On November 10, 2020, The Federalist Society's Professional Responsibility & Legal Education Practice Group hosted a virtual panel for the 2020 National Lawyers Convention. The panel covered "Freedom of Association in the Legal Profession."
The Code of Judicial Conduct for federal judges and the Code of Judicial Conduct template for state judges, as modified by the States, both recognize the propriety of judges engaging in extrajudicial activities that are consistent with their role as judges, and counsel judges to avoid impropriety and the appearance of impropriety in those activities. The federal and state templates differ, at least in part, because federal and state judges are selected in different ways. Put simply, we do not want our judges to hide in an ivory tower, but we also want them to behave as judges when providing the benefit of their experience. And, while we want judges to interact with the bar and the public, lawyers must be aware on the limitations on such judicial contacts. As a result, the notion of maintaining public confidence in the judiciary will be evaluated and enforced in different ways in each arena.
In January 2020, a draft advisory opinion from the Judicial Conference’s Committee on Codes of Conduct suggesting that federal judges ought not to be members of the Federalist Society or the American Constitution Society, but may be members of the American Bar Association, became public. That draft advisory opinion was based less on the actual activities of those organizations than on a belief that the public participation of judges in those organizations would further contribute to a public perception that judges are not non-partisan actors. The draft opinion was withdrawn, but its effects have lingered as lawyers, judges, law clerks, and law students have had to tiptoe around its implications.
This panel will consider some fundamental questions that swirl around the extrajudicial activities of judges, including those raised by the now withdrawn draft advisory opinion. For example, what are the core values that support the federal and state rules, and how do they differ? To the extent that we focus on public confidence in the judiciary, how should we evaluate it? Is public confidence in the judiciary capable of empirical evaluation or a matter of a priori judgment? Whose judgment matters: That of an average person? A reasonable person? A reasonable lawyer? A regulator applying one of those artificial constructs? What rules apply to a judge’s membership, holding office in, or participation in an organization, or writing and speaking?
Featuring:

Hon. Thomas B. Griffith, United States Court of Appeals, District of Columbia Circuit (ret.)
Mr. W. William Hodes, Owner and President, The William Hodes Law Firm
Hon. William H. Pryor Jr., United States Court of Appeals, Eleventh Circuit
Moderator: Hon. Gregory G. Katsas, United States Court of Appeals, District of Columbia Circuit

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.