By David B. Rivkin, Jr., and Andrew M. Grossman

19 September 2020 in the Wall Street Journal

The week after President Jimmy Carter lost his 1980 re-election bid, he announced the judicial nomination of a close ally of Senate Judiciary Committee Chairman Ted Kennedy. The nomination sailed through the Senate, which confirmed the First U.S. Circuit Court of Appeals judge 80-10 less than a month later, six weeks before Inauguration Day. That nominee, Stephen Breyer, now sits on the Supreme Court.

Justice Breyer’s second nomination, in 1994, got more attention, but his first in 1980 neatly illustrates a constitutional principle: The president’s authority to make judicial nominations, and the Senate’s power to weigh them, is unaffected by the electoral calendar.

Minutes after the news broke Friday that Justice Ruth Bader Ginsburg had died, Senate Minority Leader Chuck Schumer declared his opposition to considering any nominee “until we have a new president.” The argument is an appeal to precedent; Mr. Schumer’s tweet was lifted from a statement by Majority Leader Mitch McConnell after Justice Antonin Scalia’s death in February 2016.

Then, the Senate withheld its consent from President Obama’s nominee, Judge Merrick Garland. Mr. McConnell’s rationale was that the voters should have a say in selecting the next justice. Put aside that Mr. Schumer and his caucus were on the other side of the issue four years ago. The important question is: What’s the right precedent?

It isn’t 2016. In the realm of Supreme Court nominations, practice has long followed principle. Twenty-five times presidents have made nominations to fill Supreme Court vacancies that arose in presidential election years, and 21 times the Senate confirmed the nominee. The general rule is that when there is a vacancy on the nation’s highest court, the political branches will fill it.

At the same time, the Senate has long observed a narrow exception to that rule—one also guided by constitutional concern—and that’s what was in play in 2016. When the nation chooses a president and a Senate, it makes its choice about who wields the power and bears the responsibility to pick and confirm judges. But when the president and Senate have divergent views on judges and judicial philosophy, there’s no clear mandate on what kinds of judges ought to be confirmed. For well over a century—the last exception was Chief Justice Melville Fuller in 1888, during President Cleveland’s first term—the Senate hasn’t confirmed a Supreme Court nominee chosen in an election year by a president of the opposite party. That’s why, in 2016, Mr. McConnell let voters break the stalemate.

This exception was popularized in 1992 by Sen. Joe Biden, then chairman of the Judiciary Committee. He urged President George H.W. Bush to refrain from making any Supreme Court nominations in that election year. What made 1992 different from other election years, Mr. Biden explained, was that “divided Government” reflected an absence of a “nationwide consensus” on constitutional philosophy. “Action on a Supreme Court nomination must be put off until after the election campaign is over,” the future vice president insisted. No vacancy arose until 1993, when Bill Clinton was in the White House and Ginsburg’s nomination easily passed a Democratic Senate. But the Biden rule fit 2016 to a tee.

It’s especially ill-suited to 2020. Not only does the same party control the White House and the Senate, but the 2016 and 2018 elections were both unusually focused on the issues of constitutional philosophy and judicial selection, owing to the Scalia vacancy and the Democrats’ smear campaign against Brett Kavanaugh. The voters made their choice, sending Donald Trump to the White House with his list of prospective nominees and a Republican majority to the Senate. There’s no stalemate for the voters to break this time around.

There’s not even a serious debate over judicial philosophy. Mr. Trump has maintained and expanded his list of prospective nominees, but Mr. Biden refuses to release one. That reflects the reality that, while Democrats bemoan the originalist bent of Mr. Trump’s picks, they embrace no competing doctrine, only the insistence that judicial power be wielded to achieve their political ends. Their instant opposition to any Trump nominee is of a piece: the exercise of power divorced from principle.

