Federal Judges Push Back on the Judicial Conference's Advisory Opinion No. 117
In May, The New York Times and The Wall Street Journal published an article and op-ed, respectively, about opposition to the Judicial Conference Code of Conduct Committee proposal to ban judges from being members of the Federalist Society and the American Constitution Society, along with similar organizations. Circuit Judges Greg Katsas, Andrew Oldham, William H. Pryor Jr., and Amul Thapar wrote in opposition to the proposal, and 206 other federal judges signed on. A brief analysis of the signatories of the letter follows. All numbers are drawn from the given numbers of judges on the bench on March 18, 2020, the date the letter was sent.
- First, it bears noting that the incumbent chair of the Code of Conduct Committee is Judge Ralph Erickson of the 8th Circuit. He's one of 8 Trump circuit court appointees to not list membership in the Federalist Society in his Senate paperwork, and (for obvious reasons) one of 5 to not sign the letter.
- Appointees of every president since Richard Nixon signed the letter.
- Over half the judges who signed the letter were appointed by Trump. At least half of the signatories are members of the Federalist Society.
- 12 judges without life tenure signed the letter. 4 are magistrate judges, 1 sits on the Tax Court, 1 sits on the Court of Appeals for the Armed Forces, 2 sit on the Court of Appeals for Veterans Claims, and 4 sit on the Court of Federal Claims. Aside from the magistrate judges, all but 1 of those judges (Victor Wolski of the Court of Federal Claims) is a Trump appointee. It seems evident that Trump's appointees to even the Article I courts are more outspoken and conservative than those appointed by other Republican presidents.
- Every sitting district judge in the Southern District of Georgia signed the letter.
- The two past members of the American Constitution Society that Trump appointed to the bench, Judges Mary Rowland of the Northern District of Illinois and Stephanie Davis of the Eastern District of Michigan, did not sign the letter.
- 5 of Trump's circuit court appointees did not sign the letter, including the following judges who wrote in their Senate questionnaires that they were members of the Federalist Society at some point in their careers: Jonathan Kobes and Eric Miller.
- Conversely to Kobes and Miller, 5 of Trump's circuit court appointees who did not list membership in the Federalist Society in their questionnaires did sign the letter: Bridget Bade, Joel Carson, William Nardini, Peter Phipps, and Michael Scudder (note: despite Scudder not listing membership in the organization in his questionnaire, he has spoken at some of its events, including the 2018 National Lawyers Convention).
- 19 of Trump's judicial appointees, including 2 circuit judges, 16 district judges, and 1 appointee to other lower courts, have been members of the Federalist Society at some point in their lives and did not sign the letter.
Supreme Court Clerks:
- Of Chief Justice Rehnquist's 6 clerks on the lower courts, 2 signed the letter.
- Of Justice O'Connor's 6 clerks on the federal bench, 2 signed the letter.
- Of Justice Scalia's 6 clerks on the federal bench, 4 signed the letter.
- Of Justice Kennedy's 9 clerks on the lower courts, 8 (including Obama appointee Cheryl Krause of the 3rd Circuit) signed the letter.
- Of Justice Thomas's 12 clerks on the federal bench, 9 signed the letter.
- Of Justice Alito's 3 clerks on the federal bench, all 3 signed the letter.
- Justice Gorsuch's 1 clerk on the federal bench signed the letter.
- Of Justice Kavanaugh's 2 clerks on the federal bench, both signed the letter.
Tables with information about the signatories follow. The numbers are approximate, and they might be off by a judge or two (I appreciate all corrections!). I noted someone as a "participant" if the Federalist Society's website lists them as a speaker, but their Senate questionnaire did not list membership in the organization (or, in the case of the early Clinton appointees and going back, I was not able to find their questionnaires online). This led to the figures for how many signatories were members of the Federalist Society to be somewhat deflated. For instance, I'm fairly confident that Judge Edith Jones of the 5th Circuit is a member, but as I have no way to verify that, I marked her as a participant (since she has spoken at the organization's events).
Table 1 shows the number of appointees of each president that signed the letter, and whether or not they are Federalist Society members. Just over half of the signatories were Trump appointees. Judges appointed by Trump to the district courts and subsequently elevated to the circuit courts were counted twice, and were treated differently in subsequent tables depending on which level of the bench they were on when the letter was sent in March.
Table 2 shows the breakdown of Trump judicial appointees to Article III, I, and IV courts by their membership in the Federalist Society and whether or not they signed the letter. A majority of his appointees have been Federalist Society members at some point in their careers, and there were about 40 judges who signed the letter and did not list Federalist Society membership, or did not sign the letter and did list Federalist Society membership in their questionnaires. These "crossover" judges intrigue me the most, as I'm curious what caused them to sign, or not sign (depending on the situation), the letter.
Table 3 shows the breakdown of Trump's appointees to the federal courts of appeals by their membership in the organization and whether or not they signed the letter. An overwhelming majority of them listed Federalist Society membership in their questionnaires, and did sign the letter, but there are some outliers, whom I mentioned above. Judges Andrew Brasher, Justin Walker, and Cory Wilson were all listed in the bottom row, as they were not yet serving on the circuit courts when the letter was sent.
