By Dropping FedSoc/ACS Advisory Opinion, Judiciary Does Exact Thing Its Ethics Committee Is Supposed to Guard Against: Make the Judiciary Look Partisan

Fix the Court is lamenting the judiciary’s feckless decision today to table a draft advisory opinion that would have prevented federal judges from being paid members of and taking on leadership roles in the liberal American Constitution Society and the conservative Federalist Society. The opinion was clear not to counsel against attendance and participation in ACS or Fed Soc events.

“The Codes Committee’s decision to stand down in the face of a one-sided, partisan pressure campaign underscores the very reason such an opinion is necessary,” FTC executive director Gabe Roth said. “But the result doesn’t change the facts. Judges who maintain formal affiliations with these organizations send signals to the public they’re active players on one of two ideologically motivated teams. There’s nothing wrong with having these teams, but judges should refrain from putting on either side’s uniform.”

The decision to drop the opinion was described in a memo sent to all Article III judges by AO Director Jim Duff this afternoon. A source close to the Codes Committee told FTC last week that its judges met virtually on July 21 and 22, though until today’s announcement, it was unclear what decision, if any, had been reached regarding the opinion.

That the draft came to light in January after a leak to the Wall Street Journal editorial page underscores the very point the draft makes – that partisans view and understand ACS and Fed Soc to be fellow ideological actors in a broader political movement. In February, FTC submitted a statement to the Committee co-written by Roth and FTC senior researcher Tyler Cooper supporting the draft, saying, “The response this opinion has received [in the Journal] should only strengthen the Committee’s resolve. Whether its members feel safe in advancing it will show whether the legal community has the strength to stand up to political actors seeking to break it.”

FTC often co-sponsors law school events with Fed Soc and ACS but has become increasingly concerned with their perceived partisanship in recent years and lack of effort to mollify such concerns. All 23 appellate judges who spoke at last year’s Fed Soc convention, for example, were appointed by Republican presidents, and all but one who spoke at ACS were Democratic appointees.