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The Federalist Society is Under Attack (Again)

The Federalist Society is Under Attack (Again)

Committee on Codes of Conduct of the Judicial Conference of the United States has circulated a draft concluding that membership in the non-partisan Federalist Society by judges, law clerks, and staff attorneys is improper

As has been widely reported, a recently-released draft advisory opinion of the Committee on Codes of Conduct of the Judicial Conference of the United States—a 15-member group of judges responsible for fashioning and interpreting ethical rules applicable to the federal judiciary—concluded that membership in the non-partisan Federalist Society by judges, law clerks, and staff attorneys is improper because the group’s ideological orientation would call its members’ impartiality into question.

The draft ethics opinion, which was reportedly leaked, is subject to internal discussion within the Committee during a 120-day comment period ending on May 20. For the purposes of full disclosure, I am a longtime member and supporter of the Federalist Society.

The draft opinion included the American Constitution Society, a liberal counterpart to the Federalist Society, in the membership ban. For inexplicable reasons, the draft opinion did not extend the ban to the American Bar Association, even though that left-leaning organization—unlike the Federalist Society—advocates political causes, engages in lobbying, files amicus briefs, and adopts resolutions on a broad range of public policy topics. The ABA essentially serves as a liberal special interest group, but judges are still permitted to be a member while serving on the federal bench.

Many commentators have criticized the draft opinion, which reverses the Committee’s 2007 position which treated the ACS as indistinguishable from the ABA. Critics of the draft opinion include the Wall Street Journal (in a pair of hard-hitting editorials), Carrie Severino and Ed Whelan in National Review, and Erielle Davidson in The Federalist. The Wall Street Journal called the draft opinion “political mischief masked in high-sounding rhetoric.” Attacks on the Federalist Society are not new. Over two decades ago, former ABA president Jerome Shestack (who, while serving on the ABA’s judicial appointments committee, joined the minority in rating Robert Bork “not qualified” for the U.S. Supreme Court) condemned the Federalist Society in the National Law Journal as an “extremist right-wing group.”

When I was still practicing law in California, I responded to Shestack in a 1999 article in the American Lawyer Media publication Cal Law, entitled “Hey, Hey, ABA—How Many Federalists Did You Smear Today?” I pointed out that the Federalist Society is a mainstream organization that promotes—typically through open debate—ideas central to the Founding: judicial fidelity to the Constitution, maintaining federalism and the separation of powers, and upholding the rule of law. These ideas are, in the abstract, hardly controversial and certainly do not constitute—as the draft opinion contends—“advocating…conservative causes.” Alas, political discourse has become even more polarized in the subsequent 20 years, and the “cancel culture” has become even more entrenched.

Still, one is prompted to wonder: What is going on? The answer, in my estimation, is that the Left, having gained hegemony in many influential spheres of American life—the mainstream media, Hollywood, academia, the legal establishment, and even commerce (as evidenced by Goldman Sachs getting “woke”)—has grown frustrated at its failure to extinguish the opposition in legal academia. Despite numerical domination on the faculty of elite law schools—so overwhelming at some schools as to constitute an insular echo chamber—progressives have failed to conquer the conservative-libertarian remnant. Indeed, thanks in large part to the spirited debates sponsored by the Federalist Society since its founding in 1982, various progressive fads such as critical legal studies (and its various spin-offs, such as critical race theory), deconstructionism, and creative theories in favor of construing the Constitution as a “living” document have failed to gain significant traction outside of the fever swamp of law school faculties.

To the contrary, originalism has become the most accepted theory of constitutional interpretation (even by some scholars on the left), the judiciary—buoyed by Republican-appointed judges—soberly ignores legal academia’s entreaties, and, most frustrating of all, the American public stubbornly hews to the traditional notion that judges should apply the law, not make it up—thereby rejecting the past 70 years of activist legal scholarship. Since left-of-center lawyers predominate in large law firms, the organized bar, and the many “public interest” litigation groups engaged in advocacy, they are no doubt disheartened by witnessing the confirmation of an unprecedented number of federal judges during the administration of a president whom they vociferously despise. To rub salt in the wound, many of Trump’s judicial appointees were members of the Federalist Society.

What do these liberal lawyers do when they can’t win a debate or prevail in an election? They resort to name-calling, try to silence their critics, and de-legitimize the opposition through collateral attacks. President Trump and the Republican-controlled Senate have overcome the Left’s frontal assaults to confirm two committed originalists on the Supreme Court. That Leonard Leo, formerly Executive Vice President of the Federalist Society, took a leave of absence from the organization to advise Trump on his Supreme Court appointments put a target on the group’s back. The draft ethics opinion—produced by a committee that includes the chairman of the ABA’s Appellate Judge Conference and a former plaintiffs’ lawyer from Rhode Island who contributed nearly $700,000 to Democratic candidates before being appointed to the district court by President Obama—is obvious pay-back for having been beaten on the merits.

