Five reasons why the federal judiciary’s proposed ban on Federalist Society affiliation is a terrible idea

The Wall Street Journal reports today (through a staff editorial) that the Judicial Conference of the United States is considering banning federal judges from affiliating with either the libertarian/conservative leaning Federalist Society or its left-leaning counterpart, the American Constitution Society (ACS). The proposed ban comes out of one of the Judicial Conference committees, the Committee on Codes of Conduct, which addresses issues of federal judicial ethics.

According to the editorial, the current draft of the proposal states, in part:

“In sum, the Committee advises that formal affiliation with the ACS 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 [of Conduct for United States Judges]…”

“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.”

Given the ongoing efforts of both major political parties to politicize the judiciary, it’s not hard to see why the Committee is sensitive to the organizational affiliations of its judges. But this idea (assuming it is being correctly reported) is both impractical and unwarranted, for at least five reasons.

First, the proposed rule mischaracterizes the work of the Federalist Society and ACS by caricaturing them as purely partisan institutions. But this is not the case, as I know from years of experience as a faculty advisor to the respective student chapters of both organizations here at New England Law. The Federalist Society in particular has a large and impressive list of speakers who travel to law schools across the country and engage students in fascinating and robust discussions on a wide range of non-partisan topics. In the past few years, my students have been treated to Richard Epstein’s views on intellectual property law, Ilya Somin’s take on “foot voting,” and Paul Clement’s perspective on Supreme Court advocacy, all courtesy of the Federalist Society’s network. I can confidently say that if not for FedSoc, the students would not have these types of rich, interactive opportunities on such a regular basis. And while ACS, in my view, has not been as strong in this area, it too has provided us from time to time with excellent speakers on important legal topics. Moreover, both student chapters at my school (with apparent support from their respective umbrella organizations) have maintained deep and respectful ties with one another, typically co-sponsoring at least one event each year. It is simply short-sighted to ban judges from affiliating with organizations whose primary mission is to meaningfully develop the next generation of lawyers.

Epstein FedSoc-IPLA event 3-13
New England Law student leaders with Richard Epstein and your humble blogger, March 2013.

Second, the proposed rule is underinclusive, in that it does not ban judicial affiliation with a host of other legal organizations that have adopted positions on politically sensitive issues. As Gail Heriot notes here, a proposal that targets the Federalist Society and ACS without also including the ABA, various affinity bars, and organizations with similar histories of political engagement comes across as myopic and invites public cynicism.

Third, the proposal suggests a certain cowardice on the part of the judiciary. It is true that the legitimacy of courts depends in large part on the perception that they are fair and impartial. But judges already restrict their social and political activities in service to that perception, and the proposed additional restrictions do not address a new or significant problem. More to the point, the courts will not preserve their legitimacy by flinching every time they are accused (however cynically) of impartiality, and doing so will only embolden their accusers. Indeed, as I recently wrote for The Hill, the courts should be more aggressive about asserting their rightful place as a separate and co-equal branch of government. This proposal is a step backward.

Fourth, a rule like this will create a serious internal headache for the courts. It will invite litigants to seek recusal or disqualification of sitting judges based on their past affiliations with ACS or the Federalist Society. It will also invite litigation from judges themselves — an extra headache that might generate its own recusal issues (since any federal judge who might hear the case would necessarily have a stake in its outcome). And while the Supreme Court has not been shy about taking judicial challenges to state-level restrictions on speech and association, it would be an altogether more difficult matter for them to have to rule on their own organization’s rules of conduct.

Fifth, the proposal creates a classic slippery slope. If judges are barred from officially affiliating with two well-known, national legal organizations, future bans on other organizations cannot be far behind. It is not hard to imagine, for example, the proposal being extended to prohibit judicial affiliations with universities, civic groups, and other private organizations that adopt or advocate even a single policy that could be deemed controversial — a sort of “cancel culture” of the courts’ own making.

In the end, what kind of judicial aspirant would seek such a restrictive lifestyle? Especially in conjunction with the increasingly testy confirmation battles in the Senate, it is not hard to predict that fewer and fewer quality candidates will want to enter the federal judiciary. And those that do will have less and less civic experience upon which to anchor their judicial decisions. The entire judiciary will suffer.

Back in 2006, the Colorado Bar Association spearheaded a campaign to defeat a ballot initiative that would have imposed retroactive term limits on state judges. The bar’s slogan for the campaign was straightforward and rather elegant: “Bad Idea. Serious Consequences.” The same could be said for this proposal. Assuming the characterization is accurate, I hope the Judicial Conference will reject it out of hand.