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Ethics Scandal Rocks the Supreme Court!:
Reporter Brian Ross of ABC News' Nightline breaks a must-read exclusive story about a new ethics scandal at the Supreme Court: Justice Scalia missed Chief Justice Roberts' swearing-in ceremony because he was giving a series of lectures on constitutional interpretation in Colorado — and he even had the nerve to exercise during his trip!!! Here is the scoop:
  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.
  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.
  It remains unclear whether Justice Scalia will have to step down from the Supreme Court or face impeachment, as no Justice has ever missed a hearing as critical as a swearing-in ceremony before. Some scholars argue that having missed Roberts' swearing-in ceremony, Scalia lacks the qualifications to vote on cases heard by the Roberts Court. A group of law professors are rumored to be circulating a letter demanding that in light of Scalia's absence from the critical ceremony, Scalia's vote should now be ignored, and the vote of Justice Ginsburg (who was present) should be counted twice. Developing....
WB:
The only way to restore the balance on the Supreme Court and unite America would be for Justice Breyer to skip Judge Alito's swearing-in for an ACS event, which will hopefully include tennis.

If this doesn't happen, no one will be safe from judicial activism.
1.24.2006 10:19am
Justin (mail):
That wasn't nice. Some of us had hope.

The humor factor aside, I think Scalia's lavish lifestyle *should* raise some concerns, particularly given the Abrahmoff scandal. While I am certainly not implying that Scalia is corrupt, the Supreme Court must be beyond reproach to continue to act as a nondemocratic buffer. Scalia's actions can raise concerns about a less scrupulous justice following in his footsteps.

While I don't think Scalia should resign, obviously, do you really think drafting a judicial code of ethics in light of the abrahmoff scandal is that horrible of an idea? Some of what Justices get are far beyond what Congressmen are even allowed, such as reduced or free membership at the Burning Tree club in Bethesda, Md.

Or are you just waiting to be appointed and hone your golf game? :)
1.24.2006 10:20am
Abdul (mail):
I think you missed the real issue:

"Bachelor Gulch, Coloardo"

Scalia couldn't have called into question his Lawrence v. Texas jurisprudence any plainer than if he had been spotted at a Brokeback mountain premier.
1.24.2006 10:22am
Medis:
I agree the opening of the article is a little too breathless, but I also think this episode raises a fairly serious issue. In particular, I note:

"According to the event's invitation, obtained by ABC News, the Federalist Society promised members who attended the seminar an exclusive and 'rare opportunity to spend time, both socially and intellectually' with Scalia."

Moreover, Scalia apparently described this a commitment that he could not break.

This is getting dangerously close to--and perhaps crossing the line into--a special interest group providing opportunities to lobby a Supreme Court Justice, in return for which the Justice gets a free luxury vacation. And I agree with the new Chief Justice that such lobbying of federal judges, including Supreme Court Justices, should not be allowed to occur.
1.24.2006 10:27am
SimonD (www):
The humor factor aside, I think Scalia's lavish lifestyle *should* raise some concerns, particularly given the Abrahmoff scandal . . . While I don't think Scalia should resign, obviously, do you really think drafting a judicial code of ethics in light of the abrahmoff scandal is that horrible of an idea?
"Lavish lifestyle"? He was in Colorado to give a speech. He played some tennis. Big deal - I would hardly say it was unprecedented for executives at a business seminar to start their day playing a little squash. I went to a two-day conference once where I not only played some squash on the second morning, I - gasp! the horror! - had dinner in a nice restaurant on the first evening! Boy, I sure do like my "lavish lifestyle."

How can anyone - perhaps other than by way of comparison to Justice Souter's hermit-like existence - seriously suggest that a speaking event is "lavish"?

I have no idea if Scalia plays classic, platonic tennis any more than he plays classic, platonic golf, but I somehow doubt he and a partner play atop two gilded white elephants while smoking $500 cigars and drinking $1200 brandy. "Lavish lifestyle"? When did getting in some excercise on a business trip become "lavish"?
1.24.2006 10:30am
mh:
I was really disturbed by this non-story this morning. Not by anything related to Scalia's Colorado trip, but rather by ABC's willingness to smear for the sake of smearing. Scalia did nothing wrong, and Ross said as much at the end of the story, but that did not stop them from broadcasting it.

Perhaps Scalia should have wasted taxpayer dollars for a private jet to fly him between the conference &DC for Roberts' swearing-in?

