Wednesday, January 29, 2020

Does membership in the Federalist Society or American Constitutional Society undermine the appearance of judicial impartiality? (Michael Simkovic)

A draft judicial ethics advisory opinion would discourage judges and their clerks and staff attorneys from being members of either the conservative/libertarian Federalist Society or the liberal/progressive American Constitutional Society because of concerns that membership in such overtly ideological / political organizations could create an appearance of partisanship that could undermine perceptions of judicial impartiality.  The rules would permit speaking at or attending Fed. Soc. or ACS events.  The ABA Journal and Bloomberg covered the story.

The draft was intended for comment by members of the judiciary only, but was leaked to the conservative National Review, which opposes the draft advisory opinion.  The Federalist Society has four times as much money as ACS and is generally perceived to be more active and effective than the ACS.  Thus a rule banning membership in both organizations would likely hurt conservatives more than liberals.

The National Review accuses the American Bar Association, which does not have an explicitly ideological or political mission, of being a "liberal" organization and argues that if membership in Fed. Soc. is banned, then membership in the ABA should also be banned.  The ABA has previously responded to accusations of political partisanship by arguing that cherry picked examples of ostensible support for liberal positions overlook ABA activities that could be construed as conservative, such as ABA positions on corporate taxation.

Conservatives have previously claimed liberal bias by corporate owned media, elite universities, climate scientists, engineers, medical doctors, teachers, Youtube, Facebook and Google, the Pope, the Federal Reserve, country music, coffee shops, the military and the CIA.

https://leiterlawschool.typepad.com/leiter/2020/01/does-membership-in-the-federalist-society-or-american-constitutional-society-undermine-the-appearanc.html

Guest Blogger: Michael Simkovic | Permalink