Over 200 federal judges write in opposition to Advisory Opinion 117

The effort was spearheaded by Judges Katsas, Oldham, Pryor, and Thapar.

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Earlier this year, the Judicial Conference's Code of Conduct Committee released an exposure draft of Advisory Opinion 117, titled "Judges' Involvement With the American Constitution Society, the Federalist Society, and the American Bar Association." In short, the opinion concluded that federal judges could remain members of the American Bar Association, but could not be members of the Federalist Society or the American Constitution. Judges could still speak at FedSoc or ACS events.

This draft created a huge stir in conservative legal circles. The WSJ Editorial Board attacked the draft in January. At the time, I abstained from writing about it; federal judges would be given an opportunity to comment, and outside commentary may prove to be counterproductive.

The New York Times and the Wall Street Journal have now published a letter signed by over two-hundred federal judges. This effort was spearheaded by the first four signatories: Judge Katsas (CADC), Judge Oldham (CA5), Judge Pryor (CA11), and Judge Thapar (CA6). By my count, there are more than 200-signatories, including appointees from Presidents Ford, Carter, Reagan, Bush, Clinton, Bush, Obama, and Trump.

The letter raises five primary arguments:

We write to express our deep concern with the exposure draft of Advisory Opinion No. 117, recently issued by the Judicial Conference's Code of Conduct Committee. We believe [1] the exposure draft conflicts with the Code of Conduct, [2] misunderstands the Federalist Society, [3] applies a double standard, and [4] leads to troubling consequences. [5] The circumstances surrounding the issuance of the exposure draft also raise serious questions about the Committee's internal procedures and transparency. We strongly urge the Committee to withdraw the exposure draft.

First, the judges write that the draft conflicts with the Code of Conduct–that is, it represents a departure from well-established judicial practice:

Membership in the Federalist Society is wholly consistent with the Code. Until recently, the Committee agreed. It previously recognized that members of the judiciary may join the American Constitution Society and donate to the Federalist Society.3 Given these prior opinions and the text of the Code, we are disturbed by the draft's new position that membership in the Federalist Society violates the Code.

Second, the draft grossly mischaracterizes the nature of FedSoc:

All of these arguments rest on a flawed understanding of the Federalist Society and of the Code itself. Take the claim that the Federalist Society advocates particular policies, rather than the general improvement of the law. The draft fails to identify a single "policy position" taken by the Federalist Society. That is because—to the best of our collective knowledge—the Federalist Society has never, in its several decades of existence, lobbied a policymaking body, filed an amicus brief, or otherwise advocated any policy change. We are at a loss to understand how membership can be seen as "indirect advocacy"7 of the organization's policy positions when the organization itself takes no policy positions.

Moreover, the American Law Institute routinely advocates for changes in the law.

Moreover, the Committee has previously approved judicial membership in organizations that advocate far more specific legal positions. For example, it has blessed membership in the American Law Institute,9 which seeks to "clarify, modernize, and otherwise improve the law."10 The Institute pursues this goal by publishing restatements and model codes, which advocate detailed changes to all aspects of the law. The Federalist Society's approach to reform is comparatively mild. Instead of taking specific legal or policy positions, it facilitates open, informed, and robust debate.

The letter rightfully observes that FedSoc events have more ideological diversity than "many" (I would add, "virtually all") law school faculties:

Indeed, anyone who attends a Federalist Society event will encounter a diversity of views far exceeding that of many law school faculties. Although not all of us are members of the Federalist Society, all of us who have attended its events can attest to this. As the New York Times has reported, Federalist Society events "scrupulously include liberals as well as conservatives."11 Every current member of the Supreme Court has participated in at least one Federalist Society event, as have hundreds of current and former federal judges of all judicial philosophies. So have countless progressive scholars and attorneys, including Jack Balkin, William Eskridge, Michael Gerhardt, Heather Gerken, Neal Katyal, Reva Siegel, Geoffrey Stone, Nadine Strossen, and Laurence Tribe.12 Judicial membership in such organizations should be encouraged, not banned.

The judges also point out the obvious "double standard." The ABA engages in overt political activity.

For some time now, the ABA has taken "public and generally liberal positions on all sorts of divisive issues."15 What's more, the ABA does so by directly advocating for particular outcomes in particular cases.16 Not long ago, the ABA submitted an amicus brief in a pending Supreme Court case related to abortion.17 The ABA also filed amicus briefs in other contentious cases like Masterpiece Cakeshop18 and Trump v. Hawaii.19 And before that, the ABA weighed in on cases involving gender identity,20 affirmative action,21 same-sex marriage,22 and the Second Amendment.23 In fact, over the last decade, the ABA has filed more than 100 amicus briefs in many of our nation's most charged cases.24 The Federalist Society has not filed even one. Likewise, the ABA routinely lobbies Congress,25 while the Federalist Society does nothing of the sort

How does the Committee distinguish the ABA from FedSoc?

Despite the ABA's open political advocacy, and its support for specific outcomes in pending cases, the Committee has blessed judicial membership in the ABA while banning judicial membership in the Federalist Society. The explanation for this differential treatment? The Committee says that the Federalist Society and the American Constitution Society are different because "[a] reasonable and informed public would view judges holding membership in these organizations to hold, advocate, and serve liberal or conservative interests."