And the media wonders why TV cameras are forbidden in the Supreme Court.
1.24.2006 10:34am
Gino:
This is the biggest scandal since Nightline blew the lid off the whole vitamin potency farce. Three cheers for investigative journalism!
1.24.2006 10:38am
Nobody Special:

This is getting dangerously close to--and perhaps crossing the line into--a special interest group providing opportunities to lobby a Supreme Court Justice, in return for which the Justice gets a free luxury vacation.


Yeah, we better watch out. Those evil Federalist Society members might turn Scalia into a judicial conservative.
1.24.2006 10:40am
Hemingway:
Of course, had a justice attended a legal seminar at a law school, where the topic was using international "law" to "interpret" the Constitution, Nightline wouldn't care. This "investigation" is just an excuse for the left to throw a tantrum over the fact that it doesn't have an absolute monopoly (just a near monopoly) on "judicial education."
1.24.2006 10:41am
Medis:
SimonD,

As an aside, it was a Ritz-Carlton ski resort. A quick look around on the internet suggests room rates could be around $500 or more, although I am sure they got some sort of group rate.

In any event, I agree there is a bit of a line-drawing problem here. It should be OK to invite a Supreme Court Justice to come and give a speech to your group, and it is reasonable for that group to pay for that Justice's overnight stay at a nice local hotel. On the other hand, arranging free luxury resort trips for a Justice in order to give people in your group an opportunity to lobby that Supreme Court Justice sounds like exactly the sort of thing Chief Justice Roberts believes is unethical (and I agree).

In some cases, of course, it may be a little difficult to tell the difference. But in this case, unfortunately, it looks to me like this trip may be well over the line into the lobbying category.
1.24.2006 10:43am
Don Davis (mail):
I do have a question... How is it that during confirmation hearings nominees refuse to comment on cases, etc. because "they do not want to prejudge" cases that might come before them. Yet at the same time sitting justices attend confabs and give their views on x, y, z... What's the theory here??
Don
1.24.2006 10:45am
KevinM:
I found it interesting, though not earthshaking. I don't see an ethical violation here, but, if factual, it may reveal something about the particular kind of Justice, or person, that Justice Scalia is. And it does bear a family resemblance to previous concerns raised about him (think duck hunting). But, Mr. Kerr, why the heavyhanded Limbaugh-style sarcasm? Your readers can make up their own minds.
1.24.2006 10:45am
AF:
Orin, you're mocking a straw man and belittling a legitimate story. Sure, it's not an impeachable offense. But it raises salient questions about judicial gifts. And it was poor form, to boot. As for liberal bias, I think you have to take into account that Scalia is the only bona fide celebrity on the Supreme Court, because he's the only one with a colorful public persona. If he wants to be a star -- and he does, and he is -- he's got to take the good with the bad.
1.24.2006 10:47am
B. B.:
Good riff on Drudge.
1.24.2006 10:49am
Medis:
Nobody special,

It appears that I am a bit less cynical about Justice Scalia than you are. I don't think Scalia would necessarily vote according to the dictates of the Federalist Society in any case (indeed, I don't think the Federalist Society is nearly monolithic enough to make that a coherent thought). So, the opportunity for individual members of the Federalist Society to lobby Scalia is not necessarily valueless.

Hemingway,

Although we cross-posted, I obviously think some of the details of your hypothetical are important. For example, you change the facts to have the Justice attending a seminar at a law school, rather than a Ritz-Carlton ski resort, and I think that is an important change.

Indeed, if the ACS invited Justice Ginsburg to conduct a seminar as part of a weekend stay at the Four Seasons on Maui, and invited its members to come spend time on the beach chatting with the Justice, I'd have all the same problems.
1.24.2006 10:52am
Nobody Special:

For example, you change the facts to have the Justice attending a seminar at a law school, rather than a Ritz-Carlton ski resort, and I think that is an important change.


Where do you think that law schools put the Justices? Motel 6? And where do you think the faculty events are held? Denny's?
1.24.2006 10:56am
Justin (mail):
Medis, while I agree with you, I'm going to need a few hours to get the mental picture you drew out of my head.
1.24.2006 11:00am
Justin (mail):
NS,

Columbia Law School typically invites speakers to eat at the Faculty House, which is nicer than Denny's but hardly Jeanes Georges. They put up speaker guests at the University's semiprivate hotel, at rates that would cost a father of a student $125 a night. Hope this helps.
1.24.2006 11:01am
The NJ Annuitant (mail):
I hate to be a kill joy, but this strikes me as a lot of nothing.
1.24.2006 11:06am
Andy Freeman (mail):
> As an aside, it was a Ritz-Carlton ski resort. A quick look around on the internet suggests room rates could be around $500 or more, although I am sure they got some sort of group rate.

