An attempt to block conservatives

The 15-judge Committee on Codes of Conduct of the Judicial Conference of the United States has circulated to all federal judges “for review and comment” a draft opinion that, although seemingly evenhanded, is disturbing and perhaps cynical.

To reasonable readers, the draft seems tailored to injure the Federalist Society. Without necessarily imputing to the committee this purpose, the proposed code of behavior for federal judges, if adopted, would have the predictable effect of discouraging membership in the society that has challenged the American Bar Association’s preeminence in the nation’s legal culture.

Since 1982, when the Federalist Society was born out of a conference at Yale Law School, it has contested liberalism’s hegemony in the legal profession. The society’s unchanging aim has been to leaven with conservatism — through forums and debates — the student bodies and professoriates of the most prestigious law schools, whose graduates clerk for federal judges, and whose law reviews shape the nation’s jurisprudential conversation. Now the committee on “codes of conduct” proposes to declare judges’ membership in the society to be ethically problematic — actually unethical — conduct.

The draft opinion also disapproves of judges’ “involvement” with the American Constitution Society, but this is transparently tactical balancing: The ACS is much smaller and less consequential than the Federalist Society it was launched in 2001 to emulate. A Quixote in search of a windmill, the ACS exists for the unheroic task of defending a congenial status quo, liberalism’s dominance of the legal culture.

In “The Rise of the Conservative Legal Movement” (2008) Steven M. Teles documents how the Federalist Society burgeoned as part of the “conservative countermobilization” against the entrenchment — in elite law schools and firms — of post-New Deal legal liberalism, which still embraces an activist state, and equality rather than liberty as “the central constitutional value.” Entrenchment was deepest at ideologically monochrome law schools where the faculty is tenured and self-reproducing, and in public-interest law firms lavishly backed by the Ford Foundation.

The Federalist Society has been scrupulous about what Teles calls “boundary maintenance”: Facilitating members through networking and the development of conservative ideas “rather than directly influencing the actions of government itself.” The society has taken an “indirect approach to legal change,” rather than litigating and lobbying. Only people unfamiliar with the many (and often discordant) flavors of conservative legal thought (originalism, textualism, judicial restraint, judicial engagement, etc.) can believe that the society possesses and enforces an orthodoxy.

The authors of the draft opinion are probably concerned about the perception of the judiciary as drenched in politics. This perception was deepened by liberals’ successful mass mobilization in opposition to Ronald Reagan’s 1987 nomination of Robert Bork (Yale Law professor and then judge on the D.C. Circuit Court of Appeals), and by Senate Republicans’ shabby refusal in 2016 to give Barack Obama’s Supreme Court nominee, Merrick Garland, hearings and a vote.

The draft opinion’s real purpose, however, is revealed by its conclusion that judges’ involvement with the American Bar Association is not problematic. The opinion’s authors are right that judges must have a sense of boundaries: They should avoid involving themselves with organizations that, for example, file amicus briefs to influence courts’ deliberations. But the ABA, unlike the Federalist Society, does this.

The draft opinion concedes that the ABA advocates “for particular constituencies, causes, or agendas.” Ed Whelan, president of the Ethics and Public Policy Center, calls this “an astounding understatement”: The ABA’s Washington lobbying office advocates many policies, some unconnected with the practice of law. And it has a Grassroots Action Center that mobilizes support for (mostly liberal) causes.

The Federalist Society has always been (according to a founder, Steven Calabresi, a professor at Northwestern University Law School) a “conservative university without walls.”

Unfortunately, the draft opinion is congruent with practices rampant in lesser universities: It serves those who prefer to injure and exclude rather than debate and refute intellectual adversaries.

Teles says the Federalist Society has always understood this: “Changing legal culture required shaking the self-confidence of liberal lawyers by challenging their perception that they had a monopoly on serious legal thought.” The draft opinion reflects the mentality of the shaken.