The Committee on Codes of Conduct has drafted a proposed advisory opinion regarding law-related organizations and has circulated the draft for comment by judges. The draft advises against membership in the Federalist Society or the American Constitution Society, but allows for participation in those organizations' events and is cautiously approving of membership in the ABA. The draft apparently leaked, and is now the subject of general comment. In the spirit of unsolicited advise, I suggest the draft not be made final. It is well-meant, but ill-judged.
Canon Four provides in relevant part that "a judge should not participate in extrajudicial activities that detract from the dignity of the judge’s office, interfere with the performance of the judge’s official duties, reflect adversely on the judge’s impartiality, lead to frequent disqualification, or violate the limitations set forth below." The Canon further specifies that, subject to this general limitation, a " judge may participate in and serve as a member, officer, director, trustee, or nonlegal advisor of a nonprofit organization devoted to the law, the legal system, or the administration of justice." Canon Two imposes the related requirement that judges "act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." The Draft cites other provisions, but these two do the heavy lifting.
The draft's reasoning rests on presumed public perception. The committee believes that "[a] reasonable and informed public would view judges holding membership in these organizations to hold, advocate, and serve liberal or conservative interests." From this premise it is a short step to conclude that membership reflects partiality, contrary to Canon Four. Partiality in turn reduces confidence, contrary to Canon Two. This reasoning is sound as far as it goes, but it seems to me not to address three points that make the draft as a whole unwise.
First, the draft avoids analysis of causation. Do people join these groups because they have liberal or conservative beliefs or or do they have such beliefs because they join? Common sense and experience suggest it is the former; the draft reads as if it is the latter. No doubt being part of a group reinforces beliefs to some extent, but it is not as though Justice Gorsuch would think like Justice Breyer had he wandered into an ACS meeting first. Republican presidents will tend to nominate conservative judges, and Democratic presidents will tend to nominate more progressive judges, regardless of membership in these groups.
Second, public perception is an unstable ground for such an opinion. The Federalist Society has had increasing notoriety in part because journalists who dislike its politics have tried to stir the pot of public opinion against it. Conservative media will stir the pot against ACS nominees if a different president does the nominating. It is poor logic and bad policy to let the success of an organization's opponents determine the acceptability of membership.
The Draft seeks to sidestep this problem by quoting statements from each organization's self-descriptions, which unsurprisingly may be read to say that the Federalist Society is conservative and the ACS is progressive. I doubt the general public spends much time reading such statements, however, and they have not changed much over time. What has changed most is the salience of the Federalist Society, and that change is largely the work of the present administration and its opponents. There is nothing wrong with progressive journalists taking a run at the Federalist Society, or vice versa for ACS, but success in hanging a frame on these groups is not a sound basis for policy.
The Draft references Advisory Opinion 93, which opines that judges should avoid law-related activities that benefit "a specific constituency." I don't think either conservatives or progressives are coherent enough groups to count as a constituency, much less a specific one. And the Federalist Society's ceaseless touting of "originalism," in all its incoherent variants, is in fact directed to a general method, not a specific constituency. The same would be true of a "living" Constitution, should the ACS choose that term.
Public perception also seems to press against the Draft's distinction between membership and participation on panels or at events, which the Draft provisionally approves. The Draft opines that "speaking engagements or panel discussions do not necessarily indicate, nor could they be reasonably perceived as indicating, the endorsement of the organizations’ views or positions." Really? I suppose that's true if one is the liberal at a Federalist Society event, or vice versa for an ACS event, but I have to say, I think a well-covered speech is more likely to nudge public opinion than an anodyne website self-description.
Third, I think the draft is likely to be, as it already has been, counterproductive. The impulse to distance the judiciary from retail politics is noble, but these groups are the wrong targets. They are too general and diffuse in orientation. By targeting them the Draft throws gas on the embers it hopes to smother. The problem is not that membership in a group will never be problematic--no one is going to defend Klan membership as consistent with Canon Four. The problem is that the ACS and the Federalist Society are not the rifle-shot constituencies that Advisory Opinion 93 spoke of. The Draft therefore seems to aim at intellectual dispositions and tendencies--at casts of mind--rather than at plausible judicial bias.
Perhaps less importantly, the draft subtly reinforces the idea that politics defines a person, and by extension a person who is a judge. That does seem to be the way D.C. runs now. Everyone there seems too busy fundraising and flying back to their constituencies to grab a drink with someone across the isle and talk baseball, or kids, or whatever. Friendship and trust among political opponents seems out of style. And when I think of the judges I like, a Friendly, or Harlan (II), or even Justices Stewart or Powell, who are hard to categorize politically but who got to the heart of the matter, I don't see that they would fare well in the modern judge-picking environment. That's sad, and a real loss.
All that may be an argument in favor of the draft, as an acknowledgment of modern political reality. Maybe the public thinks that way, but I still don't think that most courts work that way in most cases. And the public opinion on which the draft rests is not fixed. It can be influenced by, among other things, the draft itself. To the extent the committee is concerned with such effects, I think it better to curb the reductionist cast of mind the draft presumes rather than to seem to validate it.
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