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VIEWED from out here in the provinces, Supreme Court Justice
Antonin Scalia's duck-hunting trip with Vice President Dick
Cheney seems a somewhat distant issue. Of more immediate local
concern are the conventioneers hunting for fun on Seventh
Street Road.
Scalia, Cheney and other icons of the right-wing power elite
run the country these days, while fending off antagonists
from the politically inept, less-well-funded left. And we
provincials read about it, or hear about it, as national news.
But sometimes the nation's great ideological struggle manifests
itself right here at home.
If you've been paying attention, you know about the lawsuit
in which Cheney is trying to keep the door closed on the deliberations
of his task force, which secretly produced the Bush administration's
energy policy. Scalia, who is Cheney's fishing buddy, refuses
to step aside from that case.
But one of our local judges, U. S. Appeals Court Judge Danny
Boggs, has put himself in an even worse ethical predicament,
according to some leading experts on judicial conduct.
Boggs and two other appeals court judges - Douglas Ginsburg
from the District of Columbia and Jane Roth from Philadelphia
- sit on the board of the Foundation for Research in Economics
and Environment, or FREE, a libertarian group financed by
corporations and conservative foundations.
A public interest law firm called Community Rights Counsel
(CRC) says those three judges have presided over cases in
which FREE's members and/or funders have a stake.
New York University law professor Stephen Gillers, an authority
on judicial ethics, told The New York Times, "A
judge should not sit on the board of a group like FREE or
any other group with a strident ideological profile on issues
of a kind that come before the court."
Hofstra law professor Monroe Freeman agreed. "It is improper
for a judge to sit on the FREE board. It's an advocacy group.
If he's on the board, he's got a fiduciary obligation to serve
their interest. That's inconsistent with his judicial obligations,"
he said.
Gillers told The Washington Post that Scalia's trip
was "a single event, affecting a single case." But
a judge's membership on FREE's board "is improper, and
it compromises the public's view of the impartiality of the
panels on which he sits in every case of interest to FREE's
members.... The consequences of this are much broader."
CRC has filed ethics petitions saying that, if these three
judges refuse to resign from FREE's board, the Judicial Council
should conclude they have "engaged in conduct prejudicial
to the effective and expeditious administration of the business
of the courts" and should take action against them.
The Code of Conduct for United States Judges allows for participation
only in civic and charitable activities "that do not
reflect adversely upon a judge's impartiality."
The pratfalls of the pompous are always delicious, but especially
when they happen in real life, as opposed to a Charlie Chaplin
movie. I try to remind myself of this every day.
Boggs is already famous in judicial circles for having conducted
a holier-than-thou campaign against Appeals Court Judge Boyce
Martin's handling of Grutter v. Bollinger, the celebrated
University of Michigan affirmative action case. According
to one of their colleagues, Judge Karen Nelson Moore, the
treatment of Martin was ``nothing short of shameful.''
But now it is Boggs who is the target of serious ethics charges.
The organization on whose board he serves has worked several
years to influence the outcome of environmentally sensitive
cases - cases that were important to its corporate donors.
Among other things, FREE underwrites judicial seminars in
resort areas around Yellowstone National Park. Plenty of time
is reserved for relief from the intellectual exertion, with
opportunities for golf, horseback riding and fly fishing.
The average cost, according to tax records, is about $10,000
per judge.
"It's Judicial Ethics 101 that you can't serve on the
board of an organization that takes money from corporations
to influence the outcome of cases they have before your court,"
says CRC executive director Doug Kendall. "It's outrageous
that these junkets continue, and it's doubly dangerous that
federal judges serve on the junketing program's board."
Only about 5 percent of the 792 active federal judges take
these FREE trips. And Judge Roth told the Times that
she thinks the organization is just dandy. She said, "My
participation on the board has convinced me that this is not
a partisan organization but a foundation very interested in
presenting pertinent information."
Boggs told Courier-Journal reporter James R. Carroll
that he was "only vaguely aware" of the CRC petition,
adding, "If it is any kind of formal complaint, it wouldn't
be appropriate to respond in the press."
As for the CRC's questioning his impartiality, Boggs said,
"I'm sure others could say the same thing about those
who are on the board of Harvard or who hold positions at the
ABA (American Bar Association)."
Interesting analogies?
Well, as Alfred North Whitehead once noted, "It is more
important that a proposition be interesting than that it be
true." But then he added that "a true proposition
is more apt to be interesting than a false one."
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David Hawpe's columns appear on Wednesdays and Sundays in
The Courier-Journal. You can read them on line at www.courier-journal.com.
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