This rationale would apply equally to the ABA.

But it is strikingly inconsistent to prohibit membership in the Federalist Society because the public might view it as conservative, while blessing membership in the ABA because the ABA considers itself non-partisan. To make matters worse, this double standard rests on a critically flawed factual premise, for it is simply not true that the Federalist Society takes legal or policy positions.

Finally, the judges address certain "procedural questions."

Finally, the issuance of this exposure draft raises several procedural questions. Since its inception, the federal judiciary has insisted that each judge on a collegial body may state his or her individual views on the question presented. Yet reports suggest that no member of the Committee was permitted to dissent, despite some members' strong disagreement with the exposure draft. Other reports suggest that at least one member of the Committee was barred from voting on the draft. And the Committee's reversal of its prior, settled interpretation— without any relevant change in the Code—raises further concerns.

One member of the committee publicly commented on the proposal. (You can see the list of members here.)

The judges raises additional questions about the process:

We cannot know what has gone on behind closed doors, so we take no position on the propriety of what has or has not occurred within the Committee. But we do believe that the Committee's procedures raise pressing questions. If the Committee adheres to its opinion, we think that it is obligated to address the following issues:

 Was the Committee unanimous in its support of this policy? If not, how many members dissented, and what were their reasons?

 Were members of the Committee allowed to note and explain their dissents? If not, why not? Does any regulation of the Judicial Conference authorize the suppression of dissent?

 Are any members of the Committee also members of the ABA? If so, did these members recuse themselves from working and voting on the exposure draft?

 What specific circumstances justify the Committee's overruling of its prior, settled position that the Code permitted judicial membership in the ACS?

All questions that should be answered.

The WSJ editorial closed with this line:

Chief Justice John Roberts is the official head of the Judicial Conference, and he should call Judge Erickson and tell him to kill this draft forthwith.

Agreed. Roberts should flush this out quietly and discretely, the way it ought to be. No more public leaks.

NEXT: DoD vs. FCC

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  1. 1st!

    Seriously though, as the left’s hold on the judicial branch, and its ability to impose social change that is non-majoritarian through the Courts is waning, this is the result. If Trump is re-elected, the left’s ability to impose counter-majoritarian social change through the courts will be gone for a generation at least.

    1. Yes. Now it will be the rights turn to impose counter-majoritarian social change.

      1. This country’s government has already been fundamentally transformed, largely in the early 20th century. What we have now is a Government by Judiciary, and by bureaucrats.

        Instead of furthering the use of these bastardized structures to impose social change, what needs to happen is that this power to impose social change must be ended. Frodo must throw the ring into the volcano.

        1. Ending it’s power would be to stop making decisions entirely and let someone else make those calls. Actually making decisions that either reverse prior rulings or overturn legislation is still just making policy making by other means.

        2. I should add, that ending one group’s power to make decisions and then giving it to another is also just a way to make policy.

          1. No it isn’t. There are two distinct questions.

            1. What policy should be adopted on X (guns, free speech, banning religious assemblies because of a scary flu . . . you name it).

            and

            2. Who gets to decide #1? That means who gets to decide for whom, i.e. what is the jurisdiction of their decision.

            For instance, let’s say “the right” has the opportunity set and enforce nation-wide policy on guns, or religious freedom, or whatever. Most likely, they will take that opportunity, only to find out down the road that this same power will be turned against them. The alternative is to devolve that power to the States, as originally intended under the Constitution.

            1. As originally intended prior to the adoption of the 14th amendment. Amendments change things.

              1. The Fourteenth Amendment was merely intended to provide a constitutional basis for the 1866 Civil Rights Act.

                1. Yeah, I’m not the one ignoring the Congressional debates concerning it.

                  1. I’m not either. They seem inconclusive. Clearly there was some disagreement among the members of Congress, then and later, such that you can find some support in either direction.

      2. I fear that, yes. That was the whole debate we had here on this blog about throwing out Originalism and replacing it with “common good” conservatism. Whittington in particular was apoplectic, which is funny, because in his academic peer reviewed writing he is a critic of our default system of what he calls “judicial supremacy”.

        The thing is, though, is that folks on the left already call originalism and the decisions it produces, like Heller and McDonald, counter-majoritarian, especially if they undo living constitutionalism precedent.

    2. Non-majoritarian? You mean like the electoral college, and the fact that Wyoming cancels California in the Senate?

      I am not making this comment to re-hash the electoral college, which we have already thoroughly discussed here. Rather, it strikes me as incredibly hypocritical for conservatives to enthusiastically support anti-democratic institutions like the EC and the Senate, and then scream bloody murder when non-democratically elected judges make decisions they disagree with. Why is it that conservatives only value democracy if the subject is the federal judiciary, but don’t care in any other context? And how is it any worse for policy to be made by non-democratically-elected judges than it is for policy to be made by a non-democratically-elected president and senate?

      Inquiring minds want to know.

      1. “non-democratically-elected president and senate”

        This statement is false.

