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CRC's investigation, Tainted Justice: How Private Judicial
Trips Undermine Public Trust in the Federal Judiciary,
co-authored by CRC lawyers Doug Kendall and Jason Rylander,
reveals:
- While FREE's corporate funders were challenging clean
air protections for soot and smog in the DC Circuit in American
Trucking Ass'ns, Inc. v. EPA, FREE paid for three DC
Circuit judges - Judges Ginsburg, Williams and Sentelle
- to attend FREE junkets in Montana. Meanwhile, FREE added
Ed Warren, the lawyer who briefed and argued the case on
behalf of industry, to its Board of Directors, where he
was able to serve with Chief Judge Ginsburg. FREE violated
tax laws by leaving Warren's membership on its board off
its tax forms. FREE also twice brought Warren-who had no
prior contact with FREE-to Montana to wine, dine, lecture
to, and ride horseback with dozens of federal judges including
Judge Sentelle. Warren resigned from FREE's board around
the time Judges Ginsburg and Williams issued a "bizarre
and extreme" ruling in his favor, out of an apparent
concern that his membership on FREE's Board might look bad.
Judge Sentelle then provided a deciding vote against rehearing
of the ATA case, sending the case to the Supreme
Court. Although the Supreme Court unanimously reversed in
January 2001 in a pointed decision written by Justice Scalia,
the DC Circuit ruling had the effect of delaying implementation
of the soot and smog rules until the Bush administration
took over. Predictably, the Bush EPA has proposed implementation
rules that protect industry and effectively gut standards
designed to bring healthier air to 120 million Americans.
- FREE paid for a junket for District Judge Vanessa Gilmore
while she was presiding over a case seeking several hundred
million dollars in civil fines against Koch Industries for
hundreds of oils spills in six states. Two foundations controlled
by Charles Koch, CEO of Koch Industries, provided nearly
one-quarter of FREE's budget that year, including funding
designated by FREE as paying for the seminar attended by
Judge Gilmore. Charles Koch himself was deposed in the case.
Judge Gilmore ultimately accepted a consent decree-questioned
by environmental advocates-that required payment of a fraction
of the fines sought by the government.
- District Judge Jed Rakoff attended a FREE junket, also
attended by Alfred DeCrane, Texaco's former CEO, who was
able to lecture Judge Rakoff on "The Environment: Some
Thoughts from the Corner Office." Texaco gave FREE
$50,000 that year and DeCrane was an important potential
witness in a case called Aguinda v. Texaco, a $1
billion tort claim stemming from Texaco's destruction of
the Ecuadorean rainforest. Aguinda was remanded to
Judge Rakoff's courtroom by the Second Circuit shortly after
Judge Rakoff's trip.
These are not isolated instances. For example, Tainted
Justice documents that over a two-year period, three district
judges from one district court in Louisiana took FREE junkets.
Texaco, which paid $75,000 to FREE during that time, was appearing
before those three judges in seven different cases.
Tainted Justice also reveals other new and startling
facts about FREE's programs:
- According to FREE's tax forms, the total value of the
gift received for each FREE junket amounts to some $10,000
per trip per judge.
- While attendance at FREE seminars plummeted in 2000 and
2001 after release of CRC's first junkets investigation,
Nothing for Free, and a wave of negative publicity,
the number of judges accepting these trips has returned
to record levels. Roughly five percent of the active federal
judiciary now attends a FREE trip each year.
- Despite crystal clear ethics guidance that requires judges
to report the value of gifts associated with junkets, the
judiciary's Federal Disclosure Office actively instructs
judges not to disclose this critical information.
- In recent years, FREE has enabled representatives of six
of its corporate funders to lecture to more than 100 federal
judges at 10 different FREE seminars on such topics as "The
Environment: A CEO's Perspective."
- FREE's Director John Baden and Program Director Pete Geddes
have both written recent articles likening environmentalists
to murderous dictators like Stalin, Hitler, and Pol Pot.
Describing a message delivered to federal judges at a FREE
junket, FREE's John Downen complains that environmentalists
seeking action to prevent global warming "hold humanity
in low regard."
Still pending legislation would provide $2 million in federal
funding to fix the drastic appearance problems caused by these
corporate-sponsored trips while giving judges a needed pay
increase. To date, the federal judiciary opposes the measure.
Discipline sought
Three federal judges - Chief Judge Ginsburg of the DC Circuit,
Chief Judge Danny Boggs of the Sixth Circuit, and Judge Jane
Roth of the Third Circuit - actually sit on the governing
board of FREE. By doing so, they are lending the weight of
their judicial office to the positions on environmental law
topics that FREE promotes, undermining public trust in the
judiciary as a whole, and reflecting adversely on their own
impartiality in violation of several canons of the Code of
Conduct for United States Judges. CRC is today filing ethics
petitions asking the Judicial Council for each of these circuits
to force the judge's resignation from FREE's board.
The violations of conduct codes for judges are clear. Judges
must "act at all times in a manner that promotes public
confidence in the integrity and impartiality of the judicial
branch" and must avoid service on boards of organizations
where it "reflects adversely on their impartiality."
Federal judges cannot even attend a brown bag lunch at a law
firm out of concern that it might indicate the firm wields
"special influence" over the judge. Judges plainly
cannot sit on the board of an organization like FREE that
takes money from interested parties to host judges on vacation-style
trips designed to advance one side's perspective in a particular
area of the law.
The nation's leading judicial ethics expert, Professor Stephen
Gillers of New York University School of Law, has reviewed
the results of the investigation and is available for comment
at 202-998-6264. Monroe Freedman, Lichtenstein Distinguished
Professor of Legal Ethics at Hofstra Law School, may also
be reached for comment at 212-459-0350.
CRC's searchable database of which judges have taken which
corporate-funded junkets has been updated to include years
1999-2001, and is available for searching at www.tripsforjudges.org.
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