In the musical Hamilton, Aaron Burr is asked by Alexander Hamilton to participate in drafting a series of essays, now known as the Federalist Papers, to help define the contours of a new Constitution. Although Burr recognizes the need, he declines Hamilton's entreaties. He opts for safety, waiting to see which way the wind blows.
In a case of life imitating art, this is just what a committee of 15 federal judges, all appointed by Chief Justice John Roberts, did when confronted with a serious ethical issue that has long-term consequences to the integrity of the judiciary.
The Codes of Conduct Committee is charged with providing ethical guidance to federal judges. Public respect for the integrity of the judiciary provides the moral authority to resolve disputes and enforce compliance with court decisions. The all-important reputation for judicial integrity is easily damaged by public perception that a judge is less than fair or is overtly political. Hence, the Codes of Conduct bar judicial political activity.
In 2018, the committee issued Opinion 116, which formally advised judges of something the public already knows-that "political activity" is more than self-labeling as a Democrat or Republican. The committee advised judges to stay away from organizations that: (1) are associated with "hot button" political issues, or as perceived by the public as having adopted a consistent political or ideological point of view equivalent to the type of partisanship found in political organizations; and/or (2) are funded by dark money or sources affiliated with politically involved organizations. Opinion 116 did not identify any specific organization by name.
This past January, the committee released Draft Opinion 117 for comment by federal judges. This was little more than a natural evolution of Opinion 116, except it named specific organizations. The draft dealt with membership in the Federalist Society; its liberal counterpart, the American Constitution Society; and the American Bar Association. The draft specially barred judges from membership in the Federalist Society and the ACS.
In response to Draft Opinion 117, the Federalist Society launched an assault to discredit the committee's work. In addition to the usual conservative media suspects, the Federalist Society got Justice Clarence Thomas to jump in and mobilized its allies in Congress to put pressure on the committee. It submitted a letter rubber-stamped by about 200 federal judges, primarily but not exclusively members of the Federalist Society and most of whom owed their recent appointment to the federal bench to membership in the Federalist Society. The Federalist Society is not a political organization, it claims, because it does not take positions on legislation. Instead, it is merely a debating society.
Legislative advocacy, however, is not the test to define the propriety of judicial participation in organizations engaged in public policy debates, as set out in Opinion 116. Public perception of the organization is. This means that when a judge is a member of the Federalist Society, does the public think the judge is a Republican or a Democrat? A liberal or a conservative? An internet search of "Federalist Society" quickly identifies the political affiliation of the group. The committee also received a letter signed by 29 U.S. senators, blasting the draft and supporting the Federalist Society. Who would have guessed that none of these signers were Democrats? The committee and the Administrative Offices of the U.S. Courts were threatened with investigation by Rep. Jim Jordan-one of the most outspoken members of the conservative Freedom Caucus in the House of Representatives-if the proposal was not withdrawn. To say that the Federalist Society is not a "political organization" as defined in Opinion 116 is to engage in willful blindness.
Just as important, Opinion 116 also bars judicial involvement with organizations of questionable funding. The Federalist Society is not transparent about its financing. However, the evidence that exists shows it is affiliated through a patchwork of intertwined boards of conservative organizations created specifically to target the federal judiciary. This patchwork has spent hundreds of millions of dollars to capture the federal judiciary, much from conservative and dark money sources. No proponent of Federalist Society judicial membership has ever explained a path around the financial restrictions imposed by Opinion 116. In the draft, this was one of the reasons the committee barred judicial membership in the Federalist Society. Proponents of judicial involvement in the Federalist Society just ignore this issue, hoping no one would notice the 800-pound gorilla in the room.
The committee, late last month, capitulated. It withdrew its draft for no stated reason other than a lack of agreement by judges submitting comments. At least one member of the committee was a member of the Federalist Society, who publicly expressed early on in the process that she had made up her mind regardless of what the group might produce together. Apparently, the committee took the easy way out and transformed itself into a nose-counting organization, adopting the wait and see which way the wind blows process of decision-making. As was true with Burr, this was a shameful abdication of responsibility.
In the end, the committee simply could not withstand the Federalist Society's well-financed and organized attack. Still, I was surprised the committee's retreat. When I was a federal judge, I was surrounded by judicial colleagues who made difficult decisions. Some of these decisions came at great personal cost to these judges, requiring months of follow-up protection services. Yet, this committee could not withstand political pressure directed at them by the Federalist Society gang.
Rather than providing ethical guidance-the reason for the committee's existence-the committee's retreat produces confusion. The withdrawal of the draft left Opinion 116 fully intact, which describes the Federalist Society in all but name as a prohibited organization. Moreover, there is a certain irony about the success of the Federalist Society's efforts to cow the committee. Draft Opinion 117-which has now been withdrawn-tried to split the baby on the Federalist Society. The draft purported to permit judges to participate and attend Federalist Society meetings, notwithstanding the political and financial bars outlined in Opinion 116. The draft simply banned membership. When the draft initially came out, a prominent leader of Federalist Society took great glee that it permitted judicial participation, even though he disagreed on the membership ban. However, withdrawal of the draft now leaves Opinion 116 as the best source to answer whether judges can participate or attend Federalist Society meetings. The answer, according to any fair reading of Opinion 116, is clear. Judges need to stay away from organizations involved in hot button political activities or which are viewed by the public as having adopted a consistent political point of view equivalent to the type of partisanship often found in political organizations. Judges also must steer clear of organizations funded by dark or ambiguous money sources. This is the perfect definition of the Federalist Society. Withdrawal of the draft removes the specific "safe harbor" some judges may have used to justify participation with the Federalist Society.
Everything, though, is now left to the individual discretion of each judge regarding attendance and membership in the Federalist Society and its counterpart, the ACS. The unethical ones will pretend that Opinion 116 does not exist and will continue attending and joining as members in the Federalist Society. While these judges cannot be card-carrying members of the Republican Party, they believe they can be card-carrying leaders of the Federalist Society. Who do they think they are fooling with this distinction?
Almost all judges I knew while serving were people of integrity. Unfortunately, their reputations are now also stained by the committee's cowardice, as the judiciary becomes even more politicized. This cowardice is now part of the committee members' legacy, surely as significant as any individual judicial decision they have made.
The Federalist Society does not need judicial involvement or membership to continue as a "debating society." However, this judicial membership damages the judiciary. Chief Justice John Roberts was wrong when he said we don't have Obama or Trump judges. Just look for the card-carrying Federalist Society members. You'll know.
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