        Senate is directly elected by the voters. In no way shape or form is that not democracy.

        EC is indirect democracy as well. Voters vote for electors who then vote. Also democracy.

        1. It can be both democratic and non-majoritarian. Both selection methods can allow a minority preference in the entire country to set the agenda for the same.

          1. “both democratic and non-majoritarian.”

            Yes, certainly. But he is mixing up the two concepts [“anti-democratic institutions like the EC and the Senate”].

            A lot of state judges are elected so they are both democratic and non-majoritarian but the Senate is only non-majoritarian. Trump is non-majoritarian but Obama was majoritarian.

        2. OK, by that rationale, voters elect the president and senate, who appoint and confirm the judges, so the judiciary is democratic too. Of course, I think that rationale is complete nonsense, but that’s where your rationale take us.

          1. “that’s where your rationale take us”

            No it doesn’t. Voters elect US senators, that is democracy.

            Stick to non-majoritarian.

          2. I disagree that it’s democracy if a Californian’s Senate vote only counts for 1/10 of a Wyoming’s Senate vote (or whatever the percentages actually are).

            1. I disagree that it’s democracy if a Californian’s Senate vote only counts for 1/10 of a Wyoming’s Senate vote (or whatever the percentages actually are).

              Then the term you’re looking for is “mob rule.” Equal representation at the state level is also a perfectly valid democratic system. And in this country, you’re lucky enough to get both in the same package.

      2. Krychek_2, conservatism favors federalism. That means that conservatives favor a strong EC to prevent tyranny of the majority, and a strong Senate so that each state has a voice in legislation that binds its inhabitants. It does not favor legislation by the judiciary.

        In other words, just because you don’t want to be ruled by the mob, that doesn’t mean you want to be ruled by a dictator either.

        This is civics 101 stuff. Frankly it’s a little off the wall to think that the only choices are unrestricted advocacy of pure democracy and rule by unelected fiat—surely as adults we understand that there are subtler positions than This versus That.

        1. Mob rule and tyranny by the majority can be bad, but it’s possibility also not a reason to endorse consistent rule by the minority either.

        2. Prester John, my point is not the tenets of federalism. I agree with you that those are the tenets of federalism. My point is that those tenets are thoroughly hypocritical. It complains about democracy when we’re electing a president, but loves democracy when unelected judges make unpopular rulings.

          1. Krycheck, I think you are off-base here.

            Complaints from the right about decisions of the federal judiciary generally have nothing to do with whether those decisions are popular or not. Rather, the complaint is generally that the decisions are improperly changing the meaning of the Constitution without amendment.

            In theory you could support a constitutional monarchy, with no democracy at all, and yet still have this “rule of law” perspective. So they are separate issues.

            Moreover, the tenets of federalism properly understood, are not contrary to majoritarian concerns or a more populist view focused on self-government. Just the opposite. Federalism would allocate most spheres of government power to the states and to localities, where people can actually have democratic control and can actually exercise self-governance.

            There is surely much hypocrisy to be found on the right, I just don’t think you are hitting on it here.

        3. That means that conservatives favor a strong EC to prevent tyranny of the majority,

          That’s a nonsensical argument. Absolutely ridiculous.

          If the Presidenty is a tyrant, then it doesn’t matter if he is elected by a majority or a minority. If he’s not, if his powers are limited, contra the Trump/Barr view, then the majority should elect him. There is no merit whatsoever in a minority President.

          1. Hmmmm….Guess Lincoln had no merit whatsoever.

      3. “Non-majoritarian? You mean like the electoral college, and the fact that Wyoming cancels California in the Senate?”

        Ugg…. This has been hashed out to death. Might as well argue that Vermont cancels out Texas.

        The Senate is done by state. The House by population.

        1. Right. So by design it’s not meant to be actually reflective of what the majority of a country wants at any particular time.

          1. And, LTG, I’ll close the loop you started just in case AL missed your point: Why should the judiciary be reflective of what the majority wants at any given time when the other two branches aren’t?

            1. It (The judiciary) should be reflective of the population in order to have views on the law and society that are reflective of the population that it is judging.

              It the Judiciary entirely is comprised of wise Latinas, then it’s not reflective of the population as a whole. When you have divisions where those judging have sharply different views from the rest of society, you have a recipe for conflict.

          2. By design, the Senate is designed to be reflective of what the majority of the states wants at any particular time.

            It’s a federal system….

            1. Yeah I get that. But it’s non-majoritarian as far as the country as a whole goes.

              1. But relatively reflective of the population as a whole. To give an example, the current population is pretty closely divided between Republicans and Democrats. And the Senate is pretty closely divided between Republicans and Democrats. Within a few percentage points.

                1. Actually, if you check the population figures, I think you’ll find that Democratic Senators represent the majority of the population.

                  In a country of 330 million a few percentage points is a lot.

                  1. Kind of irrelevant, though, since in any given election only a third of them are up for reelection. So the Senate, instead of representing a current sample of voters, represents a kind of rolling average.

