Kopf: A Bomb Is Dropped Hitting 2 Deserving Targets But Missing A Third

Last week, after more than 48 years, I resigned my membership in the American Bar Association, after very carefully reading the exposure draft of Advisory Opinion No. 117 of the Committee on Codes of Conduct of the Judicial Conference of the United States. I encourage you to read it carefully.

Essentially, the Codes of Conduct Committee suggests that judges should no longer remain members of the American Constitution Society or the Federalist Society. However, the proposed opinion suggests that judges may continue to be members of the American Bar Association. I strongly agree with the opinion insofar as the American Constitution Society and the Federalist Society are concerned. With regret and respect, I strongly disagree with the exception for the American Bar Association.

As a prefatory matter, I wish to make clear that I have the highest regard for the Committee on Codes of Conduct and each one of its members plus the brilliant committee counsel who advises them. The Committee works incredibly hard to provide federal judges with confidential opinions on thorny ethical issues under extreme time constraints. It also issues Advisory Opinions to help judges more broadly. Having served on that Committee for six years, I can say without reservation that the Committee is unbiased. And any suggestion to the contrary is BS.

The present Chair of the Committee is Judge Ralph Erickson. Ralph is a Circuit Judge on the Eighth Circuit, having been nominated by Present Trump and confirmed 95–1 on September 28, 2017. Before that he served as a distinguished district judge having been nominated by Bush 43.

Ralph is a great judge. He is also a wonderful human being. By the way, Ralph is a self-admitted alcoholic. His exchange on this subject with Senator Franken is hysterically funny and is now legend.

“May I ask you how long you’ve been in recovery?” asked Minnesota Sen. Al Franken.

“It’s over 26 years, Nov. 10, 1990, at 4 o’clock in the afternoon, sir,” Erickson answered.

“Bravo,” interjected Rhode Island Sen. Sheldon Whitehouse.

“OK, what happened at 3:59?” Franken replied to Erickson amid laughter throughout the room. “That was a joke.”

“Should I take the Fifth now?” Erickson said.

Franken then talked about how he found Erickson’s testimony “very moving,” particularly in dealing with the sentencing of Native Americans.

“We need more alcoholics in our courts. Certainly in this circuit,” Franken said, smiling. “Oh, oh recovering, recovering. Not active alcoholics, yes. I don’t want to confuse anyone here.”

Ryan Lovelace, Trump appeals court nominee wins bipartisan praise, Washington Examiner (July 25, 2017).

In short, any suggestion that Ralph would allow the Committee to act in a biased manner is utter nonsense. Ralph is a practical and honorable judge, for whom any suggestion that he would allow the Committee to act in a disingenuous manner reflects the worst type of slime. The same goes for other members of the Committee and committee counsel, brother Whelan’s frothing at the mouth notwithstanding. See Edward Whelan, Re: Draft Judicial Ethics Opinion Favors ABA over Federalist Society and ACS, National Review (January 23, 2020) (“As I’ve pointed out, the Democratic appointees[i] [on the Committee] include . . . . So the composition of the Committee might go a long way to explain why the draft opinion favors the ABA over the Federalist Society.”)

Allow me now me to turn to the merits.

You would be brain dead if you concluded that the Federalist Society and the American Constitution Society are not shills for the Republican and Democratic parties when it comes to judges. Hell, President Trump uses a Federalist Society heavy hitter to pick many of his nominees, and the next Democratic President would likely use the ACS in a similar fashion. Carl Hulse, Liberals Begin Lining Up Young Judges for a Post-Trump Surge, New York Times (June 8, 2019). If you believe in legal realism, the following is indisputable.

A reasonable and informed public would view judges holding membership in these organizations to hold, advocate, and serve liberal or conservative interests. The Committee finds it particularly significant that a motivating factor in the formation of both the ACS and the Federalist Society was the perceived success of their ideological opposition. The Federalist Society formed in part to counter the perceived liberal influence of the ABA, and the ACS then formed to combat the perceived conservative success of the Federalist Society. The Committee cannot see how the public could perceive the two organizations any differently from how the organizations perceive themselves.

