- The Washington Times - Monday, May 18, 2020

A proposed ban on federal judges from membership in the right-leaning Federalist Society and left-leaning American Constitution Society could face a speed bump from federal lawmakers.

The federal judiciary’s policy-making body is coming under new scrutiny from Rep. Jim Jordan, the House Judiciary Committee’s top-ranking Republican.

The Ohio Republican wrote to the general counsel of the Administrative Office of the U.S. Courts to request information about the Federal Judicial Conference’s proposal before it proceeds and to notify the judicial conference to be prepared for a hearing on how it came up with the proposal.

“The draft advisory opinion discriminates against the viewpoints of members of the judiciary who chose to associate with the Federalist Society. For this reason, nearly 30 Members of Congress and over 200 federal judges have also expressed concern with the draft advisory opinion,” Mr. Jordan wrote. “While the draft opinion is not yet finalized, questions remain about the basis for and origin of this opinion and its drafting process.”

Mr. Jordan wrote that he sees “several problems” in implementing a rule banning federal judges from belonging to the Federalist Society and American Constitution Society, including his concerns about the bias and motivation of the proposal’s drafters.

The congressman noted that membership in the American Bar Association was not prevented by the proposal despite his contention that the ABA has, “openly advocated for liberal causes and directly engaged in cases or controversies before federal courts.”

Mr. Jordan is far from alone in criticizing the proposal. Supreme Court Justice Clarence Thomas challenged the proposed ban during a January meeting of the Federalist Society in Florida alongside Judge Gregory Katsas.

“And now, I think they’re about to silence the Federalist Society, as I hear,” Justice Thomas said at the January gathering. “So I guess I can’t come here.”

“Some of us are fighting back,” Judge Katsas interjected.

“Yeah, well, I just think that this is, I just think that we used to figure out ways to debate and to learn from each other and to sharpen each other,” Justice Thomas replied. “We did that with Justice [Antonin] Scalia, I’ve seen it on the court, and the sad thing for me is to see the failure to allow that to start and begin and to grow at the collegiate level or even at law schools where debate is being stifled.”

Prior to the outbreak of the coronavirus, the Federal Judicial Conference planned to meet in Washington in May. After social distancing restrictions hit nationwide, the judicial conference held a March conference call where it canceled all in-person court training through May 31, making it increasingly unlikely that the group will meet in person as previously planned.

Mr. Jordan asked the judicial conference to respond to his requests by no later than 5 p.m. on June 1.

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