In a recent draft advisory ethics opinion, the Committee on Codes of Conduct of the U.S. Judicial Conference advises federal judges against affiliation with the conservative Federalist Society and the progressive American Constitution Society.
Membership in said groups, according to the opinion, raises concerns over impartiality and diminishes the public’s trust in the independence of the judiciary as a whole. The opinion further advises that federal judges’ membership in the ABA’s Judicial Division is not problematic, as this does not raise similar concerns of impartiality.
First, the draft advisory ethics opinion dismisses the notion that the two partisan legal advocacy groups, Federalist Society and American Constitution Society, are not in fact “liberal or conservative in a political sense[,]” noting that both organizations reference their ideological foundations in their own published descriptions.
Next, the opinion advises that even if the groups could be said to avoid affirmatively political partisanship, the general public is unlikely to appreciate this. The Committee on Codes of Conduct of the U.S. Judicial Conference references Advisory Opinion No. 116, noting that “judges should be mindful of whether an organization ‘is generally viewed by the public as having adopted a consistent political or ideological point of view equivalent to the type of partisanship often found in political organizations.’” Drawing on Canon 4 of the Code of Judicial Conduct, which proscribes “extrajudicial activities that ‘reflect adversely on the judge’s impartiality[,]’” the opinion advises that federal judges should not compromise their impartiality by sustaining membership with either group.
Moreover, the opinion advises that judicial membership in the ABA’s Judicial Division is distinguishable from membership in the two partisan groups. The ABA’s core objectives are rooted in equality and, therefore, any controversial stances taken by the group are ancillary to those core objectives. However, the opinion warns that judges should continue to carefully monitor the activities of the ABA to determine whether membership remains consistent with the Canons.
Lastly, the opinion advises that judges are free to participate in speaking events or panel discussions hosted by any of the three groups, as this does not necessarily suggest support for a group’s views.
For more information, follow this link to read the full text of the ethics advisory opinion.
