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 organization 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 — through forums and debates — the student bodies 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 ethically problematic — actually 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.