Are You Now Or Have You Ever Been A Member Of The Federalist Society?

The Judicial Conference Doesn't Want Judges to Be Members.

|The Volokh Conspiracy |

The Wall Street Journal reports that the Judicial Conference is thinking of prohibiting judges from being members of the Federalist Society. It's too political—or so the Judicial Conference believes.

If the Judicial Conference does ban judges from being members of the Federalist Society, it will need to do the same for the ABA. Unlike the Federalist Society, which takes no stand on any legal or political issue, the ABA weighs in on countless issues, always taking the leftward leaning side of things. The ABA files amicus curiae briefs before the Supreme Court, again with a consistent slant to the left. The long march through the institutions infiltrated the ABA long ago.

Similarly, membership in "affinity bar associations" like the National Hispanic Bar Association and the National Bar Association (which is for African American lawyers), and the National Association of Women Lawyers will need to be prohibited. Those left-leaning organizations routinely take stands on controversial issues and file amicus briefs. The Federalist Society never does and never will.

I can't tell you how proud I am to be a member of the Federalist Society. It's true that its members are overwhelmingly conservative or libertarian. But to say that it is not monolithic understates it. Lawyers actually engage in civil debate at the Federalist Society. It always attempts to present all sides of legal and public policy debates at its functions (including different strands of conservatism and libertarianism as well as left-of-center views). That does not happen at law schools these days.There is far less ideological diversity on campuses than you routinely find at the Federal Society's Annual Lawyers Conference.

Two personal anecdotes are worth mentioning here.

(1) In 1996, I co-chaired the Yes on Proposition 209 Campaign here in California. That measure, which passed with a strong majority, prohibited the State of California (including its universities) from discriminating against or granting preferential treatment to any individual or group based or race, color, sex or ethnicity in the operation of public education, public employment or public contacting. Needless to say, the Left hated it.

At the Annual Meeting of the Association of American Law Schools in January of 1997, a panel with OVER TWENTY speakers was presented. All of them opposed Proposition 209. Despite being both a law professor present at the conference and the second ranking person in the 209 campaign, I was not invited to speak. (That's okay.  I'm not exactly Cicero, so maybe the AALS didn't think I was a good enough speaker.) But there were at least three other law professors who had worked on the campaign who were also ignored

Meanwhile, the Federalist Society put on its own Proposition 209 panel at a nearby hotel to which all law professors were invited. If I remember correctly, the panel had five speakers. Three of them opposed Proposition 209 and two supported it (including me). Yet the Federalist Society is the organization that that Judicial Conference thinks is too political.

(2)  A few years later, I was on a panel at the Federalist Society's Annual Lawyers' Convention. The topic was again affirmative action.  The staff had worked to get speakers on both sides of the issue.  But for some reason the left-of-center speaker did not show up.  Much to the Federalist Society's embarrassment, all it had was an empty chair.  To remedy the problem, after I and the other panelists had given our prepared remarks, I stood up again and argued the other side of the issue the best I could.  (I'm a lawyer.  That's what lawyers are supposed to be able to do.)  The Federalist crowd really appreciate sit.  I was later told that I was persuasive to at least one member of the audience.

The Judicial Conference tries to sound evenhanded by putting the American Constitutional Society in the same category as the Federalist Society. I should point out that the American Constitutional Society is (so far) a pale imitation of what the Left imagines the Federalist Society to be. It has far fewer active members and (weirdly) is far more political than the Federalist Society.  But membership in the ACS shouldn't be prohibited either—not unless membership in organizations like the ABA are prohibited too.

The Judicial Conference can argue that it isn't preventing judges from being members of the Federalist Society prior to becoming judges. Nor is it preventing judges from attending Federalist Society events. But invariably a prohibition on membership will be taken as a sign that the Federalist Society is something bad … something that lawyers with a judicial temperament will avoid.  The truth is more like the opposite. Lawyers who are interested in hearing all sides of an issue gravitate towards the Federalist Society, not away from it.   The Judicial Conference should be pleased to have judges who are members.

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  1. Were you proud to be a Republican, too?

    Or were you one of the Republicans who disclaimed party membership to cheat the statutory system with respect to the civil rights commission?

    Or, in your mind, is there no incongruity there?

    Would you disclaim Federalist Society membership for another federal appointment that could position you to advance vestigial intolerance, stale white positions, and general backwardness?

    1. Holy mackerel. I agree with Rev Kirkland for the first time.

      Voter registration in a political party is much more political than membership in FedSoc.

      1. That’s as may be, but there’s no basis for declaring having political opinions or allegiances an ethical violation. While making one political affiliation a violation and the opposing not is just transparently political itself.

        It looks to me like the Judicial Conference is due for a thorough housecleaning. Mind, it’s not alone in that.

        1. The housecleaning appears to be approaching, Mr. Bellmore, but I doubt you will enjoy it.

          1. Are you one of the Bernie Bros advocating Gulags to re-educate billionaires and deplorables?

            I’m not sure there is any other way to interpret that.

            1. I am describing the predictable, continuing course of the American culture war.

              We have experienced a half-century of progress arranged against the wishes and efforts of conservatives. This is in line with America’s handling of successive waves of intolerance and ignorance that targeting large groups of people: The bigots don’t win in America, not over time.