Another bit of history: In 1980, Mr. Biden voted to confirm Judge Breyer.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/why-the-biden-rule-doesnt-apply-in-2020-11600545795

By David B. Rivkin, Jr., and J. Michael Luttig

17 August 2020 in the Wall Street Journal

Plaintiff lawyers want insurance companies to absorb the cost to business of the Covid-19 pandemic—and they’ve had some early successes. A federal judge in Kansas City, Mo., last week allowed salon and restaurant owners to proceed with a lawsuit claiming that Covid shutdowns constituted “direct physical loss or damage” covered by business-interruption policies. California lawmakers introduced legislation in June that would establish a presumption that Covid-19 qualifies for such coverage.

Yet however sympathetic their clients, the lawyers’ efforts are unconstitutional and dangerous. They threaten to bankrupt the insurance industry, on which American businesses and consumers depend.

Most commercial policies include coverage for business interruption caused by physical damage to the business assets. If a car dealership suffers tornado damage to its roof, it can recover repair costs and losses incurred while the premises are closed. But disease isn’t “physical loss or damage,” as that phrase is ordinarily understood or typically intended in insurance contracts. Most such contracts expressly exclude such losses. That’s because losses associated with communicable diseases—like those from war or nuclear accident—aren’t insurable. The risks are unknowable, preventing the calculation of a premium sufficient to cover the losses if the event occurs.

As the Supreme Court observed in Los Angeles Department of Water and Power v. Manhart (1978), “drastic changes” in the legal rules governing insurance policies can “jeopardize the insurer’s solvency and, ultimately, the insureds’ benefits.” If the Kansas City lawsuit and hundreds like it succeed in redefining “direct physical loss” to include Covid-induced business closures, insurers would be forced to cover losses that were never underwritten. The industry has enough reserves to pay up to $800 billion for losses covered by home, auto and business policies. Uncovered Covid-19 losses are estimated in the trillions.

Fortunately, there are significant constitutional limits on the ability of either courts or legislatures to change private insurance contracts. The Constitution forbids the states to “impair the obligation of contracts.” As Chief Justice John Marshall observed in Ogden v. Saunders (1827), the power of contract impairment “had been used to such an excess by the state legislatures, as to break in upon the ordinary intercourse of society and destroy all confidence between man and man.” The effect was “not only to impair commercial intercourse and threaten the existence of credit, but to sap the morals of the people and destroy the sanctity of private faith.”

The Contracts Clause has been invoked less frequently since the ratification of the 14th Amendment, whose Due Process Clause has become the preferred vehicle for challenging state regulatory actions. But the justices made clear in Allied Structural Steel Co. v. Spannaus (1978) that it still “limits the power of a State to abridge existing contractual relationships.” In that case, Minnesota rewrote pensions, requiring an employer to pay $185,000 to nine employees who were terminated before their benefits vested under the company’s plan. The court struck down the law as a “severe” and “unreasonably conditioned” retroactive alteration of agreed-upon obligations. Sveen v. Melin (2018), another Minnesota case, upheld a state-mandated invalidation of life-insurance beneficiary designations on divorce—but only because the impairment of the parties’ contractual obligations was minimal. The policyholder could redesignate the former spouse and “reverse the effect of the . . . statute with the stroke of a pen.”

Even during the Depression, the high court was skeptical of state laws that impaired private contracts. Home Building & Loan Association v. Blaisdell (1934) upheld a state law that extended the time allowed for redeeming real property from foreclosure under existing mortgages, but only because the redemption extension was a reasonable temporary condition.

State legislatures that attempt to abridge commercial insurance contracts today may argue that they are meeting a Depression-caliber economic emergency. Yet although the court reaffirmed in Spannaus that states’ ability to impair contract obligations is greater during an emergency, it also held that such laws must be “tailored to the emergency that it is designed to meet” and impose only “reasonable” conditions. Legislative changes establishing liability for Covid-19 losses would completely abrogate existing contracts and impose immediate, permanently binding, ruinous contractual obligations that the parties specifically contracted not to cover. They would almost certainly be struck down under the Contracts Clause.

