Short Take: Federal Judges Exposed, Rerobe

Poor Senator Sheldon Whitehouse is going to have a conniption. After all his efforts to exert control over the Federalist Society by pushing to force federal judges to quit their membership, it not only amounted to nothing, but ended up backfiring.

On January 21, 2020, I circulated the Judicial Conference Committee on Codes of Conduct’s draft Advisory Opinion No. 117 as an exposure draft for your review and comment. The draft opinion addressed judges’ memberships in certain law-related organizations. The 120-day Judiciary comment period ended on May 21, 2020, and the Committee received comments from about 300 judges expressing a wide variety of views. At its July 2020 meeting, the Committee reviewed the comments and after extensive deliberation decided to table issuing draft Advisory Opinion No. 117 and not to publish it. Instead, the Committee will rely on the advice it has previously provided concerning membership in law-related organizations. See, e.g., Advisory Opinion No. 82: “Joining Organizations.”

Soft, sweet, benign, it basically says “never mind.” The original thrust of the exposure draft was that judges compromised their neutrality by being members of the heinous Federalist Society. They had to throw in the left-wing American Constitutional Society just to pretend there was balance, even though the latter was relatively inconsequential, along the lines of “Who?”

But then came a reaction they failed to anticipate, that if membership and involvement with the Federalist Society was to be forbidden, even though it took no public political positions, filed no amicus briefs and didn’t participate in litigation, then what about the American Bar Association? They had long since become a captive of the left fringe of the Democratic Party, commonly issued silly political positions saying so and proffered amicus briefs to the Supreme Court regularly siding with the progressive positions. This is why their members fled them, as they stopped being a lawyer organization and turned into a left-wing political organization.

Judges noticed this omission.

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.

To be sure, Judge Kopf isn’t asking for a FedSoc membership application either, but like many federal judges, he doesn’t care to be gamed by fools.

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.

While shutting one’s eyes hard enough and pretending that the dues paid weren’t being used for unethically biased purposes might have been good enough for the committee to hide, it wasn’t for Judge Kopf. And it appears it wasn’t for the 300 judges who told the committee to cut the shit.

So while the FedSoc is still fair game for judges to join, the ABA is not for any judge who isn’t lying to himself and pretending his membership in a progressive club engaged in lobbying and litigation for extremely partisan causes doesn’t implicate them. Money talks, and some judges finally realized it. Was that what you were aiming for, Sheldon?

9 thoughts on “Short Take: Federal Judges Exposed, Rerobe

  1. Richard Kopf

    Scott, for reasons of my own, I wish to make clear that I did not send you the AO memo. Nor did I confer privately with you about the memo. While there is no suggestion in your post that I was the source, I thought it proper to be clear for those who might draw an unwarranted inference. By the way, had I been the source, there would not have been anything wrong with sending you a copy. But I purposely decided to watch from the sidelines.

    All the best.


  2. B. McLeod

    For it’s own part, the ABA couldn’t resist pointing out that, while the exposure draft existed, it singled ABA out as not being a problem. This was supremely ironic, in that exactly that feature of the draft led to its demise. It also serves to underline why the simple tabling of the draft without acknowledging its gross analytical errors was insufficient.

    1. SHG Post author

      The draft was flawed in numerous respects. The omission of the ABA, and the bullshit rationalization for that omission, is just one that strikes close to home.

  3. John Barleycorn

    “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. ”

    Conservatives and libertarians what do those words even mean?

    P.S. “Legal order” sounds interesting though… but is “order” “legal” if the priority is putting a premium on individual liberty as those swanky guys from the Federalist Society are always telling me on their post cards?

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