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HAMMER: Chief Justice Roberts Must Overrule The Judiciary’s Proposed Assault On The Federalist Society
Chief Justice John Roberts
David Hume Kennerly via Bank of America/Getty Images

Since its founding in 1982, The Federalist Society (FedSoc), the nation’s leading conservative/libertarian legal group, has been a simply remarkable success story. And due to its breathtaking success in inculcating constitutionalist fidelity in a generation of law students and genuinely impacting the shape of the federal judiciary, it is perhaps true that no organization alive today better encapsulates the “vast right-wing conspiracy” that once drew the ire of a younger Hillary Clinton.

The Left, which holds a special disdain for FedSoc due to both its influence and its success in countering the erstwhile ubiquitous (and still overwhelming) leftist groupthink pervading the legal profession, has been on a particularly vicious anti-FedSoc warpath throughout the entirety of the Trump presidency. The Trump administration’s judicial nomination machine is a behemoth, and the Left despises the organization most responsible for steering this new generation of judges toward the direction of constitutional originalism. Indeed, the Left would like nothing more than to take down FedSoc.

Unless Supreme Court Chief Justice John Roberts now intervenes, the Left may come about as close to achieving its goal as it could feasibly get.

The Judicial Conference of the United States, an arcane body established by Congress and led by the chief justice of the Supreme Court, is responsible for helping establish the national policy guidelines that govern the administration of the federal courts. In addition to the chief justice, the Conference consists of a cross-section of judges from the many federal courts.

Alas, the Conference is arcane no longer. Over the past week, the Conference’s Committee on Codes of Conduct, which oversees federal judicial ethics, has forced a national conversation by launching an absolute wrecking ball of a draft advisory opinion. The Committee, which is chaired by Judge Ralph Erickson of the Eight Circuit Court of Appeals, has 15 total members: Eight Democratic presidential nominees, five Republican presidential nominees, and two others (a bankruptcy judge and a magistrate judge).

The Committee’s advisory opinion, if formally implemented by the Committee, would “advise[] that formal affiliation” with both FedSoc and the American Constitution Society (ACS), FedSoc’s (much) more overtly political progressive counterpart, “is inconsistent with” the governing Code of Conduct for United States Judges. Specifically, the Committee states that “although neither [FedSoc nor ACS] is a ‘political organization'” under the Code, “their activities nevertheless implicate [the Code’s] broad prohibition against political activity” — whatever that is supposed to mean. What’s worse, the draft opinion also holds that federal judges’ law clerks and staff attorneys must not join either FedSoc or ACS. But on the other hand, membership with the leftist, remarkably biased American Bar Association (ABA) “does not raise these same concerns and is not necessarily inconsistent with the Code.”

Where to begin?

First, as has been pointed out by both The Wall Street Journal editorial board and the Judicial Crisis Network’s Carrie Severino, there is simply no comparing FedSoc and ACS in terms of their respective levels of “political activity.” I have been a (literally) card-carrying FedSoc member since I began law school at the University of Chicago, was a three-year board member of my law school’s chapter, and now serve as a FedSoc campus speaker. I am intimately familiar with this organization, and have benefitted from it in many different ways. In short, there is no such thing as a FedSoc “position” on any given legal, let alone political, issue. The organization stands for one unifying proposition and one unifying proposition only: Words, as used in legal texts such as constitutions and statutes, have discernible meanings. That is truly it. FedSoc routinely hosts debates where one member debates another; what’s more, constitutional originalists ourselves frequently disagree when it comes to interpreting any number of constitutional or statutory provisions. By contrast, at the time of the Brett Kavanaugh Supreme Court nomination battle, ACS’s president publicly opposed the nominee. ACS also flaunts specific legal briefs, has an aggressively politicized social media presence, and issues press releases on such über-politicized things as presidential impeachment. As such, any comparison between FedSoc and ACS amounts, as the Journal’s editorial board recently put it, to a “false equivalence.”