Federal efforts to impose new contracts on insurance companies would also be unlikely to survive a constitutional challenge. The Fifth Amendment’s Due Process Clause prohibits Congress from imposing retroactive liabilities that, as the court put it in Landgraf v. USI Film Productions (1994), “increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.” In Eastern Enterprises v. Apfel (1998), the court struck down a law imposing new pension liabilities on employers based on decades-old contracts. The justices couldn’t agree on a rationale for their ruling: A plurality saw it as an unconstitutional taking without just compensation. But in a concurring opinion, Justice Anthony Kennedy argued that it violated due process. He noted that political pressures tempt lawmakers “to use retroactive legislation as a means of retribution against unpopular groups or individuals.”

Businesses, especially small ones, have suffered terribly because of the Covid-19 virus. Many likely won’t survive. But shifting the burden to the insurance industry by either judicial rewriting or legislatively abrogating insurance contracts would be unconstitutional, especially since the losses have been largely caused by government decrees. Congress has already provided enormous financial assistance to American businesses—the appropriate means of compensating losses suffered from the government’s shutdown of the economy.

Because the litigation threat is existential, the insurance industry should do more than defend specific lawsuits. It should seek declaratory judgments now, establishing the limits of their potential liability. It also should work to convince federal and state lawmakers that they neither should nor constitutionally could abrogate and rewrite private insurance contracts.

Mr. Rivkin practices appellate and constitutional law in Washington. He served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush. Mr. Luttig was general counsel of the Boeing Co., 2006-20. He served as a judge on the Fourth U.S. Circuit Court of Appeals. 1991-2006.

Source: https://www.wsj.com/articles/coronavirus-contracts-and-the-constitution-11597705464

By David B. Rivkin Jr. and Anastasia Lin

July 13, 2020, in the Wall Street Journal

Facebook, Google and Twitter announced this month that they will refuse to comply with customer-information requests from Hong Kong authorities until the companies review the implications of a new Chinese security law designed to suppress dissent in the territory. If the tech companies don’t cave in, it will be a rare instance of Western businesses standing firm against Beijing’s intimidation.

Corporations typically kowtow, fearful of losing access to China’s massive market. International airlines, including American, Delta and United, changed their websites so that Taipei isn’t listed as being in Taiwan. The general manager of the National Basketball Association’s Houston Rockets apologized for tweeting an image that read “Fight for Freedom. Stand with Hong Kong.” Mercedes-Benz apologized for an English-language Instagram post that included an innocuous quote from the Dalai Lama. The Big Four accounting firms issued statements criticizing Hong Kong protests after some of their employees took out an ad supporting them.

Using its economic power to pressure Western corporations is a key element of Chinese statecraft. The Communist Party keenly appreciates that Western entities are far more credible than Chinese government or media. China scrutinizes statements by Western companies, focuses on those that are even mildly critical of its behavior, and threatens them on social media with economic retaliation and blacklisting.

Such threats often appear to emanate from private Chinese citizens. But given the government’s heavy censorship of Chinese social-media platforms, they inevitably bear the party’s imprimatur. Moreover, the Chinese government almost always backs up the statements attributed to its citizens, waging a joint campaign, so that the language of these “private” complaints tracks Communist Party propaganda.

Beijing also attempts to suppress authentic Chinese voices critical of its human-rights abuses. One of us (Ms. Lin) represented Canada in the Miss World 2016 finals in Washington. The London-based Miss World Organization—most of whose sponsors are Chinese companies—isolated her from the media during the pageant and threatened to disqualify her after she was seen speaking informally to a Boston Globe columnist. The ban on her contact with journalists was ameliorated only after intense public pressure.

It’s too much to expect corporations, whose objective is to make money for shareholders, to take a lonely stand against a government that controls access to a major market. But U.S. lawmakers could stiffen corporate spines. In response to the Arab League boycott of Israel, Congress in 1977 made it illegal for U.S. companies to cooperate with any unsanctioned foreign boycott and imposed civil and criminal penalties against violators. That legislation and the implementing regulations “have the effect of preventing U.S. firms from being used to implement foreign policies of other nations which run counter to U.S. policy,” according to the Commerce Department.

