Federal judicial clerks can be registered members of the Republican or Democratic Party, but not the Federalist Society or the American Constitution Society
That’s from a recent—and, in my view, hard to reconcile—interpretation from the Committee on Codes of Conduct in a recent guide to judiciary policy draft.
For a little background, see this Bloomberg piece; for a little commentary, see pieces by Gail Heriot, Josh Hammer, and Mark Pulliam.
I want to focus less on what judges may or may not do, and more about how the principles extend to their law clerks:
As we discussed in Advisory Opinion 116, the relevant portions of the Code of Conduct for Judicial Employees, although not identical to the Code of Conduct for United States Judges, lead to similar conclusions on issues regarding outside activities, particularly for law clerks and staff attorneys. As we have noted, law clerks are perceived by the public as members of a judge’s staff. Although we have not addressed the issue as frequently, the advice we have given law clerks on involvement in outside activities, particularly law-related activities, is consistent with the advice we give here. Accordingly, we also conclude that law clerk and staff attorney membership in the ACS or the Federalist Society is inconsistent with the Code of Conduct for Judicial Employees
Impermissible “law-related” activities are discussed in AO 116: “judicial participation in organizations that advocate particular causes rather than the general improvement of the law is prohibited.” That concern in particular arises when the activity “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.”
But there is a separate provision for “political activities,” in Canon 5. Covered employees (including judicial clerks) “may,” for instance, “register and vote in any primary or general election, including register as a member of a political party” (Advisory Op. 92, I.a, emphasis added), and “participate in caucuses in those states where caucuses substitute for primary elections” (Id., II.c.).
A judicial clerk, then, could, under existing advisory opinions, be a “member” of the Republican or Democratic Party. Indeed, a law clerk could attended the Iowa presidential caucuses next month and stand in a corner of the room to cast a vote for Bernie Sanders or Elizabeth Warren. (But, under the rules, they “may not . . . attempt[] to influence other voters”).
Admittedly, one might distinguish law-related organizations that are “generally viewed” as political from other law-related organizations. But it is hard to endorse membership in some overtly political organizations like political parties but prohibit membership in organizations that are not overtly political.
Then again, when the right to vote is at stake—as it would be in states with closed primaries (i.e., requiring membership in a party) or caucuses (with public appearances at party events)—perhaps the Committee is willing to be more flexible.
I don’t know what will arise from the draft, and maybe others think the distinctions are more important than I do. But it was unusual enough to highlight.