                  2. Like I said, the country is relatively closely split between Republicans and Democrats. Whether it’s 51-49, 49-51, 52-48, or 48-52, or another close split, it’s still relatively close. (and shifts with every election)

                    Yes, within large populations, a small difference will mean large absolute numbers. But that’s how percentages work.

                    What you want to avoid are large % differences. For example, if the country was closely split (50-50) but Democratic Senators made up 82% of senators consistently, there would start to be a problem.

            2. We understand the design, Al. We just think it’s a lousy design.

              1. Only when it doesn’t serve your purposes.

                For example, do you think the entire country should be opened up tomorrow? Or should it be done on a state-by-state basis, with the states deciding?

              2. It has been said that democracy is the worst form of government except all the others that have been tried.
                Winston Churchill
                🙂

          3. Because our government structure is reflective of the fact that our sovereign federal government consists of sovereign state governments.

            It’s still democratic to expect broader societal agreement than simple federal majority rule.

      4. The Senate is where all the states sit as equals at a round table. You would have no federal government without it because no state wants to cede complete control over the federal government to the large states, including but not limited to treaties, where states definitely are equals.

        This is reasonable. Your objection is due to unwarranted goalpost shifting in assuming the federal government is an all-powerful, all-encompassing government, and that states are anachronisms little more than maps describing various Indian regions of yore, of academic interest but little more.

        If you want to get rid of the Senate, you will need a constitutional amendment. Good luck convincing the many small states what’s wrong with the country is the giant concrete canyons of the coasts don’t have enough power already.

      5. Why is it that the American left constantly talks about “democracy”, about voter suppression, about gerrymandering, about the Electoral College, but want the country governed in practice by un-elected and unaccountable bureaucratic “experts”? Liberals only want “fair” elections as window-dressing for their Administrative State. The people who really run the government will remain in office no matter who wins the next election, or the one after that….

        1. It was at about this point that I had to scroll back up and remind myself what the subject of the OP had been.

    3. “a generation at least” is selling fool’s gold. At the very least, I don’t think anybody understands how swift the political response would be to, say, reversing abortion access. The right has had the benefit of being able to run against a lot of “counter-majoritarian social change[s]” without having to live with the consequences of winning on those issues. Sometimes the dog catches the car.

      1. If the Trump years and this pandemic in particular have taught me anything, I think that if they catch the car, they’re going to hold onto it forever.

      2. “. At the very least, I don’t think anybody understands how swift the political response would be to, say, reversing abortion access.”

        I think you’re the one who doesn’t understand: If the Federalist society had its way, the judiciary wouldn’t take Roe v Wade and invert it, declaring that all states had to outlaw abortion. Rather, the judiciary would just get out of the way and let the legislatures write the abortion laws they wanted.

        Since the legislatures are elected, it seems unlikely that those politicians are going to enact a policy that would cause a huge backlash. Rather, all that would happen is that abortion policy would come into agreement with public opinion in each state, rather than being compelled to match judicial opinion.

        1. the judiciary wouldn’t take Roe v Wade and invert it, declaring that all states had to outlaw abortion.

          No. But a Republican Congress and President would do that in a minute, federalism be damned.

          1. Unlikely.

          2. There was a Republican majority in both houses of Congress during part of the Bush 43 presidency. It lasted longer than a minute, yet Roe v. Wade was not “inverted”.

            Most voters who identify as Republican want to outlaw abortion, though some of them would be open to very limited exceptions. However, most Republican federal-level politicians just give it lip service. As long as abortions are mostly legal, Republican politicians don’t have to pay the consequences of “success” on that issue, and they get to hold onto an almost guaranteed subset of the electorate.

            Just to keep it balanced, the Democrats are equally bad for different reasons: Their preferred method of capturing a part of the electorate is not primarily abortion rights, but keeping entitlements such as welfare as byzantine and inescapable as possible. That allows them to paint themselves as saviors and the Republicans as brigands who would steal the food right off the dinner tables of the poor.

            Both major parties stink. This is not news.

            1. I don’t think I agree with bernard on this, but his point is that once Roe is overturned the legislature would act. During Bush 43, Roe was not overturned.

              keeping entitlements such as welfare as byzantine and inescapable as possible
              More telepathy. Maybe the Dems help the poor because they are the types who think markets alone don’t do a great job of helping the poor?

              1. Is that bad = …once Roe is overturned the legislature would act.

                I mean, shouldn’t our elected representatives decide social questions for the people who elected them?

                1. I think this is a big and unknowable enough question it should be left to the individual to choose.

              2. Sure, they’d “act”. My point is just that one shouldn’t expect much of a backlash in response to their acting, because they’re elected officials, strongly motivated to pay attention to public opinion and avoid backlashes.

                Right now they can posture as extreme to attract the loyalty of certain pro-life segments of the electorate, because they know the courts won’t let them actually put “extreme” into effect.

                Once the courts get out of the way, and what they enact becomes law, the dynamic changes, and the pro-life groups aren’t going to get everything they’re asking for.

                1. I think we agree on this.

                  I actually don’t know that the Congress would act at all for the exact moderating reason you stipulate. State governments, though, trade on extremism more easily. That’s who I’d watch.

