Judge Sotomayor has disclosed to the Senate that she belonged to an all-female club called the Belizean Grove. She claims that her club “did not discriminate in an inappropriate way.”
Personally, I think it’s okay for a club to exclude women or men from membership. And, although an all-male club is not my cup of tea (the smaller the pool, the lower the quality), I do not think ill of men or women who wish to belong to organizations that exclude members of the opposite sex.
However, as Ed Whelan points out, Canon 2C of the Code of Conduct for United States Judges provides that “A judge should not hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion, or national origin.” And the written guidance as to what constitutes invidious discrimination states that, in the absence of certain special factors, “an organization is generally said to discriminate invidiously if it arbitrarily excludes from membership on the basis of race, religion, sex, or national origin persons who would otherwise be admitted to membership.”
I think Ed is correct in concluding that none of the special factors cited — e.g., for an organization dedicated to the preservation of religious, ethnic or cultural values of legitimate common interest to its members or for an intimate, purely private organization whose membership limitations could not be constitutionally prohibited — seems to be present in the case of the Belizean Grove.
Judge Sotomayor appears to deny that her club excludes men. She states that “to the best of my knowledge, a man has never asked to be considered for membership” and that “it is also my understanding that all interested individuals are duly considered by the membership committee.” But according to this account, the Belizean Grove, which consists of approximately 125 female members, is an avowedly all-female club that was founded as the female answer to the all-male Bohemian Grove. The fact that no males have applied to an avowedly all female club does not strike me as a good defense under Canon 2C.
If Judge Sotomayor did in fact violate Canon 2C, the violation would certainly be a matter of legitimate concern.