Exposure Draft, Advisory Opinion no. 117 at p. 7.

Next, I turn my attention to the exception for the ABA. There is no question that the ABA writ large pushes a liberal judicial philosophy and liberal causes more generally. Mr. Whelan has fairly explained why that it is so. Ed Whelan, Federal Judges and the Federalist Society—Part 2, National Review (November 25, 2019).

But the Codes of Conduct Committee evidently concluded that there was a “safe harbor” within the ABA.

[W]e think it significant that, since 1912, the ABA has maintained a separate membership section for judges, now called the Judicial Division. According to the Judicial Division’s Bylaws, “judicial members of the Division will not be deemed to endorse positions and policies adopted by the ABA that conflict with a judge’s obligation to comply with the ABA Model Code of Judicial Conduct or the Governing Code of Judicial Conduct in the judge’s jurisdiction.” Judicial Division Bylaws, Art. I § 1.03. This longstanding division in membership lessens the risk that membership in the Judicial Division “might reasonably be seen as [a judge’s] indirect advocacy of” the ABA’s policy positions.

I do not find that distinction persuasive. First, a reasonable person, be she or he a judge or lawyer or lay person, is unlikely to be familiar with this fine print and thus might reasonably conflate the judge’s membership with endorsement of the general liberal lobbying and litigation activities of the ABA. Second, one cannot become a member of the judicial division alone—one must be a full-fledged member of the ABA. See ABA FAQ (“Can I join a Member Group without joining the ABA? No. Membership in Member Groups is available only to ABA members.”)  The cost to join for a judge is $150 dollars plus $35 to join the judicial division. See here and here (scroll to “Join Us”). Since money is fungible, it is impossible to conclude that a federal judge is not contributing to the liberal activities of the ABA when he or she pays the ABA dues.

So, to conclude, I commend the Committee on Codes of Conduct for tackling these important and contentious problems and doing so in a very thoughtful and transparent manner. That they are batting .666 is cause for celebration and not alarm. However, I urge the Committee to go three for three after they hear the thoughts of others regarding the exposure draft.

Richard G. Kopf
Senior United States District Judge (NE)

[i] The judges who serve on the Committee are selected by the Chief Justice.

19 thoughts on “Kopf: A Bomb Is Dropped Hitting 2 Deserving Targets But Missing A Third

  1. shg

    One nit to pick, Judge. Where you use the word “liberal,” i would use the word “progressive.” There is nothing liberal about the ABA, and I refuse to allow the word “liberal” to be besmirched without a fight.

    Reply
    1. Hunting Guy

      I can see that you regard liberal and progressive as terms of art.

      Could you please define them?

      From where I sit the general consensus by the public seems to be that they are synonymous.

      Thanks.

      Reply
      1. Richard Kopf

        Hunting Guy,

        The committee uses the dichotomy of liberal or conservative. But the Committee also states that the ACS uses the word “progressive” to define itself. In any event, Scott is correct that “progressive” and “liberal” have now become quite different for those like Scott who think deeply about such things. That said, I used the Committee’s nomenclature for the sake of convenience.

        All the best.

        RGK

        Reply
  2. Skink

    Did you turn out the light when you left?

    I appreciate your effort at resigning, but it won’t work. I’ve quit a dozen times, but they just ignore my quitting.

    Reply
    1. Richard Kopf

      Skink,

      I don’t expect my resignation to mean anything to anyone else. I did it for me.

      By the way, with the drastic drop in membership, the ABA should turn the lights off because the party is over.

      All the best.

      Rich

      Reply
      1. B. McLeod

        I suspect we will find that the “new membership model” and the new logo have not solved the problem, but I await the reports that will be delivered at the February mid-year for confirmation.

        Reply
    1. Richard Kopf

      LT,

      When I first began to practice law far out in the sticks none of the courtrooms were air conditioned. I learned then that real lawyers and judge don’t sweat.

      As an aside, I noted your reference to “A/C” and was confused. I thought you were referring to a brilliant young Congresswoman from New York City. Don’t laugh. I’m old.
      RGK

      Reply
  3. B. McLeod

    I don’t know any of the judges on the drafting committee, or Ed Whelan. However, and whether or not the bias was deliberate, I do not see any explanation other than bias for the fact-defying conclusion that the ABA is less involved in political advocacy than these other organizations. Before Ed Whelan wrote anything about it, Ted Olson debunked such claims in an analytical letter posted with Politico, last September. Olson, of course, is a recent addition to the thousands of former members who left ABA for reasons connected to its off-the-rails political fanaticism.

    Beyond the political advocacy issue, ABA’s discrimination against older lawyers is an additional, longstanding reason why no judges should maintain ABA membership. I have never been a member of the Federalist Society or the ACS, but from what I can see via their online sites, ACS operate on donations and the Federalist Society will admit any lawyer, new or old, for $50.

    By contrast, the ABA’s “experience-based” dues structure is an effective proxy for charging older lawyers higher dues for no greater member benefits. Newbies at the big firms pay only $75, despite their $190,000 starting salaries, while senior lawyers around the country are jacked up for dues as high as $450. Even more unseemly, government attorneys and judges receive a special dues rate of $150, which provides an incentive for them to look the other way.

    Judges who maintain membership in the ABA are effectively providing a veneer of legitimacy for this discriminatory organization. If ABA were running a scheme that charged women lawyers more or charged black lawyers more, there would be Hell to pay for any judge who maintained a membership. Yet, as the ABA continues to discriminate against older lawyers all day every day, that point somehow gets a blind eye. It shouldn’t. I hope that as judges are allowed to comment on the draft opinion, some of them will see fit to raise this additional issue, which has been ignored.

    Meanwhile, Your Honor, welcome to the ranks of former ABA members, who are ever more in numbers.

    Reply
    1. Richard Kopf

      B. McLeod,

      Since I became a judge in the dark ages, I maintained my ABA membership primarily because I believed the work of the Standing Committee on the Federal Judiciary of the American Bar Association did essential work. That was so even when the Committee’s conclusions seemed mistaken to me.

      Given proposed Advisory Opinion No. 117, and deeper introspection caused by the Opinion, I came to the conclusion that the service performed by Standing Committee did not outweigh the harm caused by a federal judge seeming to endorse the ABA’s liberal advocacy. The foregoing is not an excuse but an explanation.

      All the best.

      RGK

      Reply
  4. Mark Dwyer

    Let me begin with my “snark.” Judge, why would you suddenly be moved to resign from the ABA because you disagree with something said not by the ABA, but by the Judicial Conference committee?

    But: bar associations do not just take “political” positions. The ABA, for example, has for decades promulgated standards for criminal justice practitioners. Not everyone is thrilled with the positions taken in those standards, or at least in many of them. Still, I think they have value. (So do, it might appear, the courts that cite them). I joined the ABA when I had a chance to be involved in the standards process. I’m glad I did. And I can certainly attest to the non-political nature of the standards process.

    (I was much younger when I joined. I liked the discount!)

    In any event, I can’t believe anyone thinks that all ABA members subscribe to the “political” views expressed by the organization. Certainly no one should think that my views mirror those of the ABA!

    Reply
    1. B. McLeod

      Well, whenever the ABA puts out these positions, it says that it is speaking for “the legal profession,” and for its “more than 400,000 members.” So. It is certainly holding out to courts, legislatures and the general public that all of its members subscribe to the positions it is pushing. (ABA also claims to be “nonpartisan “).

      Reply
    2. Richard Kopf

      Mr. Dwyer,

      I don’t consider your comment to be snarky. You make some fair points. But, in the end, I thought the Codes of Conduct Committee’s analysis regarding the Federalist Society and the ACS, fairly understood and consistently applied, also implicated the ABA in the same vein. That being the case my “sudden” resignation was prompted by my personal discomfort with continuing membership in the ABA after release of the Advisory Opinion. Advisory Opinions are big deals–they are not issued without great care. By the way, if I gave the impression that the ABA does not do things of value for the profession, including those in the criminal practice, I apologize.

      All the best.

      RGK

      Reply

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