E. Barrett Prettyman courthouse in Washington, D.C. on March 22, 2018. Photo: Diego M. Radzinschi/ALM

The ethics committee for the federal judiciary is warning judges to carefully consider their participation in events by groups that are “engaged in public policy debates.”

The Judicial Conference of the United States' Committee on Codes of Conduct has published an advisory opinion on federal judges and their employees, including current and future law clerks, participating in programs and events sponsored by outside organizations.

Under the judiciary's ethics codes, federal judges and their clerks have long steered clear from publicly commenting or participating in events that endorse political viewpoints. But the opinion urges judges to take heed of even more considerations before they agree to attend an event.

“Organizations that were once clearly engaged in efforts to educate judges and lawyers have become increasingly involved in contentious public policy debates,” the opinion said. “Gone are the days when it was possible for a judge to identify the sponsoring organization and know that the judge was within a bright-line 'safe zone' for participation.”

The opinion advises judges and their employees to consider, among other things, the sponsoring organization's identity, its stated mission, its sources of funding, whether it's involved in any litigation at the state or federal level, or involved in lobbying and outreach efforts.

It also specifically urges judges to consider whether the sponsoring organization for an event is “generally viewed by the public as having adopted a consistent political or ideological point of view equivalent to the type of partisanship often found in political organizations.”

The committee cautions judges who are weighing participation in a “law-related activity” that might have “political overtones” to consider whether the activity violates the “express or implied values” of the canons of judicial conduct.

“Where participation would undermine public confidence in the impartiality of the judiciary, would give rise to an appearance of engaging in political activity and of undue influence on the judge, or would otherwise give the appearance of impropriety, the committee has advised against attending a seminar or conference,” the opinion read.

The opinion, dated February 2019, came after a handful of Democratic senators on the Judiciary Committee wrote to the Administrative Office of the U.S. Courts last year about a controversial “training academy” program under the Heritage Foundation.

The Heritage Foundation caught heat after The New York Times reported the conservative organization had started a “training academy” for recent law school graduates with federal clerkships lined up. The program, funded by unnamed donors, would have required those future law clerks to keep silent about the program, and to promise they would not use the training “for any purpose contrary to the mission or interest of The Heritage Foundation.” The Heritage Foundation later suspended the program, before rebooting a modified version of it.

The committee's opinion did not directly identify the Heritage program, but it said the conference received “multiple inquiries” about the topic of judges and their employees participating in events and educational seminars sponsored by outside groups. The committee also specified that judges may “impose limits on the pre-employment conduct of their future law clerks” to prohibit activity that might violate their code of conduct.

The lawmakers who wrote to the administrative office praised the opinion as a “breakthrough.” The senators who penned letters include Sheldon Whitehouse of Rhode Island, Dianne Feinstein of California, Patrick Leahy of Vermont, Dick Durbin of Illinois, Richard Blumenthal of Connecticut and Mazie Hirono of Hawaii.

Read the opinion:

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