Lewis Morris / January 28, 2020

Leftists Aim to Bar the Federalist Society

It would be yet another litmus test for leftists, who want judicial despots.

Never content to let the flow of modern politics take its natural course, leftists have devised a new way to stymy the progress President Donald Trump has made in appointing strict constructionists to the federal bench. Elections matter.

The Committee on Codes of Conduct of the U.S. Judicial Conference recently released a proposal to prohibit judges from belonging to the Federalist Society. The Federalist Society was founded in 1982 by a group of conservatives and libertarians dedicated to preserving the legal order of the nation by promoting, among other things, an originalist view of the Constitution, the separation of powers, and the concept that the role of judges is to say what the law is, not what some enlightened bench occupant thinks it should be. As you might imagine, leftists absolutely loathe this organization.

In Trump’s three years in office, nearly 200 federal judges have been confirmed, a remarkable achievement that may stand as one of the president’s greatest successes. This work has prevented the Left from populating our court system with judges who legislate from the bench and push a tyrannical agenda.

The Conduct Committee, which performs as the ethical advisory board of the federal judiciary, intends to ban judges from joining the Federalist Society or the American Constitution Society. In its draft proposal, the Conduct Committee states: “Official affiliation with either organization could convey to a reasonable person that the affiliated judge endorses the views and particular ideological perspectives advocated by the organization; call into question the affiliated judge’s impartiality on subjects as to which the organization has taken a position; and generally frustrate the public’s trust in the integrity and independence of the judiciary.”

The American Constitution Society (ACS) was created as the leftist answer to the Federalist Society, and it’s included as part of the Conduct Committee’s plan solely as a means of projecting an appearance of fairness. Don’t be fooled.

The ACS is but one of many organizations that lean left and hold sway in America’s judicial system. And it is hardly the most influential. A vast majority, nearly all, of the nation’s law schools are populated with leftist professors who promote a predictably left-of-center view to their students. Leftists also hold political sway over the American Bar Association. ABA routinely writes amicus briefs in court cases, nearly always on the left side of an argument. It also has a government-affairs office that spent $860,000 on lobbying just last year. These are two activities that the Federalist Society as a rule does not engage in. Yet, ABA doesn’t even show up on the Conduct Committee’s radar, and the Federalist Society is squarely in its crosshairs.

Ed Whalen, president of the Ethics and Public Policy Center and longtime Federalist Society member, told RealClearPolitics, “In short, the ABA has a consistent and longstanding practice of advocating liberal causes. If a line is to be drawn between the Federalist Society and the ABA, it is the ABA that should be deemed to be on the wrong side of the line.”

The Federalist Society operates in several states and frequently holds meetings to explore and discuss legal issues, frequently soliciting qualified speakers from both sides of an argument. It encourages intellectual honesty and curiosity. It is also the only significant counterbalance to the Left’s attack on Rule of Law. Which, again, is why the Conduct Committee wants the Federalist Society out of the way and is willing to sacrifice ACS in the process.

The Conduct Committee’s proposal, which Whalen had a hand in helping make public, has already provoked a vigorous debate. The proposal remains open during a 120-day comment period that will end May 20. Expect this fight to continue to that date, and possibly beyond.

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