In a recent turn of political partisanship masquerading as decency, the Committee on Codes of Conduct of the U.S. Judicial Conference has indicated its intention to prohibit judges from belonging to the Federalist Society. Comprised of 15 judges from across the country, the conduct committee is the ethical advisory branch of the federal judiciary.
Last week, the Wall Street Journal received a “January 2020 exposure draft for review and comment,” a tentative document that revealed the committee’s intentions to ban judges from joining either the Federalist Society, a network of conservative and libertarian law students and lawyers that has chapters at most law schools, and the American Constitution Society (ACS), the liberal legal organization formed in opposition to the Federalist Society.
“In sum, the Committee advises that formal affiliation with the ACS [American Constitution Society] or the Federalist Society, whether as a member or in a leadership role, is inconsistent with Canons 1, 2, 4, and 5 of the Code,” the document states.
“Official affiliation with either organization could convey to a reasonable person that the affiliated judge endorses the views and particular ideological perspectives advocated by the organization; call into question the affiliated judge’s impartiality on subjects as to which the organization has taken a position; and generally frustrate the public’s trust in the integrity and independence of the judiciary.”
The draft also advises law clerks not to take part in the Federalist Society, further encouraging young lawyers and soon-to-be lawyers from forging any association with the organization. This is the latest attempt by several within the American judiciary complex to stigmatize the Federalist Society, likely out of distaste with its growing role in legal discourse.
The drafted document attempts to purport a spirit of equanimity by banning membership in both the Federalist Society and ACS, but the effort is largely illusory. The ACS gets its hands wet on a host of issues, often filing amicus briefs in cases and assuming highly public positions on certain issues. Take, for instance, the fact that the ACS assembled a “vacancy toolkit” in order to cajole people to resist Brett Kavanaugh’s Supreme Court nomination. And that is just one flourishing example in an ocean of many.
Meanwhile, in the nearly four decades of its existence, the Federalist Society has never once filed an amicus brief stating its position, and it does not take stances on legislative action, executive action, or judicial nominations.
The current legal framework in this country caters primarily to a liberal perspective — left-of-center law students have a menagerie of outlets for discussing legal issues from a more progressive perspective, whether in the form of student groups, legal mentors, or lecture content. For conservative and libertarian law students, we have the Federalist Society. That’s it.
Thus, it is no wonder that the committee seems oddly vested in undermining the legitimacy of the organization, which has served as a right-of-center lighthouse for many law students, like myself, who would have otherwise found themselves intellectually starved by the lack of philosophical diversity amongst law school faculty. At Georgetown University Law Center, we have four registered Republicans on a full-time faculty of more than 120 professors. And we have one of the best Republican-to-Democrat ratios among the Top 14 law schools.
Given education is the Federalist Society’s primary focus, it serves a community-wide purpose, as well. For almost every Georgetown Federalist Society event that deals with a particularly contentious legal issue, we make a concerted effort to find thoughtful speakers on both sides of the debate. In other words (and in a rather corny, but accurate turn-of-phrase), the Federalist Society expands intellectual horizons, exposing students to opinions they would be unlikely to hear in their legal classrooms due to the sheer dearth of political diversity amongst most law school faculties.
To the disgruntled realization of many, the makeup of the federal judiciary is shifting in such a way that the ability to understand conservative or libertarian judicial philosophies is not only intellectually additive but indisputably critical. By undercutting the legitimacy of the Federalist Society, the committee will be undermining one of the few educational institutions available for students to help them wrestle with forms of jurisprudence that might otherwise remain totally foreign to them.
As a current law student and board member of Georgetown’s chapter of the Federalist Society, I am deeply disappointed to see the committee engage in what amounts to the suffocation of any judicial philosophies that do not resonate with large portions of the left. Randy Barnett, Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center (GULC) and Director of GULC’s Center for Constitution, commented, “The judges who have politicized the Committee on Codes of Conduct in this way should be ashamed of themselves. Because they are losing the war of ideas, they are using whatever levers of power at hand to undermine diversity of thought and discourse.” Professor Barnett continued. “This is a scandal requiring a thorough house cleaning.”
Via the Federalist Society, I met some of my closest friends at Georgetown who, shockingly, harbor a variety of opinions on a host of issues. Although we may not agree on the answer to every legal question, we share an intellectual curiosity and general thirst for something beyond the rote, often highly liberal bend in academia. We debate ideas with the nuance we wish existed in other corners of the legal realm, and it’s thoroughly disturbing to see some so eager to destroy that under the alleged auspices of impartiality.