                  I don’t agree with VenerableLurker’s analysis, though.

              3. “More telepathy. Maybe the Dems help the poor because they are the types who think markets alone don’t do a great job of helping the poor?”

                Their help tends to entrap the poor and misfortunate. The social safety net is more like a spider web. Moreover, it’s not even like a well-made spider web, because it has holes in through which plenty of the poor and unlucky fall through. Sure there are some genuinely misguided idealists among the Ds, but the entrapment is OK with most of them, as long as enough of the electorate are beholden to them for their subsistence come voting time. Keep people just a little hungry, and you can buy their loyalty with promises and a morsel of a handout, and blame the other side when more “help” doesn’t come.

                No telepathy needed, merely an observation of these systems and what the Ds do to perpetuate the status quo, and fail to do to improve upon it. To be clear, I’m not putting the Rs on a pedestal in this area. Many of the Rs think being poor is somehow a moral failure, akin to the beliefs of Prosperity Christianity. However, at least most of the Rs are willing to support policies which allow people to pull themselves up. I paid close attention to the Democratic Presidential primary debates this time around as well as what the candidates said elsewhere. It should be inherently obvious to the casual observer that the Ds have gone from “You didn’t build that” all the way to “You can’t be trusted to manage your own affairs” in just a few years.

        2. “Since the legislatures are elected, it seems unlikely that those politicians are going to enact a policy that would cause a huge backlash.”

          A few issues. First, there will be a transition period. The people in office now ran aggressively against abortion and won election. Some of their constituents bit their tongues and were willing to hand-waive the worst instincts of these people re: abortions, because what can they do? But the elected people are still in power, and they will want to enact laws they think are best, even if the people don’t have a stomach for them. That will take time to correct. It’s laughable to suggest that legislators never “enact a policy that would cause a huge backlash.”

          The more salient issue is that legislators aren’t smart enough to understand what the backlash is from their actions, much less predict how other people will react to same. How can you spend so much time on this site lambasting the competency on the political class and now insist that they are both informed about what their constituents want, and wise about how to use power?

          In fairness to the political class, how would it know what the backlash would look like? Abortion was already moving towards legalization at the time of Roe. That’s because polities were dealing with the consequences of their old laws, banning abortions. Purple suburban Texas is not going to tolerate a regime that forces its middle class to fly to New York for an abortion, especially if they have to open up the paper every morning to a story about another baby found in a dumpster, even if that’s what the current ruling class in Texas wants.

          Like the Federalist Society, I happen to think it should be left to the state legislatures. But even if SCOTUS bows out, it isn’t going to lead the dramatic social changes that abortions opponents or proponents think. Because access to abortion is important and a good idea, and we’re all going to have it whether by judicial fiat or democracy, full stop. The people trying to prevent that have always been tolerated only because they are helpless. When they are no longer helpless, they will no longer be tolerated.

          1. “Especially if they have to open up the paper every morning to a story about another baby found in a dumpster, even if that’s what the current ruling class in Texas wants.”

            I don’t think that’s the case. I think people will tolerate a lot of really bad consequences for a really long time. They’ll tune out a lot of bad news stories. Mass shootings are a great example of this. Now it’s less of a debate about how to curb gun deaths, than it is politicians straight up not caring that it happens at all.

            1. “I think people will tolerate a lot of really bad consequences for a really long time.”

              In my view this suffers from two maladies, one historical and one practical.

              On the historical side, we already know how long people were willing to tolerate limited access to abortion. At the time Roe was decided, there were massive, accelerating social changes going on nationwide as to the role and independence of women. Abortion was just part of that, but approximately 20 states had already begun decriminalizing certain abortions, and expanding access. But that was nearly 50 years ago. A lot has changed in that time, none of which suggests a regression of women’s rights.

              Practically, you’re no longer dealing with a bunch of southern women who don’t know what they haven’t been allowed to have. Psychologically it’s one thing to tell a voter “You can’t have this thing that you’ve never had” as opposed to “This thing that you have organized your life and affairs over, and which has not brought on any calamity but has in fact made your life much better, is now illegal”.

              1. That second point is a good one.

          2. “especially if they have to open up the paper every morning to a story about another baby found in a dumpster, ”

            You get babies found in dumpsters today. Dismembered babies found in dumpsters. Maybe your point is that the MSM would start reporting on it?

            I’m not quite sure why you think people who disapprove of abortion are going to find rare instances of criminal infanticide a reason to restore (what they view as) legal infanticide.

            1. If you mean aborted fetuses, I’m suggesting that people care less about the death of aborted fetuses than they do a born child left to die of exposure, starvation, etc. in a dumpster. If you’re talking about graphic incidents of abortion providers killing later term babies, I remember the stories, too, suggesting that the MSM did report on it.

              “I’m not quite sure why you think people who disapprove of abortion are going to find rare instances of criminal infanticide a reason to restore (what they view as) legal infanticide.”

              And I don’t know why you’re so confident about how much criminal infanticide will take place in a world where women do not have access to abortions. I’m suggesting it goes up. And that’s only one (particularly graphic) example of the social ills of abortion abstinence. There are plenty more. You’re not going to believe this, but some Republican voters today assist their teenage children in accessing abortions, and not just to save the life of the mother.