Antiboycott regulations forbid U.S. companies to “agree” to eschew doing business in Israel or with a company already blacklisted by the Arab League, or to cooperate with the boycott’s enforcement by providing information about business relationships with Israel or blacklisted companies. All requests for such cooperation must be reported to the Commerce Department. The regulations presume that any action taken in response to boycott-related requests violates the law. It isn’t sufficient to claim that one’s boycott-related speech or activity is based on one’s own views.

These regulations survived legal challenges from companies that claimed violations of their First Amendment right to free speech. Federal courts upheld the rules as narrowly tailored restrictions on commercial speech driven by a compelling government interest. American companies eventually grasped that the rules protected them from foreign pressure. In time, antiboycott compliance became part of American corporate culture and didn’t require much enforcement.

Beijing’s efforts to force American companies to support and comply with its propaganda and deception campaigns and furnish information on Chinese dissidents are similarly inimical to vital American interests. Preventing Western companies from participating in Chinese propaganda campaigns would diminish China’s soft power and impair its ability to use economic blackmail as a tool of statecraft.

Congress should enact legislation prohibiting American companies, as well as foreign entities doing business in the U.S., from cooperating with any Chinese effort to enlist them for propaganda or furnish information on dissidents. In particular, they would be barred from changing their public statements and social-media presence in response to Chinese pressure or from taking other steps to placate Beijing, whether its demands are communicated directly or indirectly. Any such Chinese demands would have to be reported to the U.S. government.

With most Americans—91%, according to a March Pew Research Center report—agreeing that Beijing threatens American interests, such legislation should be able to win bipartisan support. It would also be constitutionally defensible as a narrowly tailored regulation of commercial speech supported by a compelling government interest—countering Beijing’s push for global dominance.

The goal would not be to prevent companies from speaking, or to compel their speech, on China-related issues. They could not, however, legally comply with Chinese government attempts to direct their speech. Like the antiboycott laws, such a statute would protect Western companies, enabling them to tell Beijing that they are unable to comply with its demands. The U.S. can’t stop Chinese state institutions from spreading propaganda, but it can use the law to shield Western companies from the Communist Party’s intimidation.

Mr. Rivkin practices appellate and constitutional law in Washington. He served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush. Ms. Lin, an actress, was Miss World Canada 2015 and 2016. She is the Macdonald-Laurier Institute’s ambassador for China policy and a senior fellow at the Raoul Wallenberg Centre for Human Rights. She is the wife of James Taranto, the Journal’s editorial features editor.

Source: https://www.wsj.com/articles/a-way-to-curb-chinese-intimidation-11594680594

By David B. Rivkin Jr. and Andrew M. Grossman

June 17, 2020, in the Wall Street Journal

Senate Republicans have an opportunity to reverse one of Chief Justice Earl Warren’s most pernicious legacies—but they seem determined to blow it. Sen. Tim Scott, who is leading the majority’s police-reform effort, said Sunday that abolishing “qualified immunity,” which protects law-enforcement officers from lawsuits under a law known as Section 1983, is “off the table.” Police unions, Mr. Scott said, view it as a “poison pill.”

Section 1983 originated in the Civil Rights Act of 1871, which opened federal courts to lawsuits challenging civil-rights violations by defendants acting “under color” of state and local law. It provides that violators “shall be liable” to their victims. The idea was that freed slaves could go to court to enforce their newly won constitutional rights.

It didn’t work out that way, and much of the blame lies with the Supreme Court, which in the late 19^th century defanged the 14th Amendment, relieving states of their obligation to honor all citizens’ federal rights. The court only began to correct that error in the mid-20th century, proceeding on a right-by-right basis under a doctrine known as incorporation.

What the court gave with one hand, it took away with the other. In Mapp v. Ohio (1961), the justices held that states were obligated to observe the Fourth Amendment right against unreasonable searches and seizures. But in Pierson v. Ray (1967), they relieved state officials from civil-rights liability unless their actions violated “clearly established law.” That’s “qualified immunity.”

