Keeping conservatives from the legal debate is their goal

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 the student bod

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ies 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 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.”

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 the society possesses and enforces an orthodoxy.

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. But the ABA, unlike the Federalist Society, does this.

The Federalist Society has always been 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.

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.