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CRC In The News

And then there was one: Boggs remains on advocacy group's board

The Courier-Journal
May 11, 2005
David Hawpe

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 Environment.

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 board.

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 cases."

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 system.

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 is illegitimate."

Borrowing from Batchelder, I would argue that as long as a federal judge sits on the board of FREE, his claim to legitimacy is compromised.

David Hawpe's columns appear Wednesdays and Sundays on the editorial page. You can read them on line at

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