by Beverly Mann
Washington Post writer R. Jeffrey Smith posted a comment to my post yesterday, providing a link to an article by him published in the paper about a letter that a large ad hoc group of law professors sent to the House and Senate Judiciary committees yesterday recommending legislation that would extend to the Supreme Court justices the code of ethics that applies to federal appellate and trial-court judges. The code prohibits certain conduct and requires recusal (nonparticipation by the judge in deciding a particular case or set of cases).
I’m grateful for the law professors’ letter, for the link to the article, and for Mr. Smith’s reportage, which gives extensive background and some details that I didn’t know, especially the financial contributions that the Koch brothers gave in 2007 and 2008 to the Federalist Society, the rightwing bar group that paid the expenses of justices Thomas and Scalia, and Thomas’s wife, for their four-day stays those years at a luxury resort where the Kochs were sponsoring a seminar at which these justices spoke.
The article quotes a Federalist Society official as confirming that the group did pay these justices’ expenses, but hints at the suspicion that the Kochs simply laundered the expense money through that organization. “Asked why Thomas’s reimbursement for a single speech stretched to four days, [the official] said, ‘If you pay for someone to go out, you don’t care when they come back.’ ” Which is true, unless you’re paying for the someone’s accommodations in the interim. Or unless you have reason not to care that you are.
The article notes that the ethics code that applies to the lower-court federal judges and that the law professors want made applicable to Supreme Court justices includes a prohibition against accepting travel reimbursements from outside groups if they “give the appearance of influencing the judge” or “otherwise give the appearance of impropriety.” But the first part of that strikes me as a tautology, and strikes the Koch and Federalist Society officials quoted in the article as itself a loophole, when the judge’s handling of a case will never really be in play because the judge’s ideology is so rigid, his or her sympathies so utterly controlling, that the judge is not really a judge but instead a proxy in a robe.
The issue of the expenses-paid attendance by a slew of federal judges at annual several-day-long seminars at luxury resorts, sponsored by the likes of the Koch brothers, on environmental-law issues, first gained public attention several years ago when a public interest group actually tracked those judges’ later rulings in environmental-law cases and found that several of these judges not only ruled against the environmentalists but that they had used, apparently nearly verbatim, the legal arguments provided at the seminars. In those instances, there appeared to be the genuine influencing of the judge. And there certainly was the appearance of it.
But with respect to the Supreme Court justices, what’s really most at issue, I think, is the second part of that prohibition—the “otherwise give the appearance of impropriety” part, whether regarding reimbursements for travel expenses or non-reimbursed appearances and speaking engagements. The article mentions Justice Alito’s attendance or speaking engagements at two annual fundraising dinners sponsored by the extreme rightwing magazine the American Spectator, and notes the ethics code that the law professors want made applicable to Supreme Court justices prohibits judges from participating in fundraising activities or “us[ing] or permit[ting] the use of the prestige of judicial office for that purpose.” The article says a reporter at one of the events quoted Alito as saying his attendance was not important. So I guess he used or permitted the use of the prestige of his office for that purpose just a little bit. Which still would violate the code, if the code applied to him.
What I think these justices miss, or probably don’t miss but also don’t care about, is that when they engage in this sort of thing they’re effectively altering the nature of their office itself. They’re conceding to themselves that their vote in certain cases is not a true judicial vote because it is not based on the legal arguments at all.