If the draft opinion becomes final—and it is unlikely that it will—federal judges and their clerks will be forced to disassociate from the Federalist Society, something liberal activists apparently believe will reduce the prestige and influence of the group. What the Left doesn’t understand is that the power wielded by the Federalist Society consists of its timeless ideas—the legacy of the Framers, as signified by the group’s symbol, the silhouette of James Madison. Unless the partisan proponents of this ill-conceived campaign of retaliation are able to suppress The Federalist Papers and squelch debate (which is increasingly happening on college campuses nationwide), it is nothing but a mean-spirited cheap shot at a venerable group that has stymied the Left’s goal to control the nation’s legal discourse.

The Wall Street Journal warned that “The judiciary doesn’t need another a political black-eye, this time over rules issued by insiders and clearly aimed at restricting the right of association of students, lawyers and judges with originalist legal views.” That was the shot, followed a few days later with this chaser:

The political left wants to bar judges and clerks from Federalist Society ranks so that belonging to the group will become politically anathema. Democrats will wave the draft ethics rule, if it is adopted, as a bloody shirt against judicial nominees who have belonged to the Federalist Society.

All of this risks tarnishing the reputation of the judiciary as even-handed and nonpartisan. Chief Justice John Roberts, who ultimately supervises the Judicial Conference, should tell the Codes of Conduct Committee to stop this dirty political business.

Chief Justice Roberts, understandably preoccupied at the moment, will soon confront another controversy.


Mark Pulliam is a contributing editor at Law & Liberty who blogs at Misrule of Law. A 30 year veteran of BigLaw, he now writes for a variety of publications.

This post originally appeared at Law & Liberty website.


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StandingAthwartHistory | January 31, 2020 at 7:39 am

If it becomes final, I foresee Senate confirmation hearing questions like, “Are you now or have you ever been a member of the Federalist Society?” The lack of self-awareness is strong with them.

Who thinks Justice Roberts doesn’t agree with this idea? I think he does.

    Milhouse in reply to herm2416. | February 2, 2020 at 1:49 am

    WTF are you on? Roberts is a Federalist Society person, why on earth would you think he would support such a motion?

Interesting how something as seemingly trivial could really become a festering problem. When few are paying attention, fundamental anticonsitutional weapons are planted and root until becoming impossible to root out. This one cuts right to the heart of the battle to re-establish constitutional law in America. The one-worlder socialists never quit.

I love the smell of Fascism in the morning….

Sounds like a reasonable lawsuit against this.

If not, let President designate them as a terrorist organization and let them try to fight their way out of that.

    Milhouse in reply to Uncledave. | February 2, 2020 at 1:50 am

    a) Designate whom? The Judicial Conference of the United States?!

    b) The President can’t designate domestic organizations as “terrorist”. There is no such designation.

I thank the committee (and your attention to their terrible political stunt) for motivating me to reactivate my membership in the Federalist Society. Done and done.

Lost among far too many is the overarching purpose of the Constitution = to limit the created government so as to maximize personal liberty. We as conservatives want the Constitution strictly read. If the created government needs more power, let the case be made and then put the proposal in front of the people. The Framers anticipated this possibility by including an amendment process (Article V).

For the left, government is always to be expanded. Their default setting = if the Constitution doesn’t say expressly that such-and-such can’t be done, then such-and-such can be done.

The Framers put in the 10th Amendment to underscore our point of view, but for the left the 10th is seen as a great big ellipsis,

“Article X, . . .”

as if it weren’t there.

the “anti Federalists” wanting rid of the Federalists. We spent too long fighting the USSR and not enough time fighting their stand ins at home.

This is not new; it’s merely a new front in a long-running battle. A battle the Left has been winning, BTW. Take a gander at what California judges face. In the late 90s, a very nice Christian Democrat judge I appeared before began openly speculating when he would have to choose between his faith and his profession. He died unexpectedly, so he never had to choose, but he wouldn’t be able to be a judge today (he was very active in the [now defunct] Boy Scouts, for example.)

Keep her away from policy, but hire Tulsi Gabbard to lead the fight.

As Daniel Greenfield commented in his blog, The Point (, “The Left doesn’t deal with setbacks by waiting four years. It figures out new angles of attack. And yes, it’s coming after conservative lawyers.”

For anyone who wants to express an opinion defending the freedom of association of law clerks and practicing attorneys to join either the Federalist Society or the American Constitution Society (yes, they want to ban membership in both):


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