Talking turkey about rubber chicken – and Supreme Court ethics

While most of us still may be thinking about yesterday’s turkey dinner right now, at Alliance for Justice we’re also thinking about ducks – as in “if it looks like a duck and quacks like a duck …” and chicken, as in the rubber variety often served at fundraising dinners.

What brings all this poultry to mind is the response of the Federalist Society when Alliance for Justice and Common Cause pointed out that, for the second year in a row, a justice of the United States Supreme Court was headlining its annual fundraising dinner.  Were any other federal judge to do this, it would be a violation of the Code of Conduct for federal judges – but Supreme Court justices are exempt.

The fact that the event was a fundraiser is crucial.  We have no problem with Supreme Court justices speaking at events, even when they are hosted by groups with a strong ideological point of view.  Where they cross the line – and ignore the code of conduct – is when their appearance is used to raise money for the organization.

The Federalist Society response, according to the Associated Press: It’s not a fundraiser.  In fact, they say, they even lose money on every meal. 

That’s a curious response given what one finds on the program for the event.  More than 35 major corporations and prominent law firms are listed as “sponsors” of the event.  There are Bronze Sponsors” like Covington and Burling and the Lincoln Financial Group, “Silver Sponsors,” including Jones Day, Patton Boggs, PepsiCo and Facebook, and “Gold Sponsors,” including Chevron, Verizon and Sullivan & Cromwell.  Topping them all is the “Sponsoring Law Firm,” Gibson, Dunn & Crutcher.

So either the hotel where the dinner took place serves the world’s most expensive rubber chicken – or it was a fundraiser.

It’s no wonder that, when the Federalist Society said much the same last year, when Justices Clarence Thomas and Antonin Scalia headlined the dinner, Matt Wuerker, the Pulitzer Prize-winning cartoonist for POLITICO didn’t buy it:

(c) Matt Wuerker

 When it comes to the ethics of speaking at a fundraiser, the success of the event doesn’t matter.  As Prof. Stephen Gillers of New York University School of Law explained in an analysis written for AFJ:

It may turn out that the organization is disappointed because the event does not earn a profit. But that is irrelevant. Judges have an obligation in the first instance to assure themselves that the event will not be a fundraiser. 

It all illustrates, once again, why it’s so important to make the provisions of the Code of Conduct binding on Supreme Court justices.  Since it doesn’t appear likely that the justices will do this themselves, Congress should do it for them.