    4. mad_kalak wrote: “If Trump is re-elected, the left’s ability to impose counter-majoritarian social change through the courts will be gone for a generation at least.”

      No. the “generation” would expire as soon as the Democrats seized both Houses of Congress and the White House. The pace of change in judicial structure and appointments would be breathtaking. All that would be required would be the end of the filibuster, which is already at death’s door. In fact, given the current polls, it looks like a realignment could begin as early as 2021.

      1. Okay, let me rephrase that. If the Dems capture the House, Senate, and Presidency and restructure the courts, they will pack them like Trump/McConnell has done, and then we can once again expect counter-majoritarian change from the courts in the direction that the left desires.

  2. I wondered a little how biased the proposal was, but my suspicions were tame compared to what this letter states. I did not know, for instance, that the Federalist Society had never advocated for anything or filed any amicus briefs, although I knew the ABA had been preaching for the leftists viewpoint almost entirely.

    Interesting to see what Roberts does, if anything.

    1. The “never advocated for anything or filed any amicus briefs” kind of missed the point. The objective of the Federalist Society isn’t to litigate individual cases, it’s to create an environment that fosters a reliably Conservative interpretation of US law.

      One of the more telling and damning examples of this is their role in Judicial nominations and the cozy relationship with the Trump administration.

      Ultimately, the Federalist Society is an effort to inject partisanship into the US Judicial branch, which is the absolute last place you want it. Sure, creating “reliably conservative” Judges gives you political wins, but it’s one of the things destroying your country.

      1. What about the destruction wrought by the ABA?

  3. So, what are the potential consequences of violating this “exposure draft”? Is it a nothingburger, or are there actual penalties associated with it?

  4. Wow….

    I do fear for the future of the Republic.

    1. What you fear is here, and has been for quite some time.

  5. “Chief Justice John Roberts is the official head of the Judicial Conference, and he should call Judge Erickson and tell him to kill this draft forthwith.”

    Does the Chief know this, or otherwise have a clue? 😉

  6. Here’s the argument on the other side:

    If I were a litigant in front of a federal judge on a question urging the Court to adopt a non-originalist interpretation of the Constitution, and the judge was a member of the Federalist society, I would absolutely, positively move to have that judge recuse himself. If he didn’t, that would give me a beautiful issue on appeal, all gift-wrapped and tied with a bow. By being a member of the Federalist society, the judge has essentially announced that his mind is already made up on the question.

    Judges need to avoid the appearance of bias, and yes, the same principle would apply to a judge who was a member of the ACLU. Judges should not be members of organizations that make it appear that they don’t give litigants a fair shake. Even if they do, it still looks bad.

    1. “the same principle would apply to a judge who was a member of the ACLU”

      The relevant comparison was to the ABA – here they are urging a ruling favorable to the “right” to abortion (or “health care” as they call it):

      “The ABA’s membership also includes *judges,* legislators, law
      professors, law students, and non-lawyer associates.” [emphasis added]

      https://bit.ly/2W7iFy9

      If some hapless lawyer is supporting an anti-abortion law before a judge who belongs to the ABA, what are the chances the judge will be disqualified?

      1. I’m not aware that the ABA has taken a formal position on Roe v. Wade. If it has, then I would say no judge who’s a member should hear an abortion related case either.

        1. “As lawyers, we are special leaders of this society and guardians of fundamental liberty who must preserve a woman’s right to choose,” Washington, D.C. lawyer Marna Tucker told the ABA’s policy-making House of Delegates shortly before the group voted 276-168 in favor of abortion rights.

          About half of the nation’s 750,000 lawyers are members of the ABA. In 1990 the group voted to back abortion rights, but six months later, facing threats of mass resignation, the ABA switched to a neutral stand.”

          1. Why would a decent human being join the ABA?

            1. Because decent human beings support abortion rights.

              1. At any rate, you should be certain now that they took a position, even if you happen to approve of it.

            2. Because they give you a free year after you pass the bar and then your firm pays for membership and you get cheaper CLE.

          2. And after that 1992 article – in 2019 – the ABA adopted the resolution which it quoted in its own brief, euphemistically referring to “medical facilities” though the brief and the ABA’s own publications make clear that this means abortion.

            https://www.abajournal.com/news/article/aba-amicus-brief-urges-scotus-to-follow-precedent-in-louisiana-abortion-case

            Just as an earlier generation of legal professionals employed euphemisms like “domestic institutions” and “that species of property,” the current generation makes use of euphemisms like “medical facilities” and “healthcare.”

            1. So who is the slave here, Eddy?

              1. Hmmm…actual abolitionists – back when slavery was legal – didn’t seem to think pregnancy was slavery, and at the same time legalized slavery was being purged from the body politic, legislatures (including Northern legislatures) were tightening the laws against abortion. Were they pro-slavery sympathizers?

