Federal judges should be allowed to be Federalist Society members

Senate Minority Leader Chuck Schumer (D-N.Y.) tweeted on May 12: “Sitting federal judges should not be members of political organizations like the Federalist Society. Period.” The tweet accompanied a letter from Schumer, also signed by Sens. Sheldon Whitehouse (D-R.I.), Mazie Hirono (D-Hawaii) and four other colleagues, in support of a proposal that would ban federal judges from joining the Federalist Society. They are only the latest to attempt to conjure up misperceptions about the society — of which I am an active member — to achieve partisan ends, including attempts to block qualified members from becoming judges.

The U.S. Judicial Conference’s Code of Conduct Committee proposed the ban in January, based on its conclusion that “[a] reasonable and informed public would view judges holding a membership … to hold, advocate and serve … conservative interests.” The committee stated that it previously had no ethical concerns about Federalist Society membership, but that there is an “evolving public perception” about the society. This is where the efforts of the Democratic senators come in.

Begun in the early 1980s by a few conservative and libertarian law students frustrated by the lack of ideological diversity in their classrooms, the Federalist Society has grown tremendously since. For example, attendance at its annual lawyers’ convention has swelled from roughly 800 in 1987 to more than 2,500 in 2019. The society never has taken a political position or litigated in court; it focuses on jurisprudential methods, the constitutional structure of government, and similar legal concepts.

Many liberal legal scholars express genuine respect for the Federalist Society. In fact, when the progressive American Constitution Society was founded in 2001, it was modeled on the Federalist Society. The committee’s proposal would also ban judges from membership in the ACS, but one might argue the ACS has had far less impact than the Federalist Society because there is an ample supply of liberal content from law schools and bar organizations.

The Federalist Society has thrived not because it strictly promotes a narrow range of ideas, but because it embraces robust, civilized debate among a variety of competing viewpoints, as reflected by the broad spectrum of speakers at its annual convention. Undoubtedly, many society members welcome such debate because they are confident that when aired in the marketplace of ideas, viewpoints they favor will prevail.

For example, Federalist Society members including the late Justice Antonin Scalia for many years did the hard work of arguing for legal theories such as an originalist-textualist approach to interpreting statutes and the Constitution. Many of these arguments have become widely accepted.

Maddened by losing arguments about proper interpretative methods and similar legal topics, society opponents such as the Democratic senators have engaged in a project to marginalize it by creating, and leveraging, misperceptions.

The Democratic senators begin their letter by citing a May 2019 poll showing public concern about politicization of the Supreme Court. However, three polls from October 2019 found that the public has far greater trust in the Supreme Court than either Congress or the president.

Further, the public’s negative impression of the judiciary and the Senate is not helped by spectacles such as the 2018 confirmation of Justice Brett Kavanaugh, who has been a society member. Months before the proceedings had even started, Schumer vowed to oppose him “with everything I’ve got.” Then, Whitehouse chose to use his time at the hearings to ask about “fart jokes” made more than 30 years ago in high school, while Hirono told “the men in this country: Just shut up.”

The Democratic senators contend in their letter that there is little difference between the Federalist Society and “an industry lawyers group that advocates for clients who are polluters or make dangerous products or offer sketchy financial products.” Like their antics in fall 2018, this wild-eyed assertion reveals more about the senators than the object of their derision.

Hoping to play down the ban’s significance, the letter claims that it is “unremarkable.” Yet since it was proposed in January, 210 federal judges have written a letter in opposition, and numerous media pundits have weighed in. If nothing else, the outcry demonstrates that the ban would be a radical change.

This latest attack on the Federalist Society by the Democratic senators does nothing to promote a “reasonable and informed public,” and is merely part of a cynical effort to distort public opinion and further politicize the courts. By allowing misperception to dictate reality, the proposal plays into the hands of those who hope to diminish the society’s influence at the cost of the truth. It should be rejected.

Don Daugherty is senior counsel at the Wisconsin Institute for Law & Liberty, a nonprofit public interest law firm in Milwaukee. He is on the Board of Advisors for the Milwaukee Lawyers’ Chapter of the Federalist Society, and on the Executive Committee of the Federalist Society’s Litigation Practice Group.