Justice Thomas: Federalist Society unfairly singled out
February 28th 2020
WASHINGTON (ChurchMilitant.com) - Supreme Court Justice Clarence Thomas, along with other federal judiciary watchdogs, are voicing concerns about proposed ethics guidelines that would prevent judges from joining legal organizations with discernible political agendas.
Speaking recently at the Federalist Society's annual meeting, Justice Thomas, a faithful Catholic, told his audience, "And now I think they're about to silence the Federalist Society. So I guess I can't come back."
Organizations Reflect Their Members
Organizations, by their very nature, reveal a lot about their members. Case in point: One of the reasons many Catholics and Christian conservatives voted for President Trump was his commitment to overhaul the federal judiciary and by extension, to assist the pro-life cause. He had a list of nominees he said he would consider for the Supreme Court, and he shared that list with the American people. It was a well-publicized fact that the Federalist Society had an important role in helping presidential candidate Trump develop this list.
The list of candidates was so impressive, it became evidence of candidate Trump's ability to find strong leadership for his administration. As the Chicago Tribune reported, "By releasing the list publicly, Trump could reassure the GOP base," some of whom were uncertain "about his ideology and how he would govern."
Who Is Behind the New Rules ?
Because of the Federalist Society's value to the Trump administration, it is not surprising there would be people working behind the scenes to suppress the organization. Thomas' remark raises the questions: who and how ?
The Judicial Conference of the United States is the federal judiciary's policy-making body. The conference's Committee on Codes of Conduct claims it "continues to receive inquiries regarding [the American Bar Association, the American Constitution Society, and the Federalist Society]" and so "find it appropriate to issue an advisory opinion addressing whether membership in these organizations is consistent with the Judges' Code [of conduct]."
The committee had already ruled that it was not appropriate for federal judges to hold leadership roles in these organizations. The committee is now recommending that federal judges can be members of the American Bar Association (ABA) but they cannot be members of the American Constitution Society (ACS) or the Federalist Society.
Carrie Severino, author of Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court, told Church Militant, "The committee has created a false equivalency" between the organizations.
Founded to compete with The Federalist Society, the ACS is "committed to fostering a progressive vision of the law." The Committee on Codes of Conduct duly notes the organization's "progressive" mission, but claims an equivalent but opposite commitment from the Federalist Society.
Writing for National Review, Severino says this recommendation is based on a false premise. Unlike the ACS, "the Federalist Society does not take positions or advocate on particular issues." In contrast, ACS created a Supreme Court Vacancy Toolkit to defeat the Kavanaugh nomination.
She further explains the false equivalency:
Placing the Federalist Society in the same category as the ACS might appear judicious, and given the Left's dominance of legal academia and bar associations, a blow to the ACS would be a small price for liberals to pay for a blow to the Federalist Society. But even the comparison of the Federalist Society to the ACS is inapt.
The ABA, however, is well-known for its advocacy for particular causes. The committee notes, for example, that in 1990, the ABA resolved to oppose any legislation interfering with a pregnant woman's right to terminate the pregnancy.
Commentator Ed Whelan, also writing in National Review, sums things up: "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.
Severino indicts the committee by pointing out "this very Codes of Conduct Committee is far more political than the Federalist Society since it is now undertaking a nakedly political campaign to silence conservatives."
The committee's drafted recommendations are fairly easily found on the internet but important details are noticeably missing. For example, the document states that it is the "Published Advisory Opinions" of the Committee on Codes of Conduct. Nowhere does it name the chair of the committee or any of its members.
Whelan finally obtained the names of those on the committee. Even though the list of committee members does not include who chairs it, Church Militant has confirmed it is U.S. 8th Circuit Court of Appeals Judge Ralph Erickson. Of the 15 members, 13 were appointed by presidents - eight by Democratic presidents and five by Republican presidents.