> It should be OK to invite a Supreme Court Justice to come and give a speech to your group, and it is reasonable for that group to pay for that Justice's overnight stay at a nice local hotel.

If the event is at the Ritz and everyone else is staying at the Ritz, is it really reasonable to have the guest of honor staying at the local HoJos?

Or, are events at nice hotels simply off limits?
1.24.2006 11:08am
Medis:
Nobody Special,

Having had some experience with such events, they usually try to put the invited speakers in decent (3-starish) chain hotels (Hilton, Marriott, etc.) near the law school. In other words, there is an obvious, and very wide, middle-ground between Motel 6 and the Ritz-Carlton.

That said, if a law school happened to get a great deal on rooms at the local Four Seasons or Ritz, then good for them. I think you are trying to suggest I want some ridicuously strict rule on accomodations, but that is not my point.

However, when you start talking about weekend trips to luxury destination resorts nowhere near a law school, and are specifically advertising the opportunity to interact socially with the judge, you are crossing the line from merely providing accomodations to the judge into arranging a lobbying junket. And I don't think that is an unimportant line to cross.
1.24.2006 11:09am
Nobody Special:
I ask only because the law school I attended put people up at the W usually, which is pretty damned nice, if you're into trendiness.
1.24.2006 11:11am
Medis:
Andy,

But why is the event at a luxury destination resort in the first place? If the purpose of doing that is to attract the Justice for an extended stay, and thus give your membership an opportunity to lobby the Justice, then the entire event is unethical, not just the part about putting the Justice up in the same resort.

In general, I have a hard time believing people do not actually understand the difference between a law school inviting a Justice to speak at the law school, and putting the Justice up for a night at the local Marriott, and a special interest group inviting a Justice to a luxury destination resort for a weekend, advertising the trip in part as an opportunity for the membership of the group to interact socially with the Justice.
1.24.2006 11:15am
Jon Henke (mail) (www):
Interestingly, there was somewhat less attention/intrigue surrounding Souter and Kennedy's non-attendance at the funeral service of Justice Rehnquist.

In fact, it seems ABC News' only mention of that was "Absent were Justices Anthony M. Kennedy and David Souter."

Make of that what you will.
1.24.2006 11:20am
gr (www):

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.


Do judicial junkets happen? I'd be more interested in knowing about it at the district court level. I doubt parties can take judges on trips. But maybe the Chamber of Commerce, or the Club for Growth, or the Association Against Strict Liability? Ok. I made that last one up.
1.24.2006 11:21am
Jack John (mail):
Medis is obviously not a member of the Federalist Society.

This is not a sham event disguising a luxury vacation being smuggled to Antonin Scalia. It is a serious lecture that he gives every single year. It is always held in the same place, in the same hotel in Colorado. It offers CLE credits.

The reason such "swanky" accomodations are provided is due the overwhelming number of people who sign up. Tickets go on sale months in advance, and are sold out in weeks. Small hotels simply cannot accomodate 250 people, nor do they have a room large enough for a dinner or to serve as a lecture hall.

There is a group rate that applies, and the cost is actually quite low (especially considering the CLE credits).

As to the purported inconsistency of skiing in Colorado and voting against gay marriage, Scalia supported the position taken by the majority of Coloradans in Romer v. Evans. The position he took in Romer v. Evans is entirely consistent with the position he took in Lawrence v. Texas. There is no inconsistency.

As to the concern about lobbying, that concern is speculative and the possibility exists anywhere at any time. One could "lobby" any Justice at any event where there is an opportunity for questions and answers. This "lobbying" argument truly has no merit: Antonin Scalia was a respected professor of administrative law and he gives a serious lecture to professional lawyers who attend the event. That there is a dinner after the lecture -- so that those lawyers may network amongst themselves and so forth -- is really irrelevant. At every legal symposia or colloquia I have ever attended there has been a dinner or wine and cheese event afterwards at which questions are asked of the panel speakers. That such a speaker or lecturer is a sitting judge or a government official does not make pleasant social interaction improper.
1.24.2006 11:23am
Jack John (mail):
Oh, and I believe the reason it takes place in Colorado is that Justice Scalia would go skiing there anyway. He takes time off from his vacation to give the lecture.
1.24.2006 11:26am
Cabbage:
You lefties! :)

Don't you see that you're proving Orin's point? He rightly mocks a breathless scandal-mongering non-story story and you guys just fall all over yourselves in your earnest, humorless, holier-than-thou, "I would never attend a conference at a hotel with more than 2 stars" ridiculous posturing.