              Looking forward, America’s electorate is becoming less hospitable to Republican campaigns (more diverse, less bigoted, less rural, less religion, less backward). In my lifetime, bigotry has gone from open, casual, and common to guarded, hiding behind euphemisms, with today’s young people especially resistant to intolerance. Science and reason continue to overtake superstition and dogma. The backwaters are emptying and decaying. Modern, educated, accomplished communities offer little hope for Republicans.

              At the tactical level, Democrats may expand the House of Representatives (with it, the Electoral College) and enlarge the Supreme Court. I also expect more aggressive moves against gun nuttery, anti-abortion absolutism, and the like.

              More progress in America and continuing victory by better Americans in the culture war. That is my meaning.

              1. You are describing nothing more than your own intolerance, bigotry and small-mindedness. Progress is being made in America despite people like you, not because of you.

                Sadly, I do not believe the “culture wars” will ever end. Bigots like you will always be with us. I only hope the pendulum continues to swing away from your view of righteous absolutism. Thankfully, RAK, your continued posts outing yourself as the most intolerant person in these discussion threads helps that at least a little bit.

        2. I get the feeling that some lawyers would like a house cleaning to remove all non-Democratic party judges from the bench, including the Supreme Court. Boy, that would be convenient. Just wait till the next time there is a Dem president, then the Judicial Conference could take action against all judges and justices nominated by a Republican president and/or confirmed by a GOP majority Senate.

          1. Not me. I worked for a Republican judge (retention vote) a few months ago. On the bench for some time, ashamed of what has become of the party since the advent of Trump. More of an old school Republican, from when that party promoted reason, tolerance, science, competence, modernity, education, limited government, and the like.

            1. I too yearn for the days of those genderneutral bathroom promoting gay marriage loving Republicans of the 50s and 60s.

              1. Nah, you strike me as a fan of the modern — science-disdaining, bigoted, tariff-embracing, drug-warring, reason-rejecting, even more bigoted, clinic-micromanaging, ignorance-celebrating — Republican Party.

                1. Get back to me with “science” when you figure out that sex is binary, outside of an extremely small minority.

            2. I will just have to settle for making the world better by helping one person at a time. I love making people’s problems go away.
              I remember having drinks with a member of Barbara Boxer’s staff in DC and talking about how we could approach problems from different angles and work together.

        3. there’s no basis for declaring having political opinions or allegiances an ethical violation.

          Of course not, but I suggest you look into the circumstances of Ms. Heriot’s appointment to the Civil Rights Commission to learn what Arthur’s point is.

          1. The ‘white male right-wing blog’ comments must have stung the Conspirators enough to drive them to dive low enough on the character scale for this one.

          2. Well how about Bernie Sanders, he claims he isn’t a Democrat, except every 4 years when he runs for President, is he being unethical claiming not to be a Democrat when running for Senate. Or Senator Angus King?

            How about Bill Weld? He’s claiming to be a Republican again, but he may switch back to Libertarian or even Independent before the election. His last elective office was as Republican Governor of Massachusetts, but resigned when Bill Clinton nominated him as ambassador to Mexico. If he changed his registration to independent and was nominated to the Civil Rights commission would you denounce him as a Republican plant?

            1. If Bernie Sanders pursued a spot statutorily designated for Republicans on a federal commission, claiming ‘I am an independent and not a Democrat,’ that would establish him to be a deplorable jerk with whom reputable, decent people would be disinclined to associate.

              Right, Conspirators?

              1. At this point, establishing Sanders as someone who reputable, decent people shouldn’t associate is redundant.

                But setting that aside, the seats are not statutorily designated as Republican and Democratic seats. Rather, the law states that no more than three members may be of the same party.

                I’d have little problem with Sanders saying, “I’m not a Democrat, I’m a commie!”, the problem with the FEC is its subject matter, not who’s running it.

              2. Setting aside that you screwed up your hypothetical (an independent can’t pursue a spot designated for Republicans), and that’s not how the USCCR is structured, the answer is that no, you’re wrong. Sanders isn’t a Democrat; he’s an independent. So why shouldn’t he take a spot appropriate for independents?

                Independent doesn’t mean “Has no political views or ideology.” It means “not a member of another party.”

      2. Kirkland is a troll. Like all trolls, he wants to make every thread about him. Do not feed the trolls. (And yes, I recognize the irony.)

  2. It looks to me as though the goal here may be to provide some pretext for people to start filing complaints against judges which could then be leveraged into action against those judges.

    1. I have seen that elsewhere in the blogosphere, that the left is working towards impeaching judges to keep the judiciary in check, now that their roughly 50 year lock on it is now gone.

  3. If active Judges are prohibited from belonging to the Federalist Society, might not pre-appointment membership be leveraged into disqualification from appointment?

    I know some on the left already believe that.

    1. Yes, membership in the Catholic Church to start with.

      1. People should be free to associate with organizations that engage in the systematic concealment and facilitation of sexual abuse of minors, freeloading at the expense of taxpayers along the way.

