But conservatives believe that his process is deeply flawed – and motivated by partisan politics. Prominent Federalist Society member Ed Whalen, who helped publicize the proposal, wrote in an op-ed that the judicial committee tied itself into a rhetorical knots in trying to explain why the Federalist Society is unduly political but that the liberal American Bar Association is above the fray. Whalen pointed out that the draft language cherry-picked from each organization’s mission statement in ways designed to minimize the ABA’s partisanship and maximize the Federalist Society’s.
Whalen pointed out that the ABA spends significant sums of money lobbying and routinely writes amicus briefs in ongoing litigation, two practices the Federal Society avoids: “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.
Apparently anticipating that it would be accused of a double standard, the Committee on Codes of Conduct did propose barring judges and clerks from joining the American Constitution Society, a liberal group created to counter the Federalist Society. Conservatives dismissed this gambit as a false equivalence.