Priceless!
1.24.2006 11:27am
Medis:
Nobody Special,

A quick look around suggests that W hotels are usually four-starish place with rates starting around $200. That certainly seems within the general range I had in mind.

And again, I don't want to make this sound like a hard line against law schools, or indeed other special interest groups, putting up judges in nice hotels. But as I said before, I have a hard time believing that people don't understand the difference between what we are talking about and arranging a lobbying junket, even if in some hypothetical borderline cases it may be hard to tell which category an event falls into.
1.24.2006 11:28am
WB:
Medis,

Please restate your point one more time. I'm not sure that the other commenters understand.

Are you saying that the Ritz-Carlton is, in fact, an expensive hotel? And are you saying that Scalia's trip may be viewed as an opportunity for members of a special-interest organization to lobby a Supreme Court justice?
1.24.2006 11:32am
ChrisAllan (mail):
I thought this was BS until I read the full story. I think ABC could have gotten more hype if they had played it as a Scalia snub because he wanted to be Chief or because Scalia didn't believe Robert's was smart enough to be on the Court.
1.24.2006 11:32am
Jack John (mail):
For the last time: it is not a lobbying junket. It is a serious lecture, much like those Antonin Scalia gave when he was teaching administrative law at the University of Chicago. It is akin to Justice Kennedy traveling to nice digs in Europe to give lectures in American constitutional law to foreign law students.
1.24.2006 11:32am
Medis:
WB,

Fair enough--a series of different posters made essentially the same argument, and I responded as I thought appropriate, but you are right that I am being very repetitive as a result.
1.24.2006 11:35am
Bread and Circuses (www):
Quoth Hemingway: This "investigation" is just an excuse for the left to throw a tantrum over the fact that it doesn't have an absolute monopoly (just a near monopoly) on "judicial education."

While the story may not be as big as all that, I think you're seriously overestimating the interest of the MSM in legal education.
1.24.2006 11:37am
Charlie (Colorado) (mail):
I can't decide whether Orin's original sarcasm, or the humorless gits following up, are more amusing.

Almost as amusing as the notion that engaging intellectually with Justice Scalia is "lobbying". From what I've read, it sounds like it would be more like voluntarily allowing yourself to be beaten with 3 irons.
1.24.2006 11:39am
Duncan Frissell (mail):
Columbia Law School ... put up speaker guests at the University's semiprivate hotel, at rates that would cost a father of a student $125 a night.

That's the nominal (subsidized) price. The implicit price of
a hotel room in NYC is closer to $300-400/night.

The FS holds events at places like the R-C because they're Republicans whose personal philosophy makes them more financially successful than leftists and they can afford it.

If lefties decided to study, work hard, get married, and lead sober lives, they'd have more money too.
1.24.2006 11:51am
A.S.:
Recently, Justice Ginsburg attended a junket to Newport, RI. This junket was a special interest junket, and we can probably expect that Ginsburg now gives the people who lobbied her at this junket special attention. What she said is posted here.

Does anybody know the phone number for ABC News? I'd like to pass along this tip. I'm expecting they'll have a very special Nightline about this junket any day now.
1.24.2006 11:51am
NaG (mail):
Of course, judges are well-known to base their jurisprudential decisions on the quality of their free hotel rooms. Well, that or what foreign courts say.
1.24.2006 11:52am
El Capitan (mail):
Couple things:

(1) The Federalist Society doesn't litigate cases to my knowledge. If this were the Institute for Justice or something like that (or a paid-for duck hunting trip in Louisiana), there'd be a much stronger issue. As it stands, I'd bet about a million dollars that plenty of organizations have invited Supreme Court Justices to speak at their events, and might even have put them up at a nice hotel (incidentally, the whole debate about the "niceness" of the hotel seem pretty silly. If they're putting him up at a HoJo, they're still "lobbying" him, if doing a poor job of it). Incidentally, I'm pretty sure that Duke used to put Judges that came into town to judge our moot court competitions up at the WaDuke, which is about as nice a hotel as one can find.