The results can be infuriating. In one recent case, police officers escaped liability for siccing an attack dog on a suspect who was sitting with his hands up. A previous case had found a Fourth Amendment violation, but the court held the precedent didn’t apply because the suspect in the earlier case was lying on the ground. In another case, cops shot a fleeing driver who posed no threat. In another, police stole a collection of rare coins while executing a search warrant. Because such larceny by officers hadn’t arisen in a previous case, the court reasoned, the plaintiff’s right not to have his property stolen by police was not “clearly established.”

To call this a double standard would be an understatement. Civilians are subject to civil and criminal liability when they violate the law, even when their legal obligations aren’t perfectly clear. When state officials violate constitutional rights, qualified immunity often makes it impossible to hold them to account. It’s easy to understand why this disparity inspires cynicism about the rule of law.

Warren’s rationale for qualified immunity was that officials had historically enjoyed immunity for acts taken in “good faith.” He concluded that unless a court had already established that a particular act violated the law, it couldn’t be presumed that Congress intended to impose liability.

But Will Baude of the University of Chicago has demonstrated that there was no general “good-faith defense” for public officials and that qualified immunity can apply even to violations committed in bad faith. Further, Warren’s conclusion about Congress’s intent is at odds with the statute’s language; the words “shall be liable” brook no exception.

The Warren court established qualified immunity at a time when it was rewriting the Constitution by discovering new rights at an astonishing clip. It’s possible the justices worried that imposing liability for violations of the new rights would encourage resistance and stymie the rights revolution.

Yet as the Warren court relieved itself from the strictures of the Constitution, it did the same for state officials. Qualified immunity has made civil-rights litigation such a crapshoot that it does little to deter misconduct, particularly rights violations by police, which can be remedied only after the fact with money damages.

Some conservatives fear that correcting the error of qualified immunity could alter incentives for the worse, by putting police officers at risk of liability for doing their best to protect the public. That concern is misplaced. Other professionals face tort liability irrespective of whether the law on some point was “clearly established” by a prior court decision. No one argues that hinders the practice of law or engineering.

Besides, unlike most other professionals, police are almost always indemnified by their departments. Police departments take advantage of qualified immunity rather than make difficult choices like confronting or firing bad cops, standing up to police unions, or insisting on use-of-force rules that could deter abuses. In these ways, qualified immunity does a disservice to the overwhelming majority of police who take their duties to their communities seriously.

The Roberts court appears disinclined to correct its predecessor’s error, denying review this week in a score of cases asking it to reconsider the doctrine. That means it’s up to Congress. House Democrats are promoting legislation that would eliminate immunity for police officers. The only sound objection is that the Democratic plan stops short of ending the failed experiment of qualified immunity altogether.

Limited to police officers, it would leave the doctrine on the books for other state officials, making the Supreme Court less likely to correct its original error. And it would arbitrarily deny recourse to victims of, say religious discrimination by a mayor or racial discrimination by a licensing officer. All state officials, including the police, should be accountable for respecting constitutional rights.

Mr. Rivkin served at the Justice Department and the White House Counsel’s Office. Mr. Grossman is an adjunct scholar at the Cato Institute. Both practice appellate and constitutional law in Washington.

Source: https://www.wsj.com/articles/how-the-warren-court-enabled-police-abuse-11592410930

Federal leadership is crucial, but there are measures only states have the authority to take.

By David B. Rivkin Jr. and Charles Stimson

March 19, 2020, in the Wall Street Journal

The Covid-19 pandemic has led to extraordinary restraints on liberty, from international travel bans to state and local orders that businesses shut down, individuals avoid large assemblies and even stay home, and infected patients remain in quarantine. Depending on the epidemic’s progress, even more-draconian measures may be needed, such as restrictions on interstate and intrastate travel. It’s possible that “social distancing” will last for months rather than weeks.

All this goes against the grain in America, whose people treasure freedom and constitutional rights. But the government has ample constitutional and legal authority to impose such emergency steps.

Some state officials, such as New York Gov. Andrew Cuomo, have urged the White House to take charge. But this isn’t a task for Washington alone. While the federal government has limited and enumerated constitutional authority, states possess a plenary “police power” and have primary responsibility for protecting public health.