                1. Here is an article from a writer who is “pro-choice” (or whatever they call themselves nowadays)

                  https://www.history.com/news/the-criminalization-of-abortion-began-as-a-business-tactic

                  Abortion was comparatively open before the Civil War – on the eve of the war the American Medical Association recommended anti-abortion laws (discarding the unscientific concept of “quickening”), and then the states began passing stricter laws against the practice.

                  It seems that progress in public enlightenment against slavery was taking place at around the same time as progress in public enlightenment against abortion.

    2. Yes, but how exactly does this justify singling out the Federalist society, and not the ABA? If I were a litigant urging the Court to adopt an originalist interpretation, why wouldn’t I have at least as much of an issue with ABA members? Remember, unlike the Federalist society, the ABA actually does take positions and lobby for them, and isn’t in the habit of inviting both sides of controversies to speak at its meetings.

      So the case for the ABA being biased is actually stronger.

      I suppose you could argue for a policy of discouraging memberships in any legal organization whatsoever. But playing favorites?

    3. “give me a beautiful issue on appeal,”

      LOL No it would not.

      Among other things, not every Federalist society member is an originalist, some are textualists.

    4. Your appeal would be laughed out of court. Philosophical differences in interpretation of the law are not grounds for appeal or justification for recusal.

      1. It depends on the philosophical difference in interpretation of the law. I once successfully got a judge thrown off a case involving the police — by writ of mandate to the court of appeals — who was caught saying that she always rules in favor of the police. That case could be distinguished from this one, but it gives the lie to the argument that philosophical differences are *never* grounds for reversal or recusal. The standard is if a reasonable person could believe the judge will not be unbiased.

        My appeal would need to be drafted a little more artfully than as I presented it in my comment.

        1. That’s not a “philosophical difference in interpretation of the law”, that’s a flat out statement that you’re going to favor one of the parties in the case.

        2. “My appeal would need to be drafted a little more artfully than as I presented it in my comment.”

          An understatment.

          Michaelangelo could not provide enough art for such a motion to be successful.

          1. Bob from Ohio wrote: “Michaelangelo could not provide enough art for such a motion to be successful.”

            It all depends on the audience.

    5. “If I were a litigant in front of a federal judge on a question urging the Court to adopt a non-originalist interpretation of the Constitution, and the judge was a member of the Federalist society, I would absolutely, positively move to have that judge recuse himself. If he didn’t, that would give me a beautiful issue on appeal, all gift-wrapped and tied with a bow. By being a member of the Federalist society, the judge has essentially announced that his mind is already made up on the question.”

      You don’t understand what “bias” means in the context of a recusal motion. It does NOT mean the judge has a different philosophy of Constitutional interpretation than you do.

  7. From the Federalist Society’s “About Us” webpage:

    Our Purpose

    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.

    They should be a little bit more discrete if they want people to believe they are not a conservative interest group seeking to shape policy via the judiciary. Also, they might want to correctly name themselves the Anti-Federalist Society, since that is the ideology they are actually pushing.

    1. Per the purpose you cite, they’re a conservative interest group seeking to END shaping policy via the judiciary.

      But your last point I might agree with; The anti-Federalists are underappreciated, history has proven they had a better grasp of where the Constitution would lead than the Federalists. (Except Hamilton, of course, who quite deliberately was planting an acorn in order to get an oak.)

      1. Except there’s no such thing as ending judicial policy-making. They just want different policies.

        1. So should it be ended, or shall we continue treating the 3rd branch as a crypto legislature to be won at elections and slowly changed?

          1. The second. It’s more honest that way.

        2. The drunkard always says sobriety is impossible.

          There’s wanting different policies, and there’s admitting that somebody else has the job of setting policy.

          If a traffic cop decides that stopping people for speeding when they’re traveling 30mph in a 50mph zone is the right thing to do, this doesn’t represent him deciding that the speed limit should be 50mph. It’s him deciding that it isn’t his job to set the speed limit.

          If the judiciary stop setting abortion policy, and let the legislatures do the job, it’s not an endorsement of the legislatures’ choices, it’s a recognition that abortion policy IS the legislature’s choice, not the judge’s.

          1. But conservative judicial philosophy also does not want the political branches setting certain policies in the first place.

          2. And if the judiciary disagree with the idea that it’s the legislature’s choice, and thinks abortion shouldn’t be outlawed because that would be a real, as opposed to imaginary, case of the tyranny of the majority.

            The problem with all your arguments here is that you beg the question. You start from the position that abortion is not a right, which of course leads you to the conclusion you want. Others, myself included, disagree.

            I mean, that’s what all the debate is about, after all.

            1. That’s right, we start from the position that we’ve got the Constitution that was actually ratified, not the one you’d rather have in its place.

      2. So, they don’t like how policy has been shaped by liberal interest groups and want reshape said policy so as to eliminate the liberal shaping?

        I just see a lot of interest groups trying to shape a mound of clay. I think you see a conservative clay object that liberals have somehow distorted from its natural shape. Congrats, you’re an ideologue.

        1. The difference is that, if the Federalist society prevails, abortion will continue to be legal where state legislatures decide it should be legal. Arguably right up to birth in states like New York.

          Dictating policy would be continuing to set a uniform policy, and just changing what that policy was. Not letting somebody else set it.