        That an organization is bigoted doesn’t influence that point.

        1. Yes, many people work for the Chicago Public School system?

          https://www.chicagotribune.com/news/breaking/ct-met-chicago-schools-sexual-abuse-report-20180816-story.html

          While bad, the abuse in the Catholic Church, which happened because ironically, they weren’t bigoted enough, is no worse than any other large organization in this country that deals with kids.

          1. You’re a fine apologist for the immoral jerks who lead the Catholic Church, mad_kalak. Can’t-keep-up, obsolete clingers huddled for warmth against all of this damned progress, reason, tolerance, science, and modernity.

            1. Oh no, I am not an apologist AT ALL. I hope every single one of them faces punishment. Years in prison for every abuser and years for those that covered it up, on top of the untold millions already paid out, which isn’t enough.

              That said, sexual abuse of minor is rampant in many institutions, and the Catholic Church gets singled out for extra abuse (all deserved btw) because of anti-catholic bigotry, pro-government bias, and a desire to diminish the church’s role in modern life.

          2. Yeah, no.

            As we’ve seen, over and over again, in schools, churches (Catholic or otherwise), the Boy Scouts, and so-on, is that men abuse.

            The difference is, in most of those cases the abuse, when discovered, is handed over to the police.

            Churches (and the Boy Scouts) are weird outliers in that more often then not they chose to cover-up and hide in an effort to protect the church’s (and Boy Scouts’) reputation, rather then let the justice system do it’s work.

            The Catholic Church (and Boy Scouts) got hit so hard by this, compared to other churches, not because their abuse was worse or more common, but because as larger organizations they were more effectively able to employ cover-ups and protect their reputation for a longer period of time.

            Bigotry (or the lack thereof) is not the problem. Prioritizing reputation and pride over justice is the problem.

            1. I agree that the size of the Catholic Church allowed for all the shuffling and payouts, as opposed to a random Baptist church somewhere.

              And you’re only half right about the issue being men. But the Church wasn’t selective enough on a single criteria for its priests about what type of men, specifically on a single trait, I might add.

              That said, about women abusers, I think you’ve missed the never ending flood of women statutory rapists in the news the past decade or so. That I think has been going on forever, but is just now getting the light of day.

              1. Less a “flood” and more a “steady trickle”. That said, most people do draw a moral distinction between statutory rape involving a teenager with a teacher†, and priests/rabbis/troop leaders/whatever and pre-pubescent kids.

                And don’t be so coy. C’mon, tell us what “type of men” is to blame.

                And then try to explain why the Southern Baptists, which are largely led by married men, still had comparable (when you adjust for size of denomination) problems.
                ________
                †The common woman-perpetrator example.

                1. Yes, in the Catholic Church, it’s not a woman problem, because there isn’t very many women. Therefore, abuse committed would be by men. As for what type of men, truth is a demure lady, but if you want a tryst, you have to but seek her out.

                  Trickle? Not so much. Story is at the link “….National Crime Victimization Survey (NCVS) data and found that 35 percent of male victims who experienced rape or sexual assault reported at least one female perpetrator. Among those who were raped or sexually assaulted by a woman, 58 percent of male victims and 41 percent of female victims reported that the incident involved a violent attack, meaning the female perpetrator hit, knocked down or otherwise attacked the victim, many of whom reported injuries.”

                2. “If the CDC figures are to be taken at face value, then we must also conclude that, far from being a product of patriarchal violence against women, ” rape culture ” is a two-way street, with plenty of female perpetrators and male victims.
                  How could that be? After all, very few men in the CDC study were classified as victims of rape: 1.7% in their lifetime, and too few for a reliable estimate in the past year. But these numbers refer only to men who have been forced into anal sex or made to perform oral sex on another male. Nearly 7% of men, however, reported that at some point in their lives, they were “made to penetrate” another person — usually in reference to vaginal intercourse, receiving oral sex, or performing oral sex on a woman. This was not classified as rape, but as “other sexual violence.” And now the real surprise: when asked about experiences in the last 12 months, men reported being “made to penetrate” — either by physical force or due to intoxication — at virtually the same rates as women reported rape (both 1.1% in 2010, and 1.7% and 1.6% respectively in 2011).

                  In short, men are raped by women at nearly the same rate women are raped by men.
                  According to a recent study from the University of Missouri, published by the American Psychological Association, male victims of sexual assault are often victimized by women: “A total of 43% of high school boys and young college men reported they had an unwanted sexual experience and of those, 95% said a female acquaintance was the aggressor, according to a study published online in the APA journal Psychology of Men and Masculinity.”

                  1. … why are you pivoting to rape in general?

                    While related, that doesn’t have much to do with why the Catholic Church suffers a bigger bad rap over it’s abuse scandals then other institutions.

                    1. To show that sex crimes are an equal opportunity problem of both sexes, by extension we should expect the same thing when it comes to sex abuse of youth. And also, that data is under the streetlight and I don’t want to take the time to investigate which sex goes after youths more.

                    2. To show that sex crimes are an equal opportunity problem of both sexes […]

                      Which wasn’t contested.

