It may have been the afterglow of Supreme Court nominee Samuel Alito Jr.'s skirmish with Senate Democrats over judicial ethics. Or it could have been the reflected heat of the lobbying scandal enveloping Washington. But whatever the reason, the judiciary, both federal and state, was cast in an intensely political light last week -- and not in the best sense of the term.
Alito came out of the week ahead. His failure to recuse himself in a case involving Vanguard, whose mutual funds he invests in, may have left lingering questions. But the issue got drowned out by Democratic lawmakers' concerns over his stances on executive power and abortion, and those concerns were not enough to block his confirmation.
But on a single day, Jan. 23, there were these other judicial ethics developments:
• ABC News reported that Justice Antonin Scalia led a Federalist Society seminar at a Ritz-Carlton resort in Colorado last September, suggesting that Scalia improperly lent the prestige of his office to a partisan organization.
• Salon.com reported that 10th Circuit appeals court nominee James Payne participated in 18 cases involving companies whose stock he held while serving as a federal district court judge in Oklahoma.
• On another front in the judicial ethics battle, the Supreme Court let stand an 8th Circuit appeals court ruling that invalidated judicial canons in Minnesota that bar judicial candidates from declaring their party affiliations and individually soliciting campaign funds. The Court was expected to take up the case, and by not doing so, critics say it will hasten the day when judicial elections are indistinguishable from other rancorous, costly campaigns.
"I feel like we are going back to the 19th century, where judges were an active part of the political arena, except judges have a lot more power now," says former Texas Supreme Court Chief Justice Thomas Phillips, now a partner in the Austin office of Baker Botts. Phillips was referring to the Court's action denying review in the Minnesota case, in which he represented the Minnesota Board on Judicial Standards in its effort to resurrect the ethics rules.
"It means a judicial candidate can go up and say to someone, 'I'm dead set against abortion, I'm a loyal Republican, can you write me a check?'" says Northwestern University School of Law Professor Steven Lubet. "We're involved in a race to the bottom in state judicial elections. It's a phenomenal mess."
The disarray on several ethics fronts is already having an effect. An American Bar Association commission tasked with revising its influential model code of judicial conduct may have to pull back its proposed Canon 5, which would bar exactly the kind of judicial politicking the 8th Circuit ruling now permits. A hearing on the proposals is set for the ABA's meeting in Chicago on Feb. 11.
"I don't have a high degree of confidence that we are proposing a code that is constitutional," says Jan Baran, a partner in D.C.'s Wiley Rein & Fielding and a member of the commission.
The ABA group also made recommendations on judicial travel in a new Canon 4 that mirrors a controversial 2004 Judicial Conference advisory opinion. The canon permits judges to participate in educational activities sponsored by nonjudicial groups. But it advises that judges first consider a range of factors to determine if participation could "give rise to a judge's independence being questioned."
Doug Kendall, executive director of Community Rights Counsel, a persistent critic of privately funded judicial travel, calls the new ABA canon "the same mealymouthed green light for federal judges that they had before."
Some features of the proposed canon could be read to cover Scalia's participation in the Federalist Society seminar, though Supreme Court justices are not bound to abide by either the judicial canons or the Judicial Conference's advice.
ABC News came under criticism for its report, in part because it noted that participating in the seminar caused Scalia to miss the swearing-in of Chief Justice John Roberts Jr. Footage showing Scalia playing tennis at the Bachelor Gulch Ritz-Carlton while Roberts was sworn in back in Washington bordered on "character assassination," Court practitioner Tom Goldstein of D.C.'s Goldstein & Howe wrote on his Supreme Court blog.
But the questions raised by the report were valid, according to several ethics experts. New York University School of Law Professor Stephen Gillers was quoted extensively in the news report, and Northwestern's Lubet also asserts that Scalia's participation showed "poor judgment." Says Lubet: "The real problem isn't the influence of the Federalist Society on Scalia -- it's Scalia carrying water for the Federalist Society, promoting an interest group."
More than 100 lawyers attended the seminar, according to the society, which promoted Scalia's appearance and the chance to "spend time, both socially and intellectually," with the justice. According to an online advertisement, registration for the two-day event cost between $275 and $375 per person.
In a post-broadcast letter to ABC News President David Westin (himself a former Supreme Court law clerk), Federalist Society President Eugene Meyer defended Scalia's participation in a "serious scholarly program" in which the justice spoke for 10 hours on the separation of powers and for which he produced a 481-page course book.
But the letter also makes it clear how important Scalia's participation was to the seminar's success and even its existence. If Scalia had canceled at the last minute so he could attend Roberts' hastily scheduled swearing-in, Meyer indicated the entire Colorado seminar would have been canceled even though it was being co-taught by Louisiana State University Law Center Professor John Baker. "Most attendees would have lost the money spent on plane tickets," Meyer said in his letter to ABC. "The Federalist Society would have also faced considerable costs for breaking its contract with the hotel where Justice Scalia taught the course."
Scalia himself has not commented on the report. And 10th Circuit nominee Payne has also not responded to press inquiries about the Salon report, which was produced by the Center for Investigative Reporting. According to the story, Payne, as a judge in Oklahoma, ruled on cases involving SBC Communications, Pfizer and Wal-Mart, companies in which he had substantial stock holdings.
The Payne allegations involve the same ethics rules that briefly seemed to threaten the Alito nomination. Despite pledging otherwise, Alito voted in a 2002 Vanguard-related case while he had large investments in Vanguard funds.
Alito managed to defuse the issue by acknowledging he made an error. Democrats also had a hard time clarifying what Alito might have done wrong, in light of the fact that mutual fund investments are different from direct stock holdings.
The judicial code of conduct that covers lower federal courts does acknowledge the difference, in this sense: Judges are not required to recuse in an IBM case, for example, if their mutual fund holds stock in IBM.
But if the mutual fund company itself is a party before the judge, "he has a disqualifying interest," according to a 2005 textbook on professional responsibility co-authored by George Mason University School of Law Professor Ronald Rotunda. Yet Senate Republicans intent on exonerating Alito cited a letter Rotunda wrote to Judiciary Committee Chairman Arlen Specter, R-Pa., last November that seemed to say the opposite. In that letter, Rotunda said recusal would be required only if the outcome would "substantially affect" the value of Alito's interests.
Rotunda says his textbook and his letter addressed different provisions of the recusal law and are not contradictory. He also defended Scalia's Federalist Society seminar in the ABC News report.
Northeastern University School of Law Professor John Flym, who represented Shantee Maharaj, the widow whose Vanguard case was at issue before Alito, was discouraged that the issue did not gain more traction. "What he did was illegal. The man thinks he is above the law," Flym said last week.
American University Washington College of Law Professor Amanda Frost also testified during the Alito hearings on the topic of recusals. Without stating her view on whether Alito should have recused, she said, "Most would agree that the process by which that decision was made did not work to foster public confidence in the judiciary."
Frost recommended changes that would increase transparency of recusal decisions and make sure that the justice involved is not the lone decision-maker on whether he or she should recuse. But two weeks after testifying, Frost is not optimistic that reforms are in the offing, even as Congress considers lobbying reform in the wake of its own scandal. "I'm glad the issue of recusals got some attention," she says. "But it was not the kind of attention that is likely to lead to change."