McConnell On The Judicial Bureaucracy And The First Amendment
‘The judiciary itself is under increasing attack from Democrats who want to destroy it as an independent branch of government. And the judicial bureaucracy seems desperate to appear apolitical… It would be one thing if this were empty virtue signaling. But we’re talking about behavior increasingly in tension with constitutional provisions, including First Amendment rights.’
WASHINGTON, D.C. – U.S. Senate Republican Leader Mitch McConnell (R-KY) delivered the following remarks today on the Senate floor regarding judicial ethics:
“Free speech has been an animating principle for my entire career in the Senate. I am second to no one in my defense of the First Amendment. So I’ve found the recent habit of the federal judiciary’s bureaucracy to try and abridge its protections alarming, to say the least.
“The courts are where citizens go to have their free speech rights vindicated against censorious government officials. I know this from experience: I sued to stop the anti-speech campaign finance rules signed into law by President Bush, and I took it all the way to the Supreme Court.
“But where do people go when the courts decide to behave like any other branch of government? When they put other interests over the First Amendment? Even having to ask the question is troubling.
“Two of my colleagues and I recently wrote to the head of the Standing Committee on federal rules to express our opposition to a proposed amendment to the rules governing appellate courts.
“The amendment is the result of persistent bullying of Senate Democrats, and it would force parties seeking to be heard as friends of the court to disclose their donors in certain instances.
“The forced disclosure of donors is a longstanding offense against the First Amendment. This has been abundantly clear since Justice Harlan eloquently explained it in NAACP v. Alabama. The courts only tolerate forced disclosure in the case of actual candidate electioneering to ensure election integrity.
“But court cases aren’t elections, and friends of the court aren’t candidates. And the fact that the Appellate Rules Committee doesn’t understand this and wants to chill free speech by mandating donor disclosure is a shocking reversal of the NAACP v. Alabama.
“That’s why my colleagues and I encouraged the Standing Committee, the Judicial Conference, and the Supreme Court to scrap this unconstitutional amendment.
“Unfortunately, there’s more. Another committee in the judicial bureaucracy, the Codes of Conduct Committee, recently amended one of its advisory opinions to prohibit law clerks from seeking political employment.
“This is the same committee that tried to ban federal judges from joining the non-partisan Federalist Society while allowing them to join the highly partisan and left-wing American Bar Association.
“The committee reversed itself on that boneheaded decision after an uproar from the judges of all political stripes.
“In its new advisory opinion, the committee concluded that clerks could seek employment from law firms, impact litigators, elected officials, and the government, but that they cannot even talk to political parties or candidates for office about a job. Doing so, they conclude ‘risks linking the judge’s chambers to political activity, which could compromise the independence of the judiciary.’
“Mr. President, consider just how absurd this is:
“First, political activity is at the core of our Freedom of Speech. To single it out for a special disability among clerks seeking employment turns the First Amendment on its head. Prohibiting a clerk from discussing employment options with the Harris campaign because it might make ‘the judiciary’ look bad curbs the clerk’s constitutional rights in order to preserve some theoretical, attenuated interest.
“Second, it is indeed a special disability… and one that has no correspondence to the real world! Why is the ‘link’ any more problematic when a clerk wants to talk to a Republican campaign—which is prohibited—but not when she wants to talk to an elected Republican—which is allowed?
“What about seeking employment as a political appointee in the highly partisan Garland Justice Department? Do the large law firms to which the Democratic Party outsources its campaign litigation not provide a ‘link’ to the judiciary?
“Indeed, one prominent law firm, the Elias Law Group, explicitly claims that its goal is to elect Democrats! And yet a clerk can presumably seek employment there but not over at the Democratic National Committee? These are distinctions without differences.
“But wait, there’s more.
“Last week, the Judicial Conference, in its zeal to take a hard line against misconduct in the workplace, referred a disgraced former judge to the House for impeachment.
“Yes, that’s right: they referred a private citizen for impeachment. Without getting into the merits of the allegations against the former judge—other than to note that they caused him to resign in disgrace—this was a remarkable action by the [judicial] bureaucracy.
“They are surely aware that whether or not you can impeach a former official is hotly disputed. But they referred it anyway. In other words, while trying to make a point about one political issue—workplace misconduct in the judiciary—they ended up making a point about another one—the impeachment of former officials. And for what? 40 sitting Senators have already said that you can’t do this as a matter of constitutional law, thereby making his conviction all but impossible.
“The judiciary itself is under increasing attack from Democrats who want to destroy it as an independent branch of government. And the judicial bureaucracy seems desperate to appear apolitical. It has been taking affirmative steps to virtue signal on issues that matter to Democrats, from Federalist Society membership to single-judge divisions to amicus disclosure.
“It would be one thing if this were empty virtue signaling. But we’re talking about behavior increasingly in tension with constitutional provisions, including First Amendment rights.
“My advice to the Judicial Conference is this: the way to avoid getting involved in politics is to avoid getting involved in politics.”
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