We first complained almost seven years ago about 6th U.S.
Circuit of Appeals Judge Danny Boggs' relationship with the
junket-organizing Foundation for Research on Economics and
Since then, the unfortunate business of his service on the
property-rights advocacy group's board of directors has been
argued both privately and publicly.
A Washington-based judicial watchdog group called Community
Rights Counsel has led the fight against judges accepting
FREE's expense-paid, ostensibly educational trips to resort-type
locations, where such diversions as fishing and golf are available
after the plenary sessions adjourn.
The CRC calls these freebies junkets. Judges say they go for
the intellectual exercise.
Boggs has exhibited a lofty contempt for the controversy,
but he may not be able to do so much longer.
Over the weekend, The Washington Post reported that others
on the federal bench have done the right thing: Douglas Ginzburg,
chief judge of the Washington, D.C., U.S. Circuit Court of
Appeals, as well as 3rd Circuit Judge Jane Roth quit FREE's
A day earlier, Maryland federal Judge Andre Davis did the
same, ending the CRC's ethics complaint against him, too.
That leaves Boggs. He's content to wait for a ruling by a
fellow chief judge from the 8th Circuit -- content, that is,
to let somebody else dictate his ethics to him.
The right path, of course, is the one already taken by Ginzburg,
Roth and Davis. They concluded on their own that serving as
FREE board members was no longer the right thing to do.
Ginzburg did it reluctantly. He applauded FREE's seminars
in vacationland and added, "I am not in a position to
be correcting the false impressions (about conflict of interest)
that appear in the press."
FREE argues that its seminars are fair and balanced. Its director,
John Baden, told the Bozeman, Mont., newspaper last week,
"What bothers the judges so much is the assertion that
we are anti-environmental, and that we run these boondoggles
to brainwash judges. Every judge on our board is hurt and
offended by the assertions that are made by an organization
that has no regard for the truth."
But as CRC attorney Douglas Kendall says, the three resignations
to date serve to make "the simple point that a judge
cannot sit on the board of an organization that takes money
from corporations to influence the outcome of environmental
Beyond any intellectually exquisite rejoinders that Boggs
offers, the fact is that judges shouldn't permit themselves
to serve on a board like this. Such an arrangement reeks of
high-level cronyism and puts a stink on the federal court
It really isn't possible, no matter what the 8th District's
chief judge decides, to square membership on FREE's board
with the Code of Conduct for United States Judges, which permits
only those civic and charitable activities "that do not
reflect adversely upon a judge's impartiality."
There simply must be some better way for FREE to promote its
libertarian views and free-market approaches to environmental
problems than organizing cushy getaways for judges, no matter
how balanced the public policy menu they offer.
What is especially delicious about all of this is that Boggs
offered himself as a moral arbiter with an attack on the integrity
of then-Chief Judge Boyce Martin in the famous Grutter
v. Bollinger case, the conclusion of which was a culminating
moment in the great national argument over diversity, quotas
and affirmative action.
The only 6th Circuit judge to write approvingly about Boggs'
extraordinary public attack on a colleague was Alice Batchelder,
who said that without such exposure "our claim to legitimacy
Borrowing from Batchelder, I would argue that as long as a
federal judge sits on the board of FREE, his claim to legitimacy
David Hawpe's columns appear Wednesdays and Sundays on the
editorial page. You can read them on line at www.courier-journal.com.