(2) No offense, but do any of you guys practice in states with CLE requirements? I've done several (non Federalist society) CLE "junkets" in my career, and almost all of them have had sitting state and/or federal court judges speaking, and many-if-not-all of them have been in swanky places (eg the 2005 ABA Forum on Franchisng held here: http://www.grandelakes.com/) I'd be shocked if a judge with an overnight stay didn't get it comped, and I'm not prepared to say he shouldn't. Heck, the ABA is the organization that rates Judges and Justices if they're ever "promoted" to the federal court system, so it would seem all ABA CLE would be off-limits under the standard that some are drifting toward.

(3) Don Davis -- Justices actually do get into trouble when they give their plain view of an issue before the Court (eg Scalia on Pledge of Allegiance). Most of the Justices I've seen speak tend to avoid saying how they feel about specific issues, and instead speak in broader themes (eg Stevens' recent comments about the fairness of the death penalty, which didn't really lay out any specific views, but underscored a definite "growth" in his jurisprudence).
1.24.2006 12:11pm
Gordo:
Actually, if Scalia can't vote, then Justice Thomas should get two votes, not Justice Ginsburg.

Suddenly, the hubbub seems to have died down ...
1.24.2006 12:16pm
Medis:
WB,

And I would note that a new series of posters are also making the same basic argument.

But I would also note that some are raising the interesting question of whether lobbying junkets actually further the ends of the lobbyists--although obviously the stakes are often high enough that the amounts spent on such efforts are justifiable even if your odds of favorably influencing the person in power are very low.

Still, as has long been recognized in judicial ethics, great damage may be done to the reputation of the judicial system even if the lobbied judges never in fact change their votes. Indeed, I presume that was part of Chief Justice Roberts' thinking on the subject.
1.24.2006 12:16pm
Neal Lang (mail):
I have no idea if Scalia plays classic, platonic tennis any more than he plays classic, platonic golf, but I somehow doubt he and a partner play atop two gilded white elephants while smoking $500 cigars and drinking $1200 brandy. "Lavish lifestyle"? When did getting in some excercise on a business trip become "lavish"?

Obviously the key to this "kerfuffle" is of course is in the word "Plutonic". The question is, if "Plutonic Guardian" Scalia's owed more deference to Head "Plutonic Guardian", Roberts, or did he, as a more senior "Plutonic Guardian", have the right to "blow off" the new boss in deference his "undisputed right", as a "Plutonic Guardian" of the "Republic", to assuage his pursuit of a "Lavish lifestyle"?
1.24.2006 12:20pm
Attila (Pillage Idiot) (mail) (www):
Nino's in a lot of trouble. Missing the new chief's swearing in. Now, he's going to get all the bankruptcy, tax, and ERISA decisions to write.
1.24.2006 12:24pm
chris (mail):
I'm an academic researcher that like most people in my position get offers to come speak from all over the country, and many times, all over the world. The deal is that you don't get paid, but your hotel and airfare (coach) are paid and you get taken out for a nice dinner. For those more famous than me, the deal is the same, but you get more offers, and perhaps a nicer dinner or better hotel. For anyone who has been in this position, the idea that the nice dinner or hotel room is the reason for going and the talk is the cover for getting the room and dinner is just ludicrous. If somehow we could give the talk and have some time to interact with the students and professors there, but travel could be acheived through a magic teleporter, we would choose that every time and accept more invitations. Business travel, no matter how luxurious, stinks. Anyone who does it would agree.
1.24.2006 12:25pm
Anderson (mail) (www):
Scalia should be punished by being the guest of honor at a swearing-at ceremony.
1.24.2006 12:32pm
Medis:
El Capitan,

(1) I'm not sure whether or not a special interest group actually litigates is a crucial consideration. Obviously, it would be particularly troubling in the group in question frequently litigated before the relevant court, but as long as the members have an interest in the business of the Court, then the potential benefits of lobbying arise.

Incidentally, at the risk of repeating myself once again, it is not about the niceness of the hotel per se. Again, it is about the combination of specifically scheduling an event at a luxury destination resort, comping the judge, and then advertising the event as an opportunity for members of the group to interact directly with the judge. And I really doubt people cannot see the distinction between that and a law school putting up a visiting judge for the night at a nice local hotel.