States may also take more drastic measures, such as requiring citizens to be tested or vaccinated, even against their will. In Jacobson v. Massachusetts (1905), the Supreme Court considered a challenge to a state law requiring everyone to be vaccinated against smallpox. Henning Jacobson refused vaccination and was convicted. The court upheld the law and Jacobson’s conviction.

“The Constitution,” Justice John Marshall Harlan wrote for a 7-2 majority, “does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” Instead, “a community has the right to protect itself against an epidemic.” Its members “may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”

States also have the power, beyond criminal law enforcement, to make quarantine and isolation effective. If presented with widespread noncompliance, governors may call National Guard units to put their orders into force, to safeguard state property and infrastructure, and to maintain the peace. In some states, individuals who violate emergency orders can be detained without charge and held in isolation.

Federal leadership is crucial. Washington has wider access to data about the virus, its migration and trends. It is prudent for states to follow federal guidance on matters like quarantine and travel restrictions. But because Washington lacks states’ police power, compulsion is not always an option. The Constitution forbids federal officials from coercing the states or commandeering state resources or civilian personnel. While Washington may withhold some federal funds from states that refuse to follow federal law, it may do so only in ways that are tailored to advance the federal interests at stake and don’t amount to a “gun to the head,” as Chief Justice John Roberts put it in the 2012 ObamaCare case.

The federal government has the authority to order regional or nationwide containment and quarantine measures. The Public Health Service Act enables the surgeon general, with the approval of the secretary of health and human services, “to make and enforce such regulations as . . . are necessary to prevent the introduction, transmission, or spread of communicable diseases.” President Trump listed the Covid-19 virus for this purpose in January. The act authorizes the federal government to apprehend, detain and conditionally release individuals to prevent the spread of infection, and to detain anyone who enters from a foreign country or who would spread the disease across state borders.

The act can be read to allow for the general quarantine of all people from a particular state or states, including those who are asymptomatic or even have tested negative. But an attempt to do so would certainly result in litigation. Congress should promptly enact a statute that would affirm federal authority to impose a general quarantine if necessary.

To enforce such measures, the president can deploy civilian and military resources. He could federalize the National Guard over the governor’s objection. The Constitution allows Congress to authorize the use of the militia as well as regular armed forces for a variety of purposes, including suppression of insurrections, defense against invasions, and execution of laws.

Congress has placed significant constraints on the domestic use of the U.S. military. The Posse Comitatus Act of 1878 generally prohibits the use of U.S. armed forces for “performing domesti law enforcement activities” and features criminal penalties for noncompliance. But lawmakers have enacted important exceptions that allow the use, in certain specified circumstances, of the military to enforce federal laws. One is the Insurrection Act, originally dating to 1807, which allows the president to use the military when dealing with domestic rebellions. Widespread noncompliance with federal quarantines and travel bans promulgated under the Public Health Service Act may qualify as an insurrection.

Containing the Covid-19 epidemic will require citizens, states, private companies and the federal government to work together. One may hope the steps that have been taken so far will suffice. But emphasizing the sound constitutional and legal basis of these measures is important in reassuring the public that government can do what is necessary to secure the general welfare.

Mr. Rivkin is a constitutional lawyer who has served in the Justice and Energy Departments and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Mr. Stimson is a senior legal fellow at the Heritage Foundation.

Source: https://www.wsj.com/articles/a-constitutional-guide-to-emergency-powers-11584659429

By David B. Rivkin, Jr., and Andrew M. Grossman

4 February 2019 in the Wall Street Journal

At a time the First Amendment rights of free speech and association are under assault, it’s disheartening to see the judiciary getting in on the act. At issue are the judge-made rules governing judges themselves. A draft advisory opinion circulated last month by the Committee on Codes of Conduct of the U.S. Judicial Conference recommends new restrictions on the First Amendment rights of federal judges as well as their law clerks and staff attorneys. The opinion is unconstitutional, and a sloppy bit of judging to boot.

