Supreme Ethics Problem?
Jan. 23, 2006 — -- The following is a transcript of a Jan. 23 "Nightline" story:
Cynthia McFadden: Good evening. I'm Cynthia McFadden. On Capitol Hill tomorrow, the Senate Judiciary Committee is expected to support the nomination of Samuel Alito to the Supreme Court. And with the court in the spotlight, tonight we have an exclusive investigation. Unlike the Congress, now ensnared in the ballooning lobbying scandal, or even lower court judges, the Supreme Court does not have to abide by any specific ethics code. That's opened the justices to new criticisms about perks and power. ABC's chief investigative correspondent Brian Ross joins us live.
Brian Ross: Cynthia, what some call fact-finding missions, others call junkets. Judges have their own name for them, they call them educational seminars held at fancy resorts, all expenses paid by somebody else.
The Ritz Carlton Hotel in Bachelor Gulch, Colo., is one of the country's top resorts. Famous for its beautiful setting, its fly fishing and its five-star amenities. That's where Supreme Court Justice Antonin Scalia was playing tennis on the afternoon of Sept. 29 last year. But his absence back in Washington did not go unnoticed.
At the White House that same afternoon, John Roberts was being sworn in as the 17th Chief Justice of the United States Supreme Court. An historic occasion attended by every justice of the court but for Scalia.
Scalia's apparent snub of the Chief Justice was one thing. But some legal ethics experts say his presence at the resort raises even larger questions about what critics call judicial junkets.
Stephen Gillers, New York University School of Law: It's unfortunate, of course, that what kept him from the swearing in was an activity that is itself of dubious ethical proprietary.
Ross: Justice Scalia spent three days at the luxury resort. ABC News reporters saw him on the tennis court, heading out for an afternoon of fly fishing, and speaking and socializing with members of the group that paid the expenses for his trip. It was a group whose name Scalia later declined to reveal when reporters asked him why he skipped the swearing in at the White House.
Justice Antonin Scalia: I was out of town with a commitment that I ... that I could not break. And that's what the public information office told you.
Reporter: What was that commitment?
Scalia: It doesn't matter what it was. It was a commitment that I couldn't break.
Ross: The commitment to a conservative activist group call the Federalist Society, which says this was no junket at all but a legal seminar, in which Justice Scalia taught a 10-hour course. According to the invitation, obtained by ABC News, members who attended were told they would get an exclusive and rare opportunity to spend time both socially and intellectually with Scalia. A number of Federalist Society lawyers practice before the Supreme Court.
Gillers: I think Justice Scalia should not have gone on that trip for several reasons.
Ross: Steven Gillers is a law professor at New York University and a recognized scholar on legal ethics.
Gillers: He's using the prestige of his office to ... to advance the interest of a group with a decided political/judicial profile. By having a Supreme Court justice at your group's fairly intimate, very posh event, you're lending the prestige of your office to that group. I mean, that's -- everyone would like that. And that's why he shouldn't have gone.
Ross: During the two nights he was at the resort, Justice Scalia also attended the scheduled cocktail receptions, one of which was sponsored in part by the same lobbying and law firm where convicted lobbyist Jack Abramoff once worked.
Gillers: You know, a lot of people would be embarrassed at that. I don't think Antonin Scalia will be embarrassed.
Ross: Should he be?
Gillers: Well, I think he shouldn't have gone. And therefore, I think he should be embarrassed whether or not the Chief Justice was being sworn in that day.
Ross: Scalia's trip did not violate the Supreme Court ethics code because there is no Supreme Court code of ethics.
Ronald Rotunda, George Mason University School of Law: All of the Federal judges, save the Supreme Court, are bound by judicial canons that for some reason that I can't figure out excludes the U.S. Supreme Court.
Ross: George Mason University law professor Ron Rotunda has written extensively on legal ethics and is a member of the Federalist Society. Rotunda says he's not troubled that Scalia chose to be in Colorado at the resort instead of the White House for the swearing in.
Rotunda: I think when you have a conflict, you know, just like you dance with the one that brung you. When you have a conflict, you accept -- you have to reject the second invitation. The organization doesn't have litigation before the judge. It's unlikely to have litigation before the judge. And so, I think it's a good idea that the rule allows them to attend.
Ross: An examination of Supreme Court disclosure forms by ABC News found that five of the justices have accepted valuable private club memberships. And one has accepted very expensive personal gifts.
NASCAR racing fan, Justice Clarence Thomas, has received tens of thousands of dollars in gifts in recent years, including an $800 leather jacket from NASCAR, as well as a $1,200 set of tires. And from one Texas conservative activist, a vacation trip by private jet and a rare bible, valued at $19,000.
Gillers: The rules dealing with gifts don't apply to Justice Thomas because these rules only apply to lower court judges.
Ross: When you saw the set of tires?
Gillers: It seems tacky, doesn't it? People give gifts to judges and justices because they have power. And they have power because of their position that they hold in trust. They hold those positions in trust. And to suggest that it doesn't matter, no one will care, seems to me to be whistling in the dark.
Ross: In fact, some argue that the Supreme Court is setting a bad example for other federal judges who have been criticized for accepting free trips to luxury resorts for educational seminars that critics call more judicial junkets. Like this seminar at an Arizona golf resort for federal judges, put on by a group which receives funding from major corporations. The fairways were full of judges who had spent the morning listening to speakers with a corporate point of view.
Douglas Kendall, Community Rights Counsel: I think the judiciary, Brian, is really at a crossroads right now. There's a multibillion-dollar influence-pedaling industry in Washington. And it really has the Federal judiciaries in its sights at this point.
Ross: The Arizona golf scene was the subject of an ABC News/"20/20" report in 2001. And the new chief justice, John Roberts, was asked about it during his confirmation hearings last year.
Sen. Russell Feingold, Democrat: So, I'd like to know, Judge Roberts, if confirmed, whether you will use your power as chief justice to set a high ethical tone for the federal judiciary by putting in place new codes of conduct that would prohibit judges from participating in privately funded "judicial education" that lets special interests essentially lobby federal judges.
Chief Justice John Roberts, Supreme Court: Well, I don't think special interests should be allowed to lobby federal judges. Stated that way, I think the answer is clear.
Ross: The only official comment from the Supreme Court and Justice Scalia was "no comment." And no official from the Federalist Society would agree to appear on "Nightline" tonight to talk about this.
McFadden: Now, Brian, there's no evidence, is there, that any of these freebies have influenced any judge in rendering an opinion on the Supreme Court?
Ross: Not at all, Cynthia. This is not about bribery or influence-pedaling but rather a question of appearance. And of course, it isn't just Justice Scalia. Justices at all ends of the political spectrum take plenty of these trips to lots of nice places, all paid for by somebody else. As Professor Gillers says, it's the appearance of justice that is threatened. And that's what's important.
McFadden: Brian Ross, thank you for that.