(2) Of course lawyers can schedule nice events for themselves, including CLE events, but I do think you could get into a serious problem if you comp judges who attend such events. On the other had, it would be less of an issue if the event was not organized by a particular special interest group, and not promoted as an opportunity for members of the group to get direct personal access to the judge.

In general, some of these lines may not be hard, but that doesn't mean there is no line at all. And because there is little harm to erring on the side of caution, I'd like to see Chief Justice Roberts codify some of this with relatively bright lines, even if those lines may be somewhat overinclusive. And surely Justice Scalia would not object to that preference for bright lines.
1.24.2006 12:32pm
Robert Schwartz (mail):
Almost as big a scandal as the President reading Jung Chang's bio of Mao.
1.24.2006 12:33pm
Medis:
chris,

Genuine business travel may in fact stink. But the operative question is whether this is in fact genuine business travel. Again (sorry WB), we all understand the practice of putting up business guests in nice local hotels. But arranging trips to destination resorts is not necessarily the same sort of "business".
1.24.2006 12:37pm
steveh2 (mail):
Does anyone beside me think that if a judge wants to attend a private function, he should just pay his own travel expenses?
1.24.2006 12:47pm
Medis:
steveh2,

That would certainly be a simple and thus relatively bright line rule, and hence not a bad idea. I suspect the notable counterargument will be that legal education benefits from groups being able to pay for the travel expenses of visiting judges, but I'm not sure that is truly a compelling argument.
1.24.2006 12:53pm
Neal Lang (mail):
In the early nineties, dozens of projects were created to export American legal expertise and ideas. International organizations, universities, and private groups began arranging meetings between American judges and their foreign counterparts. New York University sponsors frequent international judges' conferences at its Villa La Pietra, in Florence, and every year Paul Gewirtz, a professor at the Yale Law School, brings senior judges from around the world to New Haven. Most of the Justices on the Supreme Court have participated in some of these exchanges. (The exceptions are Souter and Thomas, who generally avoid foreign travel.)

Kennedy happened to spend his summers in the city where the most important international judges' conference takes place. The Salzburg Seminar was founded in 1947, by three young Harvard graduates who thought that Europe needed a place for the study of American ideals. They raised a few thousand dollars and rented the Schloss Leopoldskron, an eighteenth-century palace that had fallen into disrepair after being seized by the Nazis. The seminar became known as the "Marshall Plan of the mind," and it remains a meeting place for scholars and judges. Since 1971, nine Supreme Court Justices have attended sessions at the Schloss, many of them several times. Kennedy has participated in four seminar events, and even during summers when he is not officially involved, he visits the Schloss frequently to meet with foreign colleagues.

Kennedy went to the Schloss after his class, to have lunch with Richard Goldstone, a former justice of the South African Constitutional Court, who was in Salzburg to deliver a lecture and, like Kennedy, was eager to meet his foreign counterparts. Goldstone is among the world's most widely admired judges; the former chief war-crimes prosecutor for the United Nations, he is now a member of an independent commission investigating the oil-for-food scandal at the U.N. The Schloss Leopoldskron has tight security by Salzburg's relaxed standards, but not because of the jurists who congregate there. The palace was the setting for several scenes in "The Sound of Music," the 1965 movie, and endures more or less constant traffic from fans. (A sign on the wall closest to the street reads, in English, "Trespassers Will Be Prosecuted—Including Tour Groups.") The two men dined on the second floor, in a room adorned with mirrored panels and gilt sconces, which had been reproduced on a soundstage to create the von Trapp ballroom. From: SWING SHIFT - How Anthony Kennedy's passion for foreign law could change the Supreme Court.

Ah! "Plutonic Guidian" Kennedy really knows how to assuage his pursuit of a "Lavish lifestyle"! "Schloss Leopoldskron, an eighteenth-century palace" indeed - now that is a setting fit for a "Plutonic Guardian".

Of course, considering Kennedy's (and other "Plutonic Guardians") deference to citing "international law and jurisprudence" in his opinions, it appears the stated purpose of these "lavish junkets" - the "export American legal expertise and ideas" - seems to be failing.

"Lord how it's hard to be humble... " when you are a part of the "Marshall Plan of the mind"!

Considering Kennedy's close association with a member of the "independent commission investigating the oil-for-food scandal at the U.N.", one might wonder