I’m interested to learn that Ninth Circuit judge William Fletcher is serving on the American Constitution Society panel charged with selecting the recipients of ACS’s 2021 Carliner Award. According to ACS, the award, named after civil-rights lawyer David Carliner, “recognizes outstanding public interest lawyers whose work best exemplifies its namesake’s legacy.”
Serving on this award panel strikes me as a curious role for a federal judge to fill. From his obituary that ACS links to, it’s evident that Mr. Carliner took up a broad range of causes. Deciding whose work “best exemplifies” Carliner’s legacy would seem to require Judge Fletcher to make qualitative assessments among the various causes of the different applicants and to discuss his assessments with his five fellow panelists. One of these panelists, Carliner’s daughter, is a past president of the ACLU of the Nation’s Capital. Three others are affiliated with liberal public-interest groups. The fifth is Linda Greenhouse. How can Fletcher confer with his fellow panelists—some of whom are with organizations that might litigate before him—and avoid giving them (or at least seeming to give them) particular insights into his own ideological preferences?
The Carliner Award also includes a cash prize of $2,500 to the recipient’s organization. Why is Fletcher deciding which public-interest organization gets the cash prize? Does his decision for or against a particular applicant create a recusal obligation with respect to litigation in which that candidate’s organization is involved? If not, why not?
I’ll note that ACS has two separate awards for writing competitions (one for law students who are ACS members, and one for all lawyers and law students) and that there are federal judges on the panels that make these awards. Participation in these panels does not seem to me to raise any comparable concerns.