    2. It depends on how you capitalize things. A federalist during the ratification phase was not a nationalist. (From my Early Republic class)Jefferson was a nationalist but was not a Federalist. As for the anti-federalist thing, people also use and Anti-Federalist. The Federalist Society is going to capitalize the first word, and it likely has to do with their belief in federalism, not the ratification period.

  8. Sounds like the ethics committee was being unethical…

    1. That is a feature of such entities.

  9. This whole fight is stupid and a self-inflicted wound by the Judicial Conference. The Federalist Society is a conservative organization that promotes conservative legal philosophy. Pretending it’s not is stupid. That being said, pretending that it really matters whether or not judges are members is equally stupid. They don’t need to be members to figure out what their views are or where their biases are. I mean usually they tell you! For instance it would make zero difference if James Ho was banned from or disavowed the Federalist Society. I already know what he thinks because I’ve read his self-indulgent opinions. Being a member or not being a member would not stop him from writing those. Similarly, I know Jeff Sutton is conservative, I also think he’s actually a pretty good judge. If he wants to be a part of the Federalist Society (which I don’t think he is at the moment) and promote some conservative legal views, let him. I’ve read enough of his opinions to know even though he’s conservative he doesn’t try to use his job to write politically charged screeds, and that parties will probably get a fair shake in front of him. Being a member wouldn’t change that about him either.

    1. It’s not particularly stupid. They’re setting the stage for filing charges of misconduct against conservative judges, which could lead to them being prevented from hearing any further cases, or other disciplinary actions.

      Not likely to happen while Roberts is the Chief Justice, but that could change pretty quickly in some scenarios, and then they could proceed with a purge of the federal judiciary.

      1. That’s not necessary at all though. I assume the worst of them will eventually discredit themselves in due time by sheer arrogance.

        My money is on James Ho or Kyle Duncan insulting trans lawyers to their face for instance.

        1. “Discrediting themselves” in your eyes is a relatively inconsequential thing. No longer being assigned cases is somewhat more consequential.

  10. As practitioner in the Central District of California, I am fairly ashamed (but not surprised) that not a single judge from my district deigned to sign the letter.

  11. > Roberts should flush this out quietly and discretely, the way it ought to be. No more public leaks.

    You seem to have mispunctuated this. It should be: “No! More public leaks.”

  12. Why does anything that Roberts would want to quash this? Or is not, indeed, a moving force behind-the-scenes in its favor?

  13. Why should Roberts do it discretely?

    If he wants to get it done he may need to pressure Erickson continously.

  14. What would you expect from the limousine liberal class. These are the same people that live in the echo chamber of Twatter, proudly proclaimed they don’t know how Trump could have won because they don’t know anyone who voted for him, and conjure up bigoted images of Trump voters being slack jawed rednecks from Kentucky who shoot blacks with AR-15 machine guns.

    This resolution reads exactly like such a sheltered member of the liberal elite would type up and think it was A OK to pass. And shows every real American what a joke that egghead, pencil necked, eunuch level of society is and why they can’t be trusted with power any longer.

    1. “And shows every real American what a joke that egghead, pencil necked, eunuch level of society is and why they can’t be trusted with power any longer.”

      Well that was a weird thing to type.

  15. What’s up with advisory opinions? When can federal judges issue them, and when can’t they?

    We know they can’t issue advisory opinions in their *public* capacity – that is, while on the bench deciding cases. If they happen to issue an advisory opinion, it’s “dictum,” and nobody’s bound by it.

    Can an advisory opinion be more binding if issued by a federal judge in his/her private capacity? As in, this is my private opinion but since I happen to be a federal judge this opinion means something and you better abide by it?

    1. Or is this some kind of hybrid between acting as a judge (can’t make binding advisory opinions) and acting as a private person (ditto) – some administrative law halfway house?

    2. This isn’t an advisory position in a legal case. It’s an advisory position issued by the Judicial Conference, an official group in charge of regulating legal ethics. They absolutely can issue advisory positions.

      1. Well, again I’m going to go with a naive response which I’m sure is quite different from how federal judges actually get regulated: Why can’t Congress – in its legislative capacity – pass a code of ethics for judges and then – in its judicial capacity – impeach and remove judges who violate the code?

        1. In theory they could.

  16. I guess for this layperson, here is the problem I see. The Judicial Conference’s Code of Conduct Committee is trying to ostracize a philosophical orientation (Federalist Society), when they should be ostracizing action (advocacy for a specific policy or law).

    We don’t punish thought, we punish acts.

  17. The point is, “We” might not punish thought, only acts. But “they” are perfectly willing, even eager, to punish thoughts.

    1. Brett, I think we see the same thing. I am glad Justice Thomas called this out last month. This should not be a hard call at all. This was a very foolish thing to do by that Committee.

    2. We can punish thought all we want, by mockery and shunning etc. This is not something the right has shied away from.

      This may not be a good look, but it is freedom of association.

  18. The Federalist Society’s approach to reform is comparatively mild. Instead of taking specific legal or policy positions, it facilitates open, informed, and robust debate.

    There’s the problem. The left wants none of these things.

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