                      […] by extension we should expect the same thing when it comes to sex abuse of youth.

                      You can expect whatever you want, but expectations aren’t pronounced “data”.

                      And also, that data is under the streetlight and I don’t want to take the time to investigate which sex goes after youths more.

                      Seriously?

                      You object to a claim, provide data against a claim that wasn’t made, then insist, after writing hundreds of words on an unrelated point, that you just don’t have the time to back up your actual point?

                    3. “You object to a claim, provide data against a claim that wasn’t made, then insist, after writing hundreds of words on an unrelated point, that you just don’t have the time to back up your actual point?”

                      That’s a mischaracterization. Let me help.

                      I made a claim that men *and* women sexually abuse children, after you said that abuse is a male problem. Then I provided ample evidence of statutory rape by female teachers, which you dismissed as trivial. Then I provided CDC and other reputable evidence that men and women are sexually assaulted at roughly the same rates by the opposite sex. Then you said I shifted talking points to rape not child abuse, and downplayed statutory rape by women as some sort of lesser offense. Further, you made a claim (without evidence) that Catholic sex abuse was pre-pubescent children when it was, by most reports, pederasty.

                      So what I admitted to, because I at the time I didn’t want to take the time to find data on it, was which sex (male or female) abuses children more (not rapes more). It should flow, naturally, that if rape rates are the same, that therefore abuse rates should be similar, but you don’t make that connection.

                      After looking into it, it’s actually fairly difficult to parse. Because abuse of children by women is more common than by men, varying by study, but of that subset of abuse that is sexual, varying by study, that is more men than women. This of course, you could have looked into yourself I suppose.

              2. How about abuse by the Communist Party in Russia, or China, or Cuba? But, mass murder is not a scandal, especially since the victims are no longer around to complain.

            2. Follow the link below for a search result on a popular blog that always posts those constantly appearing news stories under the “teach women not to rape” headline.

              https://pjmedia.com/instapundit/?s=%22teach+women+not+to+rape%22

            3. “men abuse”

              Wrong. Consider the legions of female school teachers who have sex with students. Consider how much goes unreported!

              Consider nuns. Yes, they abuse, too.

          3. While bad, the abuse in the Catholic Church, which happened because ironically, they weren’t bigoted enough, is no worse than any other large organization in this country that deals with kids.

            I don’t suppose you have any evidence to back that up.

            1. Did you click on the link about the Chicago Public School system that I already put up? The problem there was as bad, if not worse, than any random diocese.

              1. No. I didn’t.

                But so what?

                Pointing out that there exists another organization with as bad a record does zip to establish that all large organizations that deal with kids are just as bad.

                Even if your claim about the Chicago schools is true, all it establishes is that the Catholic Church does not have the absolute worst record of any organization. It might still be tied for it.

                1. Yes, it shows that you didn’t, even just to skim the first paragraph or two.

                  Thus you would know, it’s not “my claim” about the Chicago schools, it’s a massive investigation which was exposed by the Chicago Tribune. This, then would be evidence that the Catholic Church, while horrific, is no more or less horrific than lots of other organization that interacts with children. Don’t forget, most abuse happens in the family unconnected with any organization. But it’s hard to play “gotcha” with that. Hollywood is also full of abusers and rapists, but you have to blame individuals and not MGM or something.

                  Nevertheless, ask, and ye shall receive:
                  Newsweek: Priests Commit No More Abuse than other Males

                  1. “PRIESTS COMMIT NO MORE ABUSE THAN OTHER MALES”

                    Which sounds reassuring, but is actually quite alarming, considering the different sizes of the two categories. If you have (hypothetical numbers round for purposes of easy math) 10 priests commit 10 abuses each, and 100 non-priest males who commit one abuse each, then the priests commit no more abuse than other males.

                    Anyway, the real complaint wasn’t that priests were abusing people (though that’s certainly bad and should be avoided), the problem was the the Church covered up the abuse and moved the abusive priests to new parishes instead of saying “OMG! GTFO of our Church!” (Yes, Catholics, I know there are some good reasons for some of the things the Church did over the years regarding abusive priests. But those choices contributed to the ability of abusive priests to abuse again. God may forgive them for this, but a substantial portion of the general public will not.)

        2. But enough about the DNC.

    2. Well, we already have a situation where not being a member is disqualifying.

      I suppose turnabout is fair play.

      1. Where is not being a member disqualifying?

        1. These days, not being a member of the Federalist Society means you will not be appointed to the federal judiciary, since Trump has apparently handed over the appointment power to Leonard Leo.

          1. And no black women need ever apply.

  4. “Judicial Conference” = “Any organization not explicitly right-wing sooner or later becomes left-wing.”

    Trump gets re-elected, the left wing “Judicial Conference” is going to act very differently.

    1. The Chief Justice of the United States is the presiding officer of the Judicial Conference. Membership is comprised of the chief judge of each judicial circuit, the Chief Judge of the Court of International Trade, and a district judge from each regional judicial circuit.

      A circuit chief judge’s term on the Conference is concurrent with his or her term as chief judge of the circuit. Section 45 of title 28, United States Code, provides that, with limited exceptions, the chief judge of a circuit may serve for seven years or until attaining the age of seventy years, whichever comes first. Similar provisions apply to the Chief Judge of the Court of International Trade. See U.S.C. 258.

