Washington, D.C., November 9, 2011–The scheduled speaking appearances by Supreme Court Justices Antonin Scalia and Clarence Thomas at a fundraising dinner at the Federalist Society National Lawyers Convention on Thursday, November 10, plainly violates the principles outlined in the Code of Conduct for United States Judges. Their planned participation in this event once again calls attention to the disregard some justices have for commonly accepted ethical boundaries and to the need to formally apply the Code to Supreme Court justices.

Canon 4C of the Code explicitly bans federal judges from being featured speakers and the guests of honor at fundraising events. The Code of Conduct, however, does not formally apply to the Supreme Court even though the justices maintain they accept its principles as “guidance,” a claim belied by the justices’ willing participation in this and other similar events.

The Federalist Society’s 2011 Lawyers Convention Annual Dinner, which will be held at the Omni Shoreham Hotel in Washington, D.C., charges $175 per ticket and clearly appears intended to raise funds for its sponsor. Significantly, the Federalist Society used the names and images of the justices to sell tickets and advertised the justices’ participation in advance. The fact that the dinner serves as a fundraiser for the Federalist Society, and the fact that the justices’ participation was used as an inducement to purchase tickets both violate basic principles of the Code, whose commentaries state unequivocally that “the judge may not be a speaker, a guest of honor, or featured on the program of such an event.” In this case, the Federalist Society has clearly denoted the justices as the guests of honor at the dinner and advertised their participation.

Alliance for Justice’s short documentary film, A Question of Integrity: Politics, Ethics, and the Supreme Court details some justices’ past participation in precisely this type of fundraising event.

Importantly, what sets this event apart from a speech, for example, to a plenary session at the conference is the nature of the event as a fundraiser and the fact that the “prestige of judicial office” has been lent for the purpose of generating financial support for the organization. Nothing prohibits judges or justices from addressing groups such as the Federalist Society, but the line is crossed when a justice’s name and office are employed to raise money for the support of that organization and its mission.

Alliance for Justice President Nan Aron denounced the appearance of the justices at the fundraiser, saying, “This is just one more example of the willingness of some members of this Court to make up their own ethical rules and toss aside the common-sense constraints that bind all other members of the federal judiciary. Although the justices claim to abide voluntarily by the Code of Conduct, it is increasingly obvious that either they don’t understand what it says or they simply don’t care. No other federal judge would be permitted to behave in this way, and this is just one more example of why we must close this loophole once and for all and apply the Code of Conduct explicitly, formally, and publicly to the justices of the Supreme Court.”

This event is just the latest in a series of ethically questionable activities by some Supreme Court justices which have led Alliance for Justice, members of Congress, and other groups to call for immediate reform of Supreme Court ethics rules, including the formal application of the Code of Conduct to the Court. It is well known that Justices Thomas and Scalia have also attended political events sponsored by the Koch brothers and have, along with Justice Samuel Alito, spoken at other fundraising events for conservative organizations, all of which would be prohibited for any other federal judge and which violate the canons of the Code of Conduct. The ethical issues facing the Supreme Court and a reform agenda are detailed in the new film from Alliance for Justice, A Question of Integrity: Politics, Ethics, and the Supreme Court.

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As a service to commentators and reporters, Professor Stephen Gillers of New York University School of Law, and one of the nation’s leading authorities on judicial ethics, provided the following analysis of the ethical issues raised by the appearance by Justices Scalia and Thomas at the Federalist Society dinner:

The Federalist Society has announced that Justices Scalia and Thomas will speak at its “Lawyers Convention Annual Dinner” on November 10, 2011. It is a “sold out” ticketed event. I understand that the Justices were identified as featured speakers when tickets were offered for sale.

The Code of Conduct for United States Judges prohibits federal judges from being featured as speakers at a program that is intended to raise funds for the program’s sponsor. The Code does not apply to Supreme Court Justices, however, so they can choose to participate in activities forbidden to other federal judges although they are subject to the federal recusal statute.

Canon 4C of the Code provides:

(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. (Emphasis added.)

 

The Commentary for this Canon provides:

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. (Emphasis added.)

Advisory Committee Opinion 46 addresses whether a judge may accept an award or a public testimonial.  Among other things, it cautions judges as follows:

Finally, a judge must be cautious if the award is presented in conjunction with a fund-raising dinner or event. The Commentary to Canon 4C states that “[a] judge may attend fund-raising activities 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.” When a judge is chosen to receive an award, it would appear likely that the judge would be either a “guest of honor” or a “speaker” at such an event. Additionally, the judge should consider whether the judge’s presence is being employed as a device to promote publicity and the sale of tickets. (Emphasis added.)          

Other Advisory Committee Opinions addressing the restrictions imposed by Canon 4C include numbers 2, 28, 32, 35, 42, 82, 89, and 104.

 These Canon 4 requirements are a particular application of Canon 2B, which provides in part:

A judge should neither lend the prestige of the judicial office to advance the private interests of the judge or others nor convey or permit others to convey the impression that they are in a special position to influence the judge. (Emphasis added.)

 A federal judge may not under Canons 2 and 4 allow an organization to announce his role as a featured speaker at a dinner or other event if the organization hopes to raise funds from the event. An event is a fundraiser if the organization anticipates that the income from it may exceed the direct costs of holding the event, without regard to fixed overhead.  A contrary test invites manipulation and undermines the policy behind the Canon.

It may turn out that the organization is disappointed because the event does not earn a profit. But that is irrelevant. Judges have an obligation in the first instance to assure themselves that the event will not be a fundraiser. The purpose of the organization, no matter how laudable, is also irrelevant. See Opinion 42 (religious organizations are within the prohibition) and Opinion 104 (court historical societies are within the prohibition). The Canon identifies “nonprofit law-related, civic, charitable, educational, religious, or social organizations” as within its scope.

In addition, the event may not be used to as part of a membership drive. Of course, any successful event, even one that does not earn a profit, may enhance the reputation of an organization and eventually lead to an increase in membership. That possibility alone is too attenuated to come within the prohibition. What is forbidden is the use of the event itself (attendance at which is aided by the judge’s prestige) as a venue to enroll members. 

Stephen Gillers
New York University School of Law

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Alliance for Justice is a national association of over 100 organizations, representing a broad array of groups committed to progressive values and the creation of an equitable, just, and free society. Through our justice programs, we lead the progressive community in the fight for a fair judiciary, and through our advocacy programs, we help nonprofits and foundations to realize their advocacy potential.