The committee, made up of 15 jurists, proposes to bar judges and their staffers from membership in the Federalist Society and the liberal American Constitution Society. The opinion reasons that a judge’s impartiality and independence could reasonably be called into question if he belongs to what the committee deems ideological “advocacy groups.” But the committee provides no clear guidance as to which other groups are forbidden. It says only that judges remain free to join the American Bar Association but must avoid the Federalist Society and the ACS.

Federal judges aren’t stripped of their constitutional rights before donning their robes. Yet the opinion takes no account of the First Amendment at all. If it did, its authors would have been obliged to subject their ruling to “heightened scrutiny”—which means, among other things, that the government may impose limits only to achieve a compelling interest. Safeguarding public confidence in the fairness and integrity of the judiciary qualifies—but that’s not the end of the test.

Inconsistent restrictions, as the Supreme Court has put it, invariably raise “doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.” And inconsistency abounds in the draft opinion.

The Committee gives a pass to the ABA even though it advocates positions that line up consistently with those of the Democratic Party through its official resolutions, lobbying, grass-roots advocacy and friend-of-the-court briefs.

The basis for that approval appears to be that the ABA has a “judicial division,” whose members, its bylaws assert, “will not be deemed to endorse” the association’s “positions and policies.” Perhaps the Federalist Society or ACS could overcome the ban by creating a similar judicial division—though the committee doesn’t say. But that would be meaningless for the Federalist Society, which doesn’t lobby or take positions on policy or political candidates. Its purpose is to facilitate open debate, allowing voices and perspectives often shut out of legal academia to be heard. For the society to adopt a special disclaimer for judicial members would be tantamount to confessing falsely that it has been misrepresenting its true purpose.

The committee also asserts that the ABA “is concerned with the improvement of the law in general and advocacy for the legal profession as a whole,” while the Federalist Society and ACS are not. Such favoritism should raise a red flag. Decades of case law condemns viewpoint-based discrimination by the government that favors one group over others.

The Supreme Court stated the rule plainly in Rosenberger v. University of Virginia (1995): “When the government targets not subject matter but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.”

The rule’s application here is clear: The committee may not play favorites, approving organizations because it thinks their views foster “improvement.” To avoid viewpoint discrimination while banning the Federalist Society and ACS, the committee would have to paint with a much broader brush, proscribing not only the ABA but also state bar associations (membership in which is often mandatory for those practicing law), affinity bars like the National Association of Women Lawyers and the Hispanic National Bar Association, and perhaps even churches—all of which take positions on issues that come before federal judges.

That would be foolish as well as unconstitutional. The Judicial Code of Conduct recognizes that “a judge should not become isolated from the society in which the judge lives” and that blocking judges from participation in civil society “is neither possible nor wise,” given their “unique position to contribute to the law, the legal system, and the administration of justice.” A viewpoint-neutral ban would run afoul of First Amendment tailoring requirements, which demand that a restriction’s scope be the minimum required to fulfill the government’s stated interest. Requiring judges to be monks is a step too far.

The Committee’s speech- and association-censoring approach simply cannot be reconciled with the First Amendment. So why not stick with the status quo, which focuses on impartiality? Its virtues include neutrality, familiarity, and appropriate deference to a federal judiciary that has proven its integrity and good sense through its conduct and the esteem in which it is held.

Federalist Society members have served as federal judges and law clerks for nearly 40 years without a serious suggestion of ethical impropriety. During that period nothing has changed about the organization’s activities or its purpose. What has changed is that it now faces regular attacks from political actors seeking to achieve their own ends by spreading falsehoods about a public-spirited organization. It is dismaying enough to see a committee of federal judges accept those falsehoods. Their willingness to disregard basic constitutional principles in the process is a dereliction.

Messrs. Rivkin and Grossman practice appellate and constitutional law in Washington. They are members of the Federalist Society, and Mr. Grossman serves on its Free Speech and Election Law Executive Committee.

Source: https://www.wsj.com/articles/shut-up-they-advised-11580773557