Friday, February 17, 2006

Lock Up the Court?

Brian Ross at ABC News seems to have a problem Supreme Court justices venturing outside the Beltway:
At the historic swearing-in of John Roberts as the 17th chief justice of the United States last September, every member of the Supreme Court, except Antonin Scalia, was in attendance. ABC News has learned that Scalia instead was on the tennis court at one of the country's top resorts, the Ritz-Carlton hotel in Bachelor Gulch, Colo., during a trip to a legal seminar sponsored by the Federalist Society.
Despite the fact that such seminars are planned well in advance and that Scalia explained this ("I was out of town with a commitment that I could not break"), Ross goes on to pretend to speak for Chief Justice Roberts:
Not only did Scalia's absence appear to be a snub of the new chief justice, but according to some legal ethics experts, it also raised questions about the propriety of what critics call judicial junkets.
The now-deified Justice O'Connor was teaching a class in Arizona on the day her successor, Justice Alito, was sworn in. ABC News has not yet labeled this a "snub."

Then of course there's the fallacious guilt by association:

One night at the resort, Scalia attended a cocktail reception, sponsored in part by the same lobbying and law firm where convicted lobbyist Jack Abramoff once worked.

"You know a lot of people would be embarrassed at that. I don't think Antonin Scalia will be embarrassed," Gillers continued.

Should Scalia also be embarrassed to attend White House events because its previous occupant was impeached?

Ross leaves out some interesting details::
  • Scalia was at the resort to teach a Continuing Legal Education seminar sponsored by the Federalist Society, as part of a larger meeting of the organization.
  • Regular attendance at such seminars is required of lawyers in 46 of the 51 U.S. jurisdictions as a condition of practicing law. They are often held at resorts, because attorneys hate having to amass the necessary credits and combining them with recreation ensures better attendance.
  • The seminars are usually taught by prominent members of the bar, and occasionally judges.
And these are not minor seminars:
  • Scalia arrived at the resort after 11PM on the first day. On the second day he taught his seminar, attended a reception and dinner, and played tennis. He left at 6:30 AM of the morning after the seminar. This... a late night arrival, a day of participation, and an early morning departure for the airport, is what Nightline referred to as spending "three days" at the resort.
  • Justice Scalia's materials for his course were 481 pages long. He taught for 10 hours, all in the one day he actually stayed at the resort.
  • How he found the time, not to mention the energy, to play tennis is a mystery.
The basic issue is this:

While there are ethics rules in place for lower federal court judges, there is no explicit code of ethics for the nine Supreme Court justices. Some practices have in turn come under scrutiny, such as accepting trips from groups with political and judicial agenda and gifts from private parties who may at some point have business before the court.

Ron Rotunda, a law professor at the George Mason School of Law, author of a textbook on legal ethics and who is himself a member of the Federalist Society, finds no problem with the Supreme Court justices attending events sponsored by the organization. "I'm a member of the Federalist Society, the NAACP, and the justices get invited to both, and I think that's a good idea," he said. "The organization doesn't have litigation before the judge and is unlikely to have litigation before the judge."

Gifts, including travel, provided to Supreme Court justices are already scrutinized. Other than covering his basic transportation and lodging expenses, Justice Scalia was paid nothing for his efforts. The problem here is the attitude that justices should not be associating with or educating fellow lawyers. Attending lawyers' seminars is simply an extension of the widespread practice of teaching at summer study abroad programs. Or is it less important to have educated practicing lawyers than to provide an excuse for students to study abroad?

It is also hard to see how anyone benefits from a Supreme Court locked away deep inside the Beltway.

A detailed analysis of the issue by a CLE instructor is available at The Ethics Scoreboard.

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