      District judge representatives are elected for terms of not less than three nor more than five successive years, as established by majority vote of all circuit and district judges of the circuit (28 U.S.C. § 331). By Conference policy, terms are effective and expire on October 1 of any given year.

      With Trump’s nominations, more and more of the members are probably going to be conservative going forward. But it’s going to be a very slow transition, because most of the members of the commission are Chief judges, the most senior of the lot.

      1. Chief judge is elected by the other judges, Garland for instance is only 4th senior out of 11.

        So its going to depend on when terms expire too, not just seniority.

        1. But they have to be senior judges to begin with, unless none of the judges in the district have enough seniority to qualify as such.

          So very few of Trump’s nominees will qualify by the time his second term is up. This effort is going to have to be somehow quashed without much altering the composition of the Conference, unfortunately.

        2. Chief judge is elected by the other judges, Garland for instance is only 4th senior out of 11.

          While that’s how it works in many state courts (and arguably would be a more sensible system), chief judges of federal circuit and district courts are not elected: when the position becomes vacant, the senior judge who is under 64 and who has never been the chief judge is appointed to a 7 year term. 28 U.S.C. §§ 45 and 136.

  5. I don’t really see how membership in an organization that promotes fake history is useful to judges who just want to enforce the rule of law.

    1. See that? That’s bait.

      1. One of S’s hallmarks.

  6. Arguing that the Federalist society is apolitical is a laugh.
    Especially after how well received Barr’s hateful partisan speech was.

    That being said, I tend to think people can generally put their politics aside when called to, so this broad brush is pretty bad.

    1. I think the argument was that it’s less political than a long list of organizations the Judicial Conference isn’t contemplating making a mark of shame.

      You know, like the ABA?

      1. And I think given recent event that is not true.

        1. No, the ABA has no trouble staying in the lead.

          1. “And I think given recent event that is not true.”

            So… federalist society members applauding a partisan speech trumps the ABA and other organizations submitting partisan amicus briefs?

            1. “Trumps” is mis-used in your comment.

    2. “Barr’s hateful partisan speech”

      Cry more lib.

      Truth hurts, don’t it.

      1. Enjoy your separatist organizations, Bob, while the American mainstream continues to marginalize clingers.

        There just aren’t enough poorly educated bigots and superstitious rubes left in America to keep your conservative electoral coalition going, and the population continues to improve against you, especially in the modern, accomplished, educated communities.

        The problem of a last-gasp lurch like voting for Trump is what happens after that last gasp is completed.

        Thank goodness for the culture war.

      2. Do you like seeing people cry and be hurt? If you base your political philosophy around that, you might have a problem.

        1. His political philosophy is victory at any cost. So no worries, because that always ends well.

          1. His political philosophy may be ‘victory at any cost,’ but his political reality is getting stomped in the culture war by better Americans.

    3. That being said, I tend to think people can generally put their politics aside when called to, so this broad brush is pretty bad.

      Based on how much Democrats and Republicans fight over judge nominations these days, I don’t think your belief is a prevalent one.

      1. If you pick judges solely from people who have a “judicial temperament”, then you’ll get largely apolitical judges, because a big part of “judicial temperament” is willingness to set aside personal preferences in rendering judgment. But if you lose too many lawsuits because of picking the wrong side, you start to wish the judge was biased in your favor, and the notion of picking judges based on sharing your beliefs AND being willing to overlook things like precedent that didn’t go your way starts to catch on. That’s the mode the Republicans are in now.

        Ideally, you’d have a system that weeded out the people with strong ideologies either way, and pick from centrists with judicial temperament. We do not presently have that ideal. Unfortunately, it only takes one side deciding not to follow that plan to keep either side from following that plan. Cue partisans whining that the offenders are “the other guys”.

    4. That being said, I tend to think people can generally put their politics aside when called to, so this broad brush is pretty bad.

      Government legitimacy relies on the perception that those who exercise legal authority transcend personal bias. But the reality is some are more able and/or try harder than others, so your “generally” is doing a lot of work.

      In normal times I’d say “generally” is good enough, but these times aren’t normal. Confidence in institutions needs all the help it can get. For the judiciary that may mean shedding previously innocuous trappings of bias. The OP makes some fair points, so I’m not saying the Judicial Conference approach is necessarily optimal, but I think the underlying objective is worthwhile.

      1. “For the judiciary that may mean shedding previously innocuous trappings of bias. ”

        Yeah, but this looks more like institutionalizing bias, unless they add a LOT of organizations to the verboten list.

        Which I’d object to, because nothing about judicial ethics requires you to not have political opinions or affiliations. Rather, you’re required to do something more difficult than avoiding any revealing memberships: Judge on the merits despite your views!

        1. Yeah, but this looks more like institutionalizing bias, unless they add a LOT of organizations to the verboten list.

          Depends how one defines “political.” There’s a principled basis to single out the Federalists and American Constitutional Society, which exist for their ideology, as opposed to groups like the ABA which, while politically active, have an unrelated central purpose. That said, as long as perceptions of bias are so inflamed, may as well be overinclusive about which orgs judges should avoid.

