Scalia’s absence from the Roberts swearing-in explained:
He was on a judicial junket.
The place: the Ritz-Carlton resort in Bachelor Gulch, CO. The event: a legal seminar. The sponsor: the Federalist Society.
Not only did Scalia’s absence appear to be a snub of the new chief justice, but according to some legal ethics experts, it also raised questions about the propriety of what critics call judicial junkets.
“It’s unfortunate of course that what kept him from the swearing-in was an activity that is itself of dubious ethical propriety,” said Stephen Gillers, a New York University law professor, who is a recognized scholar on legal ethics.
Scalia spent two nights at the luxury resort lecturing at the legal seminar where ABC News also found him on the tennis court, heading out for a fly-fishing expedition, and socializing with members of the Federalist Society, the conservative activist group that paid for the expenses of his trip.
What, no duck hunting?
One night at the resort, Scalia attended a cocktail reception, sponsored in part by the same lobbying and law firm where convicted lobbyist Jack Abramoff once worked.
“You know a lot of people would be embarrassed at that. I don’t think Antonin Scalia will be embarrassed,” Gillers continued.
No, I’m sure Nino won’t be embarrassed by this, just as he wasn’t embarrassed to accept a duckhunting trip from Dick Cheney, whose case was pending before him at the time.
Scalia, of course, is not the only Justice to accept freebies; he’s also not the, ah, most gifted on the Court:
An examination of the Supreme Court disclosure forms by ABC News found that five of the justices have accepted tens of thousand of dollars in country club memberships. And Justice Clarence Thomas has received tens of thousands of dollars in valuable gifts, including an $800 leather jacket from NASCAR*, a $1,200 set of tires, a vacation trip by private jet, and a rare Bible valued at $19,000.
“The rules dealing with gifts don’t apply to Justice Thomas because the rules only apply to lower court judges,” Gillers explained. “People give gifts to judges and justices because they have power. And they have power because of their position that they hold in trust. And to suggest that it doesn’t matter, no one will care, seems to me to be whistling in the dark.”
There is no explicit code of ethics for the Supreme Court, though, as Gillers pointed out, lower-court judges are bound by such a code. Still, lower-court judges quite frequently emulate the big boys and accept paid vacations under the guise of judicial conferences. And, of course, lower-court judges are supposed to recuse themselves in cases where they have a financial stake in any of the parties. The local rules in the Southern District of New York, for instance, require litigants to file a statement listing any publicly-held entities related to the parties so that the judges can evaluate recusal (and, presumably, so the court can assign the case with a mind to potential conflicts of interest).
Not that such a code of ethics stopped Alito from continuing to preside over a case in which he had a financial interest in one of the parties, Vanguard, even after a motion was made to remove him from the case. Anyone have any guesses how he’ll behave once he’s no longer bound by a code of ethics?
Regardless of whether a group is involved in pending litigation, allowing any group to buy the ear of a judge necessarily puts other groups and individuals at a distinct disadvantage in future litigation.
Fortunately, it appears that judicial junkets will be addressed in the lobbying-reform proposals being put together by the Democrats, with Patrick Leahy, Russ Feingold and John Kerry putting special focus on the judiciary.
* I can’t imagine how tacky-ass an $800 NASCAR leather jacket would be. I once attended a law-firm holiday party at the Waldorf-Astoria, and NASCAR was having its own party down the hall. Lavish spending apparently equals strobe lights and women in tight silver lame catsuits.