Justice Watch: Common Cause

Friday, November 23, 2012

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:

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.

Friday, November 16, 2012

Oops: They're doing it again: Another Supreme Court Justice flouts ethical standards

Alito speaks at Federalist Society fundraiser, following in ethically-challenged footsteps of Scalia and Thomas

AFJ and Common Cause released this statement today:

WASHINGTON, D.C., Nov. 16 - For the second year in a row, a justice of the Supreme Court has flouted judicial ethics by headlining a fundraising gala for a lawyers group, the Alliance for Justice and Common Cause said Friday.

From the Federalist Society website

Justice Samuel Alito was a featured speaker at the "30th Anniversary Gala Dinner" of the Federalist Society on Thursday night. Alito’s appearance was the drawing card for the $175-dollar-a-plate event, the society’s website indicates.

Were Justice Alito sitting on any lower federal court, his appearance would violate Canon 4C of the Code of Conduct for federal judges. That canon explicitly bans federal judges from being featured speakers and guests of honor at fundraising events. The code does not formally apply to the Supreme Court however.

Last year, Justices Clarence Thomas and Antonin Scalia spoke at the same Federalist Society fundraising event. The annual dinners attract a crowd of more than 1,200 lobbyists, judges and lawyers, including some with high-profile cases before the court. Attendees at Thursday’s dinner, for example, included at least three lawyers involved in cases challenging the constitutionality of the federal Voting Rights Act. Their Washington-based firm, Wiley Rein LLP, was a “silver” sponsor.

Justice Alito has become a regular at such functions, having previously spoken at fundraising events for the American Spectator magazine and the Intercollegiate Studies Institute. The Institute describes itself as working for "limited government, individual liberty, personal responsibility, the rule of law, market economy and moral norms."

Alliance for Justice President Nan Aron noted that a 2012 Hart Research Associates poll conducted for AFJ found that only 41% of Americans approve of the job the Supreme Court is doing. "If the public begins to believe that the justices are just politicians in robes, their credibility will further erode."

"In his 2011 Annual Report, Chief Justice John Roberts claimed that 'All members of the Court do in fact consult the Code of Conduct in assessing their ethical obligations,'" Aron said. "But it is clear that they are free to routinely ignore that guidance. That’s why guidance is not enough. Either the justices should formally agree to abide by the Code or Congress should require it."

"The words 'Equal Justice Under Law,' are carved into the marble above the entrance to the Supreme Court," said Common Cause President Bob Edgar, "but it’s clear that when it comes to judicial ethics, some members of the court consider themselves better than equal to the rest of the federal judiciary. Their refusal to embrace and abide by the Code of Conduct is disturbing."

Edgar and Aron emphasized that addressing an organization like the Federalist Society is not, in itself, a breach of ethics. The ethical line is crossed when the justice’s appearance is used to raise money for the organization.

ADDITIONAL RESOURCES

From AFJ: