Not So Blindfolded Judiciary

Here is an example of why I don’t trust the left. What am I missing?

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WSJ  5/6/2020

Here’s one for the books: The ethics committee that wants to bar judges from belonging to the Federalist Society because it is supposedly too political is now being used as a political weapon against a judicial nominee.

Let’s unspool the political skulduggery. In January we told you about the draft advisory opinion by the Committee on Codes of Conduct of the U.S. Judicial Conference. The committee, composed of 15 or so judges, sets ethical guidelines for the judiciary. The committee had circulated a draft that reversed decades of policy by saying judges shouldn’t belong to the Federalist Society or American Constitution Society (ACS).

The draft offered a phony political balance because the Federalist Society leans right and ACS was created as a liberal counter to the Federalist Society. But the ACS plays an active role in political issues while the Federalist Society avoids taking sides on policy and doesn’t file amicus briefs. The Federalist Society is composed of chapters, notably at law schools, that host debates and panels on legal issues that often include giants of the legal left.

Our editorials echoed in the judicial community, which has responded with what we’re told are more than 70 letters to the Codes of Conduct Committee. The vast majority oppose the advisory draft. A March 18 letter was signed by 210 judges, including such lions of the judiciary as José Cabranes of the Second Circuit Court of Appeals and district court judges Richard Leon and Royce Lamberth of the D.C. Circuit.

“We believe the exposure draft conflicts with the Code of Conduct, misunderstands the Federalist Society, applies a double standard, and leads to troubling consequences,” the judges write. “The circumstances surrounding the issuance of the exposure draft also raise serious questions about the Committee’s internal procedures and transparency. We strongly urge the Committee to withdraw the exposure draft.” That’s what we call feedback.

But here’s the rub. One of the signers is Justin Walker, a district court judge in Kentucky whom Donald Trump has nominated to fill a vacancy on the D.C. Circuit Court of Appeals. The political left is trying to stop Judge Walker’s confirmation, and his Senate hearing is scheduled for this week. In what is no coincidence, the letter signed by Judge Walker was leaked Sunday to the New York Times.

Here’s how the daily diary of the judicial left spins the letter: “As the Senate this week considers elevating a politically connected judge to an influential federal appeals court, the judge has stepped into a fierce ideological debate about a legal group shaping President Trump’s rightward overhaul of the judiciary.

“The judge, Justin Walker of the U.S. District Court in Kentucky, has joined more than 200 federal judges—a majority of them appointed by Mr. Trump—in signing a letter that defends their right to be affiliated with the group, the Federalist Society.”

The horror. The horror. A judge who belongs to the Federalist Society, as dozens of others do, signed a letter defending membership in the group. The story rolls through the usual fantasy political offenses of the Federalist Society and, inevitably, calls on the Senate’s main antagonist of conservative judges, Sheldon Whitehouse (D., R.I.) for an above-the-fray, fair-minded, thoughtful comment. Or not.

Reports the Times: “‘The Federalist Society has become so significant in the judicial selection process,’ Mr. Whitehouse said in an interview. ‘That is a particularly noxious role for an organization that has judges as its members.’”

The Times did not report that Mr. Whitehouse has a friend and long-time legal collaborator who contributed to the Codes of Conduct draft. His name is John McConnell, a former Rhode Island plaintiff lawyer who is now a federal district court judge. The main Senate sponsor of Judge McConnell’s nomination? Sheldon Whitehouse.

We don’t know who leaked the judges’ letter, and many people saw it. But the leaker set up the Times reporters to spin the story as an attack on Judge Walker days before he is scheduled to appear before the Senate Judiciary Committee. Mr. Whitehouse is on Judiciary.

All of this raises even more doubts about the fairness and transparency of the Codes of Conduct Committee’s deliberations and advisory draft. As the letter from the 210 judges puts it: “Yet reports suggest that no member of the Committee was permitted to dissent, despite some members’ strong disagreement with the exposure draft. Other reports suggest that at least one member of the Committee was barred from voting on the draft. And the Committee’s reversal of its prior, settled interpretation—without any relevant change in the Code—raises further concerns.”

We’ll be blunter. This ethics committee is being manipulated unethically to stigmatize the Federalist Society and now to defeat a judicial nominee. Chairman Ralph Erickson, a judge on the Eighth Circuit, has let his committee be used. If he lets the draft become formal policy, even when it is opposed by so many judges, he will have turned the committee into precisely the politicized body his draft claims to dislike.

What an embarrassment—to Judge Erickson, to the Judicial Conference, and perhaps to the entire judiciary if the committee accedes to Sheldon Whitehouse’s agenda. Chief Justice John Roberts is the official head of the Judicial Conference, and he should call Judge Erickson and tell him to kill this draft forthwith.


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