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Dick Cheney's duck-hunting jaunt with his old buddy Antonin
Scalia rightly prompted questions about the ethics of Scalia's
presiding over a case in which Cheney is a defendant. Cheney
is seeking to overturn a lower-court ruling that ordered the
vice-president to disclose records of his energy policy task
force's dealings with the energy industry.
But the the Scalia-Cheney affair, as high-profile as it is
-- and as irresistible as the duck angle has proved to headline
writers -- is only one of a number of recent conflict of interest
episodes involving federal judges.
According to the watchdog group Community Rights Council,
5 percent of all federal judges have gone on $10,000 "junkets"
laid on by the Foundation for Research on Economics and the
Environment (FREE). The non-profit group is funded by corporate
donors and gives seminars on topics like, "The Environment:
A C.E.O.'s Perspective" in the great Rocky Mountains
where the judges wine, dine, horseback ride, and mingle with
lawyers and businessmen. Three federal judges even serve on
FREE's Board of Directors.
This week, the CRC filed ethics petitions with the Judicial
Council demanding that the three judges relinquish their FREE
posts. As CRC's Executive Director Doug Kendall says:
"There is pretty unmistakable evidence that the organization
that hosts environmental junkets for judges where they talk
about how and why federal judges should strike down environmental
regulations appears to be manipulating their board structure
and (conference) schedule to influence the outcome of important
environmental cases."
Consider Chief Judge Douglas H. Ginsburg of the Circuit Court
of Appeals for the District of Columbia, a member of the FREE's
Board of Directors. Ginsburg served on the board with Edward
W. Warren, a lawyer for the plaintiff in a case on trial in
Ginsburg's courtroom: American Trucking Associations Inc.,
vs. Environmental Protection Agency. The case challenged EPA's
clean air protections. The two judges presiding over the case
along with Ginsburg were beneficiaries of FREE's junkets.
The ruling went 2:1 in the American Trucking Association's
favor, but was later overturned by the Supreme Court.
FREE argues that Warren resigned from the board once he "realized"
that Ginsburg was on FREE's board of directors. The group
claims that this was done to dispel any suspicions of wrongdoing
and that no conflict of interest took place. As FREE's Chairman
John A. Baden puts it:
"I don't see anything unusual with them both being on
our board. To characterize them as somehow creatures or captives
of some special interests is insulting."
Baden's statement is somewhat disingenuous; as the CRC's investigation
discovered, FREE conveniently omitted to mention Warren's
membership on its board of directors when it filed taxes.
Judge Jane R. Roth of the United States Court of Appeals in
Philadelphia, one of the three judges that CRC wants to step
down from FREE's Board of Directors, says that:
"My participation on the board has convinced me that
this is not a partisan organization but a foundation very
interested in presenting pertinent information."
The FREE web-site explains:
"While our seminars are explicitly pro-environment, they
explain why ecological values are not the only important ones.
We stress that trade-offs among competing values are inescapable.
We show why it is ethically and materially irresponsible to
pretend such choices can be avoided."
FREE's corporate funders like ExxonMobil, GE Fund, Maguire
Oil Company, and Pfizer International may be some of the reasons
why the group's proclaimed environmental values have a corporate
slant. FREE points out that the judges junkets are covered
with funds from "dead man" foundations, not its
corporate funders. This separation does nothing to sway critics,
who argue that this doesn't change the group's anti-environmental
agenda and seminars which, as CRC's Kendall says, "take
conservative judges and give them a road map on how to advance
their philosophical leanings."
We are in the midst of what promises to be the most expensive
presidential race in the nation's history. Americans have
come to expect the worst when it comes to the influence of"special
interests" in politics. We are not surprised to hear
of the astronomical corporate donations to political campaigns
or of the luxurious trips that our elected representatives
enjoy. Yet we rely on the judiciary to curb the influence
of big money in politics, not, say, to mingle with representatives
of big business during luxury seminars about how best to effect
the evisceration of the nation's environmental laws.
Corporate-funded junkets are nothing new; nor are they illegal.
CRC has created http://www.tripsforjudges.org/, which includes
a searchable database that documents where corporate sponsors
whisked off your local judges over the years. The judges who
joined FREE's Board of Directors also broke no laws, but their
behavior was less than ethical, as is the more widespread
acceptance of FREE's junkets. Such incidents are a sad commentary
on the nation's judiciary and erode public trust, which wasn't
that strong to begin with.
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