Eugene Meyer published a letter to the editor of the Washington Post responding the op-ed last week which mischaracterized the work and activity of the Federalist Society in trying to argue that federal judges are ethically prohibited from participating in the organization.
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James P. Donohue’s July 9 Tuesday Opinion essay, “A gray area between politics and the judiciary,” mischaracterized the work and activity of the Federalist Society in trying to argue that federal judges are ethically prohibited from participating in the organization. The Federalist Society has never participated in the judicial selection and confirmation process. Individuals associated with the society have, but never representing themselves as speaking or acting for the organization. The society has, time and again, made this point, and individual members have gone so far as to distance themselves publicly from the organization in formal and substantial ways while actively assisting with judicial selection and confirmation. The same holds true for taking positions on policy issues or engaging in litigation activity — the society does neither.
If the ethical standards for federal judges actually prohibited them from participating in the Federalist Society, given what it really does, then no judge could participate in the activities of almost any other institution in the legal world. Bar associations would certainly be off limits because they often litigate, lobby and weigh in formally on judicial selection. Even most law schools, whose faculties have been shown to skew strongly to the left, would be highly suspect. Nothing in the ethics opinion cited by Mr. Donohue compels such an absurd and ludicrous result.