          Judge on the merits despite your views

          As Sarcastro said, that’s what most of them already do. This is about perception and public confidence, not actual behavior.

    5. The Feds gave us Kyle Duncan. I’m not in the mood to be civil to such people.

    6. Oh, and the Feds gave the inveterate racist tool Jeff Sessions a standing effing ovation like he was Tucker Carlson or Ben Shapiro. Forgot about that charming little episode.

    7. It’s idealogical, but not necessarily partisan, there is a difference.

      But in any case Gail is right, any objective standard that would bar membership in the Federalist society would also ban membership in the ABA.

      Of course there would be one easy way for the Federalist Society to void any such rule. Just declare themselves a religious organization, with the Constitution it’s sacred text. Then any such regulation would violate the no religious test clause of the Constitution.

  7. The ABA is a great example of Conquest’s 2nd law in action. Most ostensibly neutral civil society institutions now have a clear and obvious tilt in one direction. Their ideological field of vision becomes the norm and dissenters are labeled unacceptable and unprofessional. But they still maintain the facade of neutrality and gaslight anyone who calls out their clear agenda

    1. In other words, as America’s liberal-libertarian mainstream progresses and leaves right-wingers behind, the right-wingers dislike societal institutions because they reject the marginalized positions. So the disaffected citizens develop separatist facsimiles and become even less relevant to the mainstream and progress.

      Enjoy the culture war, everyone! May the better ideas win and the bigots be sad.

  8. I also dont understand how membership in ethnocentric groups like La Raza (“por la Raza todo, fuera de la raza nada”) could be considered appropriate if the Fedsoc—and the American Consitution Society if the Judicial Conference actually cared about consistency—is out of bounds.
    Membership in groups which strive for ethnic solidarity and the attainment of policy objectives they perceive to benefit said group seem like farmore conspicious red flags of impartiality than does membership partisan groups.

    1. *Lack of impartiality

  9. I don’t think the conference should bar membership in the Federalist Society. But this attempt to pretend the Federalist Society is somehow just an apolitical open-minded debating society with merely a hint of partisan lean is ridiculous. Of course it is very in line with Federalist Society philosophy to elevate form over function. Sure, it doesn’t formally take “stances” in amicus briefs or policy papers, but that doesn’t mean its political leanings as a group are imagined.

    It’s not a coincidence that the speakers at the last convention were Justices Kavanaugh and Gorsuch, Professor Phillip Hamburger, and Attorney General Barr. It’s also not a coincidence Barr received a standing ovation for saying, “it is the left that is engaged in the systemic shredding of norms and undermining the rule of law.” Nor is it a coincidence that Leonard Leo described himself as “a leader of the conservative legal movement.”

    The left isn’t imagining things about the Federalist Society. It’s simply using deductive reasoning.

    For members like Heriot, she is merely engaged in the longstanding human practice of insisting on political independence when you still think and vote as a partisan. Political Science has demonstrated that self-described independents who claim to merely “lean” towards a party or ideology (as I think even Federalist Society members should admit) are every bit as partisan as the self-described partisans are. Proclaiming independence is merely a socially desirable response. Political science has seen through it, it’s time for the educated members to gain some introspection, dispense with the pretense, and admit to what is obvious to everyone else.

    1. Mentioning ‘independent,’ ‘Gail Heriot,’ and ‘pretense’ together could be seen as kicking someone when she is down.

      Did the Volokh Conspiracy ever have the courage to declare whether it approved her disingenuous switch from Republican convention delegate to ostensible non-Republican “independent” to evade statutory eligibility standards with respect to the civil rights commission? I have observed no reason to expect the Conspiracy to possess enough character to do so, but perhaps I underestimate movement conservative law professors.

      1. Mentioning ‘independent,’ ‘David Post,’ and ‘pretense’ together could be seen as kicking someone when he is down.

        1. Mentioning ‘independent,’ ‘Keith Whittington,’ and ‘pretense’ together could be seen as kicking someone when he is down.

          1. Mentioning ‘independent,’ ‘Ilya Somin,’ and ‘pretense’ together could be seen as kicking someone when he is down.

            1. Mentioning ‘independent,’ ‘Irina Manta,’ and ‘pretense’ together could be seen as kicking someone when she is down.

              1. C’mon mad_kalak, don’t hold back. Tell us how you really feel.

                1. I guess four Conspirators don’t meet mad_kalak’s clinger purity test. Too much modernity, tolerance, reason, libertarianism, or something.

                  The others must be so proud, though.

              2. Neither Post, nor Whittington, nor Somin, nor Manta, gets to decide who sits on the federal bench.

                So your comments are pointless.

                1. Thus, by extension was Rev’s, which is why I amplified his. But you didn’t get that, nor did he I suppose.

            2. You should give Somin a bit of a pass because his libertarianism doesn’t fit neatly into either party at the moment.

              1. Fair enough, thanks.

                1. Cheers!

    2. Law, you touched on something I agree with, I don’t think the conference should bar membership in the Federalist Society., but I have a different rationale. And I agree that Federalist Society members will have similar broad views, and quite probably judicial philosophies.

