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Nov 19 2013

No, This is Not a Judicial Ethics Scandal

PoliticsUSA, a highly partisan liberal website, has an article accusing Justices Antonin Scalia and Clarence Thomas of violating federal judicial ethics standards by appearing at a Federalist Society fundraising dinner. But they dishonestly quote the judicial code of conduct in the process.

For three years, at least, there have been nagging questions about Clarence Thomas and Antonin Scalia’s close ties to right-wing organizations and their funding mechanism the Koch Brothers, but without a rigorous code of ethics in place there was little chance they would be held to account for, or forced to stop, using their positions on the Court to promote the Koch brothers’ right-wing agenda. Two days ago, Clarence Thomas was at it again when he appeared at a Federalist Society “fundraiser” as a featured speaker that two other High Court justices, Antonin Scalia and Samuel Alito also attended. It is a violation of Canon 4C of the Code of Conduct for U.S. Judges who are forbidden from being “a speaker, a guest of honor, or featured on the program” of a fundraising event, but because Thomas, a federal judge, sits on the nation’s highest court he is exempt, apparently, from adhering to any code of conduct. Just when it appeared no-one in a position of authority would take action and demand Thomas be held accountable for his recurring ethical violations, a lone elected representative once again spoke out for the American people.

Congressional representative Louise Slaughter is mounting another attempt to hold Thomas, and all High Court justices, to the same ethical standards as every other federal judge and initiated a petition to Supreme Court Chief Justice John Roberts to hold Thomas to account for defying the judicial Code of Conduct.

Except they didn’t defy it. Here’s the quote from above in context:

(C) Fund Raising. A judge may assist nonprofit law-related, civic, charitable, educational, religious, or social organizations in planning fund-raising activities and may be listed as an officer, director, or trustee. A judge may solicit funds for such an organization from judges over whom the judge does not exercise supervisory or appellate authority and from members of the judge’s family. Otherwise, a judge should not personally participate in fund-raising activities, solicit funds for any organization, or use or permit the use of the prestige of judicial office for that purpose. A judge should not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive or is essentially a fund-raising mechanism.< ?blockquote>

It specifically allows even planning and directing fundraising activities for a non-profit, law-related organizations that are “civic, charitable, educational, religious, or social” — that is, for 501(c)(3) and 501(c)(4) organizations. The Federalist Society is a C3, just like the ACLU or the American Constitution Society, which is the liberal equivalent of FedSoc. If one of the liberal justices did a fundraiser for either of those organizations, and they likely have at some point, that is also not a violation of judicial ethical standards. It doesn’t become a violation because the group they raised funds for is one that you disagree with.

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  1. 1
    eric

    Off Topic but speaking of judicial things, the Ohio Supreme Court published their ruling against Freshwater today. Ostensibly that means the good guys won, but the ruling itself has, IMO, several nasty problems with it.

    In any event, judge for yourself and I look forward to any commentary on it that might be provided by lurking lawyers and Ed.

  2. 2
    Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    wait, what?

    Where is the quote in its context?

    The “contextual quote” does not anywhere contain the words

    a speaker, a guest of honor, or featured on the program

    Am I misunderstanding?

  3. 3
    Leo Buzalsky

    I’m having the same issue as Crip. Those words aren’t even in what you, Ed, have quoted. A link to the code of conduct would be nice…

    So I went and found one.

    Looks like Ed’s quote is correct, so from where are the PoliticsUSA people quoting?

  4. 4
    Leo Buzalsky

    Adding to #3, though, the code Ed quoted does say, “Otherwise, a judge should not personally participate in fund-raising activities” so I would suspect that people are claiming being “a speaker, a guest of honor, or featured on the program” counts as “personally participating.” These activities aren’t listed in the first part, so unless you want to argue that this is included under “planning,” I’m going to have to lean toward agreeing with the PoliticsUSA reporting.

  5. 5
    captainahags

    Ed, looks like your blockquote is borked…

  6. 6
    Leo T.

    The section that PoliticsUSA quoted is located in the commentary sections of Leo Buzalsky’s link. (I don’t mean “comments section”, I mean the parts of the code with the “COMMENTARY” heading.)

    Canon 4C. A judge may attend fund-raising events of law-related and other organizations although the judge may not be a speaker, a guest of honor, or featured on the program of such an event. Use of a judge’s name, position in the organization, and judicial designation on an organization’s letterhead, including when used for fund raising or soliciting members, does not violate Canon 4C if comparable information and designations are listed for others.

    So it looks like this would be a violation of the Code of Conduct. However, as PoliticsUSA also admits, the code is not currently binding for SCOTUS. There’s probably some separation of powers questions as to whether Congress could make it binding against them in any case, so this is likely to only be a scandal in the moral sense.

  7. 7
    DaveL

    @6 Except the text you quoted does not actually appear in the Code of Conduct As others above have noted, it depends on how you interpret the boundary between “assist with fundraising activites” and “personally participate in fundraising activities”.

  8. 8
    dingojack

    That’s not a Judicial Ethics Scandal – [whips out HUGE Judicial Ethics Scandal, and brandishes it in front of Ed’s eyes] – now that’s a Judicial Ethics Scandal ‘

    (Sorry, couldn’t resist}
    Dingo

  9. 9
    dingojack

    While I agree the rules don’t say that this is unethical per se, the judiciary seems to think that it is by interpretation of those same rules. At the very least there should be a hearing of some sort to hammer out this grey area to cover future fundraisers (no matter which side of politics its on)
    Dingo

  10. 10
    eoraptor

    In any event, the code does state that only judges who exercise no supervisory or appellate authority may solicit funds from other judges. I believe the only court-like bodies over which The Supremes have no appellate authority are the many magistrate courts. On the other hand, the code says such judge, “should not,” engage in the listed activities. I suspect just about any lawyer in the country would tell you that “should” is permissive. If the ethics committee wanted to ban such behavior, they’d have said so explicitly, i.e. such judge, must not, or is banned, or something similarly concrete.

  1. 11
    Judges Violated the Judicial Ethics | Miami Legal Round Table

    […] No, This is Not a Judicial Ethics Scandal – Freethought Blogs […]

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