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.