being members of public-employee unions because those unions "advocates political causes, engages in lobbying, files amicus briefs, and adopts resolutions on a broad range of public policy topics", I see no reason why judges shouldn't also be prevented from being members of unions or organizations that do the same.

If you found out a judge was a member of the NAACP, would you really want them deciding what the 1965 Civil Rights Act meant or would you want an impartial judge who neither valued or disvalued political equality?

I think we all believe true impartiality means not having ethical or political values of any kind just like normal voters. Only when people hold no values, like Germans, does the majority get the society they want and deserve.

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Martina Luthia Queen
on January 29, 2020 at 07:17:44 am

So-called "progressives" used to fight with ideas, but now they always turn to coercion. Power certainly does corrupt.

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George Leef
on January 29, 2020 at 12:58:50 pm

Public school teachers and professors at public universities are not prevented from being members of public employee unions. The recent Supreme Court decision simply held that a public employee who chooses not to be a member of a union cannot be required to pay a fee to the union for the work that the union does on behalf -- or, as the union sees it, on behalf -- of the non-member. The Court held that bargaining over public employee salaries, job security, etc. involves political issues, and that a non-member cannot be required to subsidize a union's advocacy on such issues. Whether the law allows members of state or local public employee unions to strike without losing their jobs is also a different question; the answer to that question will depend on the law of the particular state. In the case of federal employee unions, it will depend on federal law: remember the PATCO strike.

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Mark Scarberry
on January 29, 2020 at 14:03:41 pm

Mr Scarberry:

I took the Queen's comments to be satire as evidenced by "Only when people hold no values, like Germans, does the majority get the society they want and deserve".
Then again, it could have been nothing more than a profound historical ignorance as in the comment that professors and public school teachers may not be members of a union. Gee, it must have been the students that were striking for more wages outside my local schools!

No this had to be satire!

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Guttenburgs Press and Brewery
on January 29, 2020 at 14:43:16 pm

I am continually astonished by the Looking-glass world portrayed in conservative circles. I do not recognize it. Rather I see the Federalist Society as exercising great influence on my campus and in the political world, and doing so largely though the power of money rather than the power of ideas. Events are not open, questioning and debate appear to be precluded, and absurd assumptions about "liberals" and "the left" abound. The wealth of this and like institutions is great. I know of no left equivalent. (I should perhaps note that I am considered not only liberal but left.) I was once invited to a Federalist event, where I was asked to debate Guy Benson on (if I recall) free speech and civility issues) . I said I would be happy to talk with him, but that I saw no significant differences in our views on these points. We had a civil and interesting conversation and though we had differences we had many more points of agreement. I would be happy to have more such conversations with conservatives. However, conservatives on campus rarely open their events in my experience and hence I am denied.

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Anne Norton
on January 29, 2020 at 17:49:55 pm

"...hence I am denied."

Well you are keeping good company with all the conservative speakers who have been denied or attacked or shouted off the stage.

And as for their being no "monied" equivalent of the Federalist society may I refer you to The Soros Foundation, the Ford or Rockefeller foundations and a host of other monied non-profit groups that exercise considerable sway over public opinion and sentiment.

My own experience indicates that what you experienced at a Federalist event is quite common - indeed it appears to be the norm.

"However, conservatives on campus rarely open their events in my experience and hence I am denied."

Perhaps a slight editorial edit may illumine the situation.

"However, conservatives on campus rarely open their [mouths on campus] in my experience and hence I am denied [the benefit of a competing view].

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Guttenburgs Press and Brewery
on January 30, 2020 at 07:37:40 am

Once again I find myself in a world I don’t recognize. Ford, Rockefeller and Soros are regarded by the left as centrist, liberal or neoliberal, not left. On the contrary they are not receptive to scholarship on the left. They don’t (to my knowledge) offer closed events on any campus I’ve served. Collegium, the Jack Miller Center, the Federalist Society, Witherspoon (and many more) do. I have had many conservative students over the years, have recommended them to AEI, the Miller Center, IHS, Republican congressmen and administrations, and yes Ford and Rockefeller successfully. They speak often in class and (open) workshops. If yours are afraid to speak then I must ask if the term “snowflake” is properly employed. Have they no courage? One of my left students challenged a professor and a lecture room of over a hundred chanting students. He was brave. My views here are not popular and have been controversial at all of my campuses yet I would scorn to use a pseudonym in this context. (I rather like yours though and would happily have a beer in Gutenberg’s Press and Brewery).were there such a place.

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Anne Norton
on February 01, 2020 at 12:20:59 pm

[…] 6. At Law & Liberty, Mark Pulliam slams the effort by a scrum of federal judges to suppress The Federalist Society. From the beginning of the piece: […]

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Chump Change It Ain’t - Non Perele
on March 05, 2020 at 07:53:04 am

[…] against originalism, has circulated a draft opinion (discussed in more detail here by Ed Whelan and here by Mark Pulliam) suggesting that judges cannot be members of the Federalist Society because it may call their […]

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The Empire Strikes Back Against Originalism

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.