If you want to be a judge, much less a lawyer, who is not bound by any code of ethics, wangle a Supreme Court appointment.
Practicing lawyers answer to their state bars. State judges answer to a variety of state commissions governing judicial conduct. Federal district court and court of appeals judges are bound by the Code of Judicial Conduct, which is enforced by the Judicial Conference. Supreme Court justices need not be members of any bar and are exempt from the rules that govern lower federal court judges.
Justice Neil Gorsuch, previously bound by the code of conduct as a judge on the U.S. Court of Appeals for the Tenth Circuit, has wasted no time in testing his ethically deregulated wings. A group called the Fund for American Freedom, whose name shouts that it is an ideologically driven right-wing libertarian organization, announced that Gorsuch would keynote its 50th anniversary lunch to be held at the Trump International Hotel in Washington, D.C. on September 28.
To put this in perspective, Gorsuch will be the star to attract people to a luncheon that will put a substantial amount of money in the pocket of President Trump, the man who appointed him. The week after his speech, Gorsuch will hear arguments in the challenge to Trump’s travel ban. At some not too distant point, the Supreme Court is likely to be asked to hear the lawsuit alleging that Trump’s continued ownership of the Trump International Hotel violates the Emoluments Clause of the Constitution. Other justices have spoken to groups such as the Federalist Society and the American Constitution Society, but none have done so as the headliner at an event that will bring financial benefit to a president.
Any judge with an ounce of concern about the appearance, if not the actual fact, of impropriety would quickly decline this invitation. Any lower court federal judge would almost certainly be advised that his participation would run afoul of the governing code of conduct. But, Gorsuch, who is on the Court only because of Mitch McConnell’s shameless flouting of constitutional norms, has plunged right in. Just as Gorsuch has shown himself to be the aggressive right-wing ideologue on the bench that Trump promised, he also seems intent on following Trump’s lead in debasing the ethical standards of public service.
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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.