      My rationale is membership in any group no matter what type, will have some influence. As long as the memberships are publicly known at the time of nomination and confirmation, I don’t think it is a problem at all. Different people may have different motivations for opposing a future nominee based on their membership in a group (Federalist Society, etc). That is fine. To me, it is a transparency thing.

      1. I agree. Judges are political actors there’s no sense in denying it. And that’s okay. Politics is simply what we call the method for deciding society-wide disputes. With judges, the best you can do is let a culture of legal reasoning constrain them in individual cases. You don’t want injustice to prevail in individual cases for a “political” point. Nor do you want law to become unpredictable and completely based on partisan electoral political trends. But it is still political nonetheless.

  10. Just joined the Federalist Society after seeing this piece. I had been thinking about doing so, but this pushed me to do so.

    1. For every new person who joins the Federalist Society, I donate the cost for a late term abortion.

      1. But who do you donate it to?

        1. Lesbian SJWs, obviously. Friends and family mostly. Why? Do you want one? I’ll put you on the list, but if you really need one there are other resources. The ones I pay for usually get them just to own the cons.

      2. Abortion is wrong whether it is “early” or “late” term. Also, thought you might want to know: https://www.nationalreview.com/corner/reconsidering-fetal-pain/

      3. Your earlier pretense to be neutralish on this didn’t last long huh

        1. Right, because God knows you can’t be ambivalent about something if you make a joke about one side but not the other.

  11. This post is absurd. The Federalist Society is just a bunch of folks who like to get together and talk about legal matters.

    What a load. It is an organization of conservatives dedicated to making the judiciary as right-wing as possible, with little regard for qualifications.

    1. You ever been to one of their meetings or debates?

      1. In law school I went to a few Federalist Society events. There are two I remember:

        First was Michael Farris, Dean of Patrick Henry College. Spoke about home schooling. He had some interesting things to say. Most interesting was his idea much that non-discrimination law should flow from the 13th amendment. Which is kind of radical when you think about it.

        The Second was some tax policy guy arguing against the minimum wage. His idea was that everyone had equal bargaining power in every job. He was very wrong. Nonetheless, he also used the phrase “there’s no such thing as a free lunch.” The lunch the Federalist Society provided for that event was free that day. iIt did not even come out of my student activities fee. The Federalist Society is self funded. Perhaps In the wide scheme of things, it was not free. Subjectively, it was free to me.

        So anecdotally, and responsive to your question, I’ve been to a few, and yes it’s right wind.

        1. Ugh. Wing. Can’t believe I fucked that up.

        2. 99% of those who cite the “free lunch” proverb have never read the book.

          1. True, but TANSTAAFL doesn’t have much of a ring to it, and it should be taken as a success of the idea that it has spread so much. How many people, say, can say “judge by the content of character, not the color of the skin” but have never taken the time to watch the speech?

            1. Typically, one LISTENS to speeches, rather than WATCHING them.

      2. Nope. Not a lawyer. I’m confident the debates are fine, but they have little to do with the main work of the organization, which I described.

        The debates and meetings are a nice cover.

        1. The work of the organization, which does not file briefs like the others described? You think it’s more partisan than they are?

          1. The Federalist Society doesn’t file briefs much like Michael Corleone attended a baptism.

        2. It is awfully tricky of them to spend so much time, energy, and resources on cover and so little on their real agenda. Good thing you’re around to suss out what’s really going on.

          1. Building phony credibility is necessary to achieving their purposes. It’s part of the scam. It usually is.

      3. What difference would that make?

        No doubt the debates and meetings and whatnot are endlessly polite, and include some liberals. So what?

        My point is that those things are secondary to their political function, which is installing as many RWNJ’s as possible in the judiciary.

  12. So long as we’re going to go on having discrimination laws, political opinion, speech, and related organizational activities should be a protected category, at least when the entity doing the discriminating is governmental, and that includes semi-public bodies such as state bars.

    It might also make sense to extend the protections that labor organizers now receive to occupation-related clubs such as the ABA and AMA.

    1. “So long as we’re going to go on having discrimination laws, political opinion, speech, and related organizational activities should be a protected category”

      Nah, it shouldn’t. For example, a state bar should be allowed to disqualify people who advance the notion, for example, that because the flag in the courthouse rotunda has a fringe on it, that means that it is an admiralty court and thus has no jurisdiction on land. And whoever keeps telling those Sovereign Citizen nutjobs that they don’t need a driving license if they just say the magic words “I’m not driving, I’m traveling!” while they drive around, is ALSO not qualified to give legal advice.

  13. ” Those left-leaning organizations routinely take stands on controversial issues […] The Federalist Society never does and never will.”

    Respectfully, this is bullshit.

    https://fedsoc.org/about-us

    That said, I don’t think that membership is disqualifying for judicial appointments. The group is openly biased conservative, and people who are conservative are welcome to join associations of people who agree with conservative ideas, principles, and notions of proper governance. People who are in positions of appointing judges are also welcome to use membership in groups to shade their decisions about who is most-qualified for judicial appointment… some will favor FS members, and others disfavor.
    But people pretending that the FS is not politically biased are not to be taken seriously for even a femtosecond.

