As has been widely reported, a recently-released draft advisory opinion of the Committee on Codes of Conduct of the Judicial Conference of the United States—a 15-member group of judges responsible for fashioning and interpreting ethical rules applicable to the federal judiciary—concluded that membership in the non-partisan Federalist Society by judges, law clerks, and staff attorneys is improper because the group’s ideological orientation would call its members’ impartiality into question. The draft ethics opinion, which was reportedly leaked, is subject to internal discussion within the Committee during a 120-day comment period ending on May 20. For the purposes of full disclosure, I am a longtime member and supporter of the Federalist Society.
The draft opinion included the American Constitution Society, a liberal counterpart to the Federalist Society, in the membership ban. For inexplicable reasons, the draft opinion did not extend the ban to the American Bar Association, even though that left-leaning organization—unlike the Federalist Society—advocates political causes, engages in lobbying, files amicus briefs, and adopts resolutions on a broad range of public policy topics. The ABA essentially serves as a liberal special interest group, but judges are still permitted to be a member while serving on the federal bench.