Table 4 shows the breakdown of Trump's appointees to the federal district courts by their membership in the organization and whether or not they signed the letter. These numbers were more mixed. About 40% of them listed membership in the Federalist Society in their questionnaires, and about 40% signed the letter. However, this is where the large proportion of "crossovers" came from, with 34 district judges falling into one of two categories: 1) they signed the letter, but are not members of the Federalist Society; or 2) they did not sign the letter but are members of the Federalist Society. The bottom row includes Judges Marvin Quattlebaum and Peter Phipps, who were elevated to the courts of appeals by Trump before the letter was sent; Matthew Schelp, who was confirmed by the Senate to a district court seat in February, but will not take office until August; and, the five district judges who were confirmed between March 18 and today.
Table 5 shows the breakdown of Trump's appointees to other federal courts (e.g., the Court of International Trade, the Court of Federal Claims, Court of Appeals for the Armed Forces, Tax Court, territorial courts, etc.) by their membership in the Federalist society and whether or not they signed the letter. The "unknown" column includes judges of the Tax Court, Court of Appeals for the Armed Forces, Court of Appeals for Veterans Claims, and Court of Military Commission Review. The judges appointed to those courts don't submit public questionnaires (they aren't considered by the Judiciary Committee), so I can't definitively say whether or not they are members of the Federalist Society. Interestingly enough, Judge Miller Baker of the Court of International Trade joined the Federalist Society in 1985 (to my knowledge, he's been a member of the organization for the most time out of all Trump appointees), but did not sign the letter. The bottom row includes Judge Robert Molloy of the District Court of the Virgin Islands.
Conclusions:
The main takeaway is that membership in the Federalist Society shouldn't be construed as a sign of how bold a judge is. The fact that dozens of federal judges who are members didn't sign the letter, and that dozens of non-members did, illustrates that fairly clearly. The second, and more critical conclusion, is that Donald Trump's appointees to the federal bench shouldn't be regarded as a monolithic group. There was a ~55-45 split in terms of Trump appointees signing the letter, or not signing it. Even if Trump's appointees might generally be more conservative than Bush's, there still appears to be a division among them in terms of whether or not to speak out on issues like this one.
A final decision about whether to adopt the proposal will be made by the Conduct Committee in the coming months.
Table 2 shows the breakdown of Trump judicial appointees to Article III, I, and IV courts by their membership in the Federalist Society and whether or not they signed the letter. A majority of his appointees have been Federalist Society members at some point in their careers, and there were about 40 judges who signed the letter and did not list Federalist Society membership, or did not sign the letter and did list Federalist Society membership in their questionnaires. These "crossover" judges intrigue me the most, as I'm curious what caused them to sign, or not sign (depending on the situation), the letter.
Table 3 shows the breakdown of Trump's appointees to the federal courts of appeals by their membership in the organization and whether or not they signed the letter. An overwhelming majority of them listed Federalist Society membership in their questionnaires, and did sign the letter, but there are some outliers, whom I mentioned above. Judges Andrew Brasher, Justin Walker, and Cory Wilson were all listed in the bottom row, as they were not yet serving on the circuit courts when the letter was sent.
Table 4 shows the breakdown of Trump's appointees to the federal district courts by their membership in the organization and whether or not they signed the letter. These numbers were more mixed. About 40% of them listed membership in the Federalist Society in their questionnaires, and about 40% signed the letter. However, this is where the large proportion of "crossovers" came from, with 34 district judges falling into one of two categories: 1) they signed the letter, but are not members of the Federalist Society; or 2) they did not sign the letter but are members of the Federalist Society. The bottom row includes Judges Marvin Quattlebaum and Peter Phipps, who were elevated to the courts of appeals by Trump before the letter was sent; Matthew Schelp, who was confirmed by the Senate to a district court seat in February, but will not take office until August; and, the five district judges who were confirmed between March 18 and today.
Table 5 shows the breakdown of Trump's appointees to other federal courts (e.g., the Court of International Trade, the Court of Federal Claims, Court of Appeals for the Armed Forces, Tax Court, territorial courts, etc.) by their membership in the Federalist society and whether or not they signed the letter. The "unknown" column includes judges of the Tax Court, Court of Appeals for the Armed Forces, Court of Appeals for Veterans Claims, and Court of Military Commission Review. The judges appointed to those courts don't submit public questionnaires (they aren't considered by the Judiciary Committee), so I can't definitively say whether or not they are members of the Federalist Society. Interestingly enough, Judge Miller Baker of the Court of International Trade joined the Federalist Society in 1985 (to my knowledge, he's been a member of the organization for the most time out of all Trump appointees), but did not sign the letter. The bottom row includes Judge Robert Molloy of the District Court of the Virgin Islands.
Conclusions:
The main takeaway is that membership in the Federalist Society shouldn't be construed as a sign of how bold a judge is. The fact that dozens of federal judges who are members didn't sign the letter, and that dozens of non-members did, illustrates that fairly clearly. The second, and more critical conclusion, is that Donald Trump's appointees to the federal bench shouldn't be regarded as a monolithic group. There was a ~55-45 split in terms of Trump appointees signing the letter, or not signing it. Even if Trump's appointees might generally be more conservative than Bush's, there still appears to be a division among them in terms of whether or not to speak out on issues like this one.
A final decision about whether to adopt the proposal will be made by the Conduct Committee in the coming months.
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