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Amid the uproar over Justice Antonin Scalia's duck-hunting
trip with Vice President Dick Cheney, I phoned a federal judge
I know to get his take on the matter. Speaking off the record,
the judge, a seasoned court veteran, sharply criticized Mr.
Scalia's judgment, first in going on the trip, and accepting
free rides on Air Force Two for himself and two relatives,
and then in refusing to step aside when the case challenging
the secrecy of Mr. Cheney's energy task force is heard next
Tuesday by the Supreme Court.
But the judge's disapproval instantly shifted from Mr. Scalia
to this editorial writer when I suggested a similarity between
the duck-hunting episode and a broader, less publicized judicial
travel outrage. I'm speaking of the well-attended "judicial
education" programs that are staged at resorts offering
excellent golf, fly-fishing and horseback riding and are financed
by private interests bent on influencing judges to curb federal
regulatory authority in areas like protecting the environment.
"It's a non-issue," the judge snapped at me, adding
that he'd attended such a seminar himself years ago and found
the discussions to be "interesting and informative."
The exchange had a familiar ring to it. Much as many members
of Congress resisted the 1995 gift ban, which barred lawmakers
from accepting free meals and other largesse from lobbyists,
many otherwise ethically alert judges are loath to relinquish
their compromising travel perks.
So the problem festers. An eye-opening report four years ago
by the Community Rights Counsel, an environmental group, revealed
that between 1992 and 1998, more than a quarter of the federal
judiciary - some 230 federal judges - took advantage of a
loophole in current ethical guidelines to accept the free
vacations. The report also noted a troubling correlation between
attendance at such seminars and rulings scaling back environmental
protections, suggesting that these gifts are affecting judicial
decisions. A new follow-up report by the same group finds
these strategic private seminars are continuing apace, having
been effectively protected by Chief Justice William Rehnquist
and other judicial leaders who have quashed formative efforts
at reform within Congress and by the American Bar Association.
Moreover, as the Community Rights Counsel recently set forth
in a formal ethics complaint, three federal appellate judges
- Judge Douglas Ginsburg, chief of the United States Court
of Appeals for the District of Columbia Circuit, and Judges
Jane Roth of the Third Circuit and Danny Boggs of the Sixth
Circuit - openly flout current limits on judges' off-the-bench
activities by serving on the board of the Foundation for Research
on Economics and the Environment. That group, an environmental
advocacy outfit, has both a strident antiregulatory profile
and gobs of money from energy industry interests to run educational/recreational
seminars for federal judges in Montana and elsewhere.
Unlike Mr. Scalia's now infamous rustic vacation with Mr.
Cheney, most garden-variety judicial junkets are unlikely
to become grist for a David Letterman Top 10 list. Still,
their harm to judicial integrity and impartiality in allowing
well-heeled special interests to wine, dine and lobby judges
under the deceptively neutral-sounding heading of "judicial
education" is profound.
No matter how they are framed, these privately financed trips
cannot be squared with a judge's fundamental duty to avoid
even the appearance of impropriety. Nor can they be justified
by the ongoing failure of the Congress to give judges the
considerable pay raise they deserve. For a special bar association
commission reviewing possible changes to the bar's influential
Model Code of Judicial Conduct, barring these junkets ought
to be an easy call.
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