A federal judge tied to an ethics proposal that would bar judges from joining the Federalist Society and its would-be liberal equivalent, the American Constitution Society (ACS), was an ACS member as recently as 2010, prompting charges of bad faith from legal conservatives.
The Committee on Codes of Conduct, an official judicial body that gives ethics advice to federal judges, produced a draft advisory opinion that would bar judges from joining the Federalist Society or ACS. Though the committee’s work is confidential and the opinion was unsigned, conservative lawyers and commentators have pushed suspicions that Chief Judge John McConnell of the federal district court in Rhode Island engineered the suggested change. McConnell, who sits on the committee, has given over half a million dollars to liberal causes and has close ties to Sen. Sheldon Whitehouse (D., R.I.), a passionate Federalist Society critic.
"Judge John McConnell—Senator Sheldon Whitehouse’s buddy and one of the most political judges in the entire federal judiciary—has shown his utter hypocrisy by targeting and arguing that being members of two specific outside legal groups is (somehow) ‘unethical’—yet refusing to even comment if he has resigned his membership in one of those groups after it was discovered he belonged," Mike Davis, president of the conservative Article III Project, told the Washington Free Beacon.
McConnell disclosed his ACS membership on a questionnaire while his nomination was pending before the Senate Judiciary Committee in 2010. He listed his membership dates as 2008 to "present," indicating an ongoing connection to the organization as of his nomination. It is not clear if or when his enrollment terminated.
The judge declined to answer questions about his ACS membership, or whether he has participated in ACS activities since taking the bench. An aide to McConnell told the Free Beacon that the judge "does not comment on confidential Codes of Conduct matters."
Whitehouse and other detractors say the Federalist Society, founded as an intellectual forum for students and law professors, has become the institutional axis of a conservative political campaign to transform American society through the courts. In a May report, Whitehouse and other Democratic lawmakers said the Society is the "nerve center for a complex and massively funded GOP apparatus designed to rewrite the law," noting its influence over judicial selection and political appointments under President Donald Trump. The committee’s draft opinion pointedly cites "changing circumstances" as a reason for reevaluating judicial participation in the Federalist Society and similarly notes the group enjoys financial support from "sources that support conservative political causes."
Legal conservatives widely interpreted the committee’s move as an attack on the Federalist Society. While the rule change bars judicial membership in both the Federalist Society and ACS, the Federalist Society comfortably outpaces ACS in membership and resources.
"These left-wing judges try to justify their political hit by also including a throw-away liberal group that doesn’t have nearly the reach or influence as the Federalist Society," Davis told the Free Beacon.
The new rule would still allow judges to belong to the American Bar Association, an interest group many see as neutral but which regularly endorses progressive policy positions, maintains a lobbying practice, and files amicus briefs in politically salient cases.
The draft opinion argues that judicial membership in either organization undermines public confidence in the courts. While neither group is expressly partisan, the philosophies they endorse and the issues they highlight clearly skew left or right. The ACS supports interpreting the Constitution "against the backdrop of history and lived experience" and promotes legal issues important to Democrats such as ballot access and campaign finance reform. On the other hand, the Federalist Society identifies itself as a "group of conservatives and libertarians" and believes courts should read laws as enacted.
"Official affiliation with either organization could convey to a reasonable person that the affiliated judge endorses the views and particular ideological perspectives advocated by the organization," the advisory opinion reads.
The Codes of Conduct Committee set a May 20 deadline for judges to submit comments on the draft advisory opinion. A timeline for further action is unclear.
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