    1. It’s not even a femtosecond. We’re talking Planck time.

    2. Which controversial issues do you think the Federalist Society has taken a stand on? I certainly don’t see any articulated on the page you’re linking to.

      1. Come back when you’re better at reading for content, then, I guess? They come right out and express their stand on a few controversial issues when they describe who they are and what they want.

        1. This is the entire text on that page:

          Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society. While some members of the academic community have dissented from these views, by and large they are taught simultaneously with (and indeed as if they were) the law.
          The Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. The Society seeks both to promote an awareness of these principles and to further their application through its activities.
          This entails reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law. It also requires restoring the recognition of the importance of these norms among lawyers, judges, law students and professors. In working to achieve these goals, the Society has created a conservative and libertarian intellectual network that extends to all levels of the legal community.

          Can you quote one of the parts that you think takes a stand on a controversial issue?

          1. “Can you quote one of the parts that you think takes a stand on a controversial issue?”

            Sure.
            “Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society. While some members of the academic community have dissented from these views, by and large they are taught simultaneously with (and indeed as if they were) the law.
            The Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. The Society seeks both to promote an awareness of these principles and to further their application through its activities.
            This entails reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law. It also requires restoring the recognition of the importance of these norms among lawyers, judges, law students and professors. In working to achieve these goals, the Society has created a conservative and libertarian intellectual network that extends to all levels of the legal community.”

            Let me go WAY out on a limb here. You still don’t see it.

  14. One of the great achievements of our society during my lifetime is that our bigots no longer wish to be known as bigots. Instead, they hide behind euphemisms such as “traditional values” and “color-blind” and “family values.” And they join the Federalist Society.

    1. You’re the biggest bigot here. And you don’t even try to hide it.

      1. Contempt for ignorance and malevolence does not make one a bigot.

  15. When I was in law school the public face of the Federalist Society was Lewis F. Powell. Today they wouldn’t even let him in the door.

  16. I have been a member of the Federalist Society for over 30 years. I am a liberal and proud to claim both. What I have found is that there is more tolerance and intelligent discussion with members of Fed.Soc. on issues where we disagree (I am opposed to the death penalty and would like to see the Second Amendment repealed) than I can ever have with progressive organizations on areas where we disagree (abortion). As you can guess, for me, a pro-life thread runs through each. I am still shocked and disappointed that this is the case.

    1. At least in the law school environment, the FS is a minority, and their voice is muted because they KNOW they’re a minority. Would they stay the same if they were the majority? You may choose to believe so, but I don’t. Things can change rather quickly when a minority becomes a majority and gains power accordingly. See, for example, the difference between Christians in the middle east back when Jesus was running His church, and Christians in, say, Spain, around Inquisition times.

  17. “Unlike the Federalist Society, which takes no stand on any legal or political issue…”

    That might be the most hilarious thing I’ve ever read here. However, I do agree with you that it would be a ridiculous action by the Judicial Conference, if they actually did it, rather than just think about it.

    1. If right wing lawyers want to join a club to have cocktail parties, celebrate the latest neo-Nazi civil liberties hero and to suck up to – and lobby alongside – the US Chamber of Commerce I am perfectly fine with that.

      But they should do that with after-tax dollars.

      1. The Federalist Society is able to maintain its tax exempt status precisely because it doesn’t lobby for anything.

        If you have a counter-example, you’re welcome to provide it.

    2. Can you identify an occasion where the Federalist Society has taken an official stand on a legal or political issue?

      1. Is it “official” if they put on their own website that they didit?

  18. “Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society. While some members of the academic community have dissented from these views, by and large they are taught simultaneously with (and indeed as if they were) the law.”

    James Pollock are you seriously attempting to deny this is the case currently?

  19. I support the Federalist Society and my first reaction was to reject this proposed ruling since the bedrock goal of the Federalist Society is that “A written constitution fundamentally requires that we give effect to its original meaning,” and how can this be termed a political or partisan agenda even if it results in an outcome favored by those who do have a partisan agenda?

    However, it is inescapable that the Federalist Society is now associated in the mind of the general public with conservative political goals, and given that fact isn’t it true that that a judge’s membership in such an organization would tend to reflect on the judge’s impartiality in the same way as it would if the judge were a member of an organization that has an overtly partisan agenda?

    I can also see the point of the judges who drafted the opinion when they say that because the ABA’s turn to the left has been relatively recent in their long history and because of the much larger scope of their advocacy, membership is not yet associated in the mind of the general public with leftist causes, and so membership in the ABA by a judge, especially membership in the judicial division, does not suggest impartiality.

    Since judges can continue to attend and speak at Federalist Society events I don’t see how this ruling would make any practical difference. In fact, I would be surprised if any judges don’t already drop their membership upon becoming a judge. What would be the reason not to? Of course, the goal of the leftists is to scare law students and future judges from any connection to the Federalist Society whatsoever, including attending events, but that will be difficult at least while respected liberals such as Nadine Strossen continue to agree to speak at these events.

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