Second, even holding aside the organizations’ competing merits and demerits, attempting to neuter both FedSoc and ACS in one fell swoop harms FedSoc and the cause of constitutional originalism far more than it harms ACS and the cause of “living constitutionalism.” ACS was founded 19 years after FedSoc, and it has never come even remotely close to FedSoc in terms of influence, prestige, network, membership, or any of the other metrics by which to assess organizations such as these. There are multiple reasons for this. Liberals have controlled the legal academy, the federal judiciary, and the legal profession alike for most of the past century. FedSoc, accordingly, was founded to help supply a hugely under-served market: Right-leaning law students and lawyers. FedSoc, and the law professors and judges who came up through its ranks, thus presents a desperately needed counterweight to the sclerosis of leftist legal academia. ACS’s entire mission is therefore effectively duplicative and unnecessary; at the time of ACS’s founding, the Left still dominated the legal profession. Furthermore, FedSoc’s overwhelmingly simple and easily relatable mission statement also stands in sharp contrast to the nebulous, transparently outcome-oriented nostrums peddled by ACS. The inclusion of FedSoc as a subject of the Committee’s wrath — and, by downstream effect, a subject of increased ostracism on the law school campus — would thus disproportionately undermine the academic and intellectual integrity of legal education and the legal profession much more than does the inclusion of ACS.

Third, it is ludicrous for the Committee to let the ABA off the hook. The ABA, which has brazenly attempted to claim many high-profile Trump judicial nominee scalps, is institutionally controlled by leftist trial lawyers and bigwig Democratic Party donors. The ABA, unlike FedSoc, “takes positions on countless legal subjects, invariably on the political left.” The ABA has a “House of Delegates” that, going back to the 1970s, actually passes many resolutions taking formal positions on all the hot political issues of the day. Surprise, surprise: The ABA always comes down on the left side of a given issue. As Severino observes, the ABA’s current list of “Legislative Policies” advances actual legislative proposals “spanning such varied subjects as admiralty law, criminal procedure, energy, medical malpractice, public contracts, and tax.” It even files legal briefs on cases on issues as highly charged as abortion. There is no sane world in the ABA is somehow less “political” than FedSoc, which does precisely none of the above — preferring instead to focus on preaching the scandalously bold sole message that texts ought to be interpreted according to their original public meanings.

Finally, and arguably most importantly, the career consequences of this proposed Committee opinion for law students, law clerks, and young lawyers alike is nothing short of tragic. Marking FedSoc with such an institutional scarlet letter as this would tremendously disincentivize those at the start of their legal careers from joining the organization, lest they be seen as too “political” for the judges who might one day look to hire them for prestigious clerkships. As such, fewer law students will populate FedSoc chapters, and the powerful national FedSoc network of law students, lawyers, academics, and judges would be depleted as the risk-averse among us run for the hills en masse. Right-leaning law students hoping to clerk for right-leaning judges would be put at a tremendous disadvantage, as they would have diminished opportunities to network and formally interact with those who might hire them; left-leaning law students, of course, would hardly be hurt at all by the slap to ACS, because the clerkship hiring bureaucracies in elite law schools are already unilaterally stacked leftward. Intellectual diversity in the classroom will also be hurt, as lonesome conservative students might be less willing to voice their viewpoints out of fear they might harm their career advancement than they otherwise would be. As a consequence, the Committee’s ostensible attempt to de-politicize the judiciary would have the unintended consequence of only further politicizing the state of legal discourse at the nation’s law schools, and within the legal profession more broadly, by ensuring that there is no viable counter-programming to stand athwart otherwise-monolithic legal leftism.

The Committee’s proposed draft opinion amounts to nothing less than a travesty. By purportedly attempting to de-politicize the judiciary, the Committee has inadvertently risked only further politicizing and tearing asunder the legal profession. But it is not yet too late. Chief Justice Roberts, who heads the Judicial Conference, can still not-so-subtly tell Judge Erickson and the rest of the Committee to preemptively put the kibosh on this destructive endeavor. For the sake of all parties involved, Roberts — who values perhaps nothing more than he does institutional integrity and preservation of the federal courts’ alleged de-politicization —  must take a brief break from his Senate impeachment trial presiding officer duties and do so immediately.

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