Ralph Erickson testifies before the Senate Judiciary Committee during his confirmation hearing to be a judge on the U.S. Court of Appeals for the Eighth Circuit on July 25, 2017. Photo: Diego M. Radzinschi/ALM

Federal judges' membership in outside groups are back in the spotlight after a draft advisory opinion said they should not be members of the conservative Federalist Society or the liberal American Constitution Society.

The draft opinion, which began making the rounds on Wednesday, revisits a past finding from the Judicial Conference's Committee on Codes of Conduct that said judges should not hold leadership positions in ACS, but could be a member of the organization.

Calling that past reasoning "flawed," the draft opinion states: "If, as we advised, holding a leadership position in the ACS could reasonably be seen as impairing a judge's impartiality, then membership in the ACS raises the same concerns."

And it finds that membership in the Federalist Society raises similar issues.

"The conclusion we reached 15 years ago, if anything, is more apt today than it was then: affiliation with organizations holding such views 'might reasonably be seen as impairing [a judge's] capacity to decide any issue of constitutional law that may come before [the judge], and might reasonably be seen as [the judge's] indirect advocacy [of the organizations'] policy positions.' This alone warrants the conclusion that membership in the ACS or the Federalist Society is inconsistent with obligations imposed by the Code," the draft reads.

It further highlights the "nature of the factional missions of the ACS and the Federalist Society," stating that a "reasonable and informed public would view judges holding membership in these organizations to hold, advocate, and serve liberal or conservative interests."

"The Federalist Society formed in part to counter the perceived liberal influence of the [American Bar Association], and the ACS then formed to combat the perceived conservative success of the Federalist Society," the draft reads. "The Committee cannot see how the public could perceive the two organizations any differently from how the organizations perceive themselves."

The advisory opinion, in its current form, would not block judges from participating in events held by the organizations.

The draft opinion is not final. It's been circulated to federal judges for their consideration and comments, which will then be considered by the Committee on Codes of Conduct.

Judge Ralph Erickson of the U.S. Court of Appeals for the Eight Circuit, who chairs that committee, said the body will issue advisory opinions on a topic when they receive several questions on it from judges. He said it can take two to three years for some opinions to come out in their final version, but declined to give a timeline for this specific opinion.

He declined to provide details on the process behind this specific draft opinion, citing the typically confidential nature of the committee's work.

The judge said the committee set a May 20 deadline for judges and other members within the federal judiciary to submit their comments, and the group of 15 judges who sit on the panel will then "refine or redraft the opinion" accordingly.

He did express some frustration with the draft becoming public before it could be finalized and released by the Judicial Conference.

"[The draft opinions] have never been released to the broader public for their comments," Erickson said. "Obviously, it's been obtained by various press outlets."

Carrie Severino, chief counsel and policy director of Judicial Crisis Network, at the Federalist Society National Lawyers Convention held at the Mayflower Hotel in Washington on Nov. 14, 2019. Photo: Diego M. Radzinschi/ALM

The release of the advisory opinion drew scorn from conservatives almost immediately. Carrie Severino, the chief counsel and policy director of the Judicial Crisis Network, attacked the opinion for its "muddled reasoning," and labeled it "clearly part of the long running political attack on the Federalist Society."

When asked whether judges should be taking steps to prevent even the appearance of impropriety, Severino highlighted the Federalist Society's lack of formal participation in amicus briefs and other forms as advocacy in arguing that the perception is based on a false narrative.

Instead, she said judges should be considered based on personal actions they have taken in the past, rather than being judged based on perceptions of groups to which they belong.

"Maybe if there's a specific action in his or her personal capacity on behalf of a cause or a legal change they're arguing for, that might be cause for concern," Severino said. "Not mere membership in the organization."

The Federalist Society has become a lightning rod for debates over judicial independence, as figures associated with the group have played an outsized role in Trump's reshaping of the federal courts. Chairman Leonard Leo has personally helped Trump with judicial picks, and recently announced a new political group that will also address judicial nominees.

One judicial nominee's affiliation with the Federalist Society was called into question during his nomination hearing before the Senate Judiciary Committee earlier this month, when Sen. Richard Blumenthal noted that Cory Wilson had recently rejoined the group after letting his membership lapse.

But Republican Sen. Mike Lee, who said he has been attending Federalist Society events since he was a teenager, said membership in the organization "is, in no way, shape or form, something that should be the subject of legitimate inquiry."

The other group impacted by the opinion, ACS, is the largest and most influential judicial group on the left. However, it is still viewed as pulling less weight than the Federalist Society—whose reputation and role the group doesn't want, according to its leaders.

"Lots of people in the ACS network would make great judges. And part of what ACS wants to do is to help progressive lawyers across the country who think that they want to be judges understand what you need to do to get to be a judge," Pam Karlan, the chairwoman of ACS's board of directors, said last year. "But I don't view ACS as simply an employment agency."

The draft opinion also addresses membership in the ABA, which has faced recent conservative criticism after the group's standing committee on the federal judiciary gave "not qualified" rankings to nine of Trump's judicial nominees.

The draft states that "it is apparent from the inquiries the Committee has received that many judges have concluded that membership in the ABA is problematic," and points back to the Federalist Society's belief that itself is a counterweight to the ABA.

"Still, the ABA's mission, unlike that of the ACS or the Federalist Society, is concerned with the improvement of the law in general and advocacy for the legal profession as a whole. Any individual policy agenda advanced by the ABA's House of Delegates is ancillary to the ABA's core, neutral, and appropriate Canon 4A objectives," the document reads. "Thus, the ABA is not defined and focused to the point that membership could necessarily be perceived as indirect advocacy for or agreement with its positions on controversial issues."

The issue of judicial independence has come under the microscope during the Trump administration, as the GOP-held Senate has confirmed 187 of the president's judicial nominees and Trump attacks judges over their own affiliations, according to a tracker from the conservative Article III Project.

At the same time, Trump and his White House has regularly attacked judges who rule against him. One such attack from Trump in 2018 on an "Obama judge" prompted a rare public rebuke from Chief Justice John Roberts, who said the judiciary does "not have Obama judges or Trump judges, Bush judges or Clinton judges."

At least one group advocating for judicial transparency, Fix the Court, applauded the draft opinion as a step in the right direction.

"By maintaining formal affiliations in these organizations, judges send the signal that they are active players on one of two ideologically motivated teams," Gabe Roth, the executive director of Fix the Court, said in a statement. "There's nothing wrong with having these two teams, but judges should refrain from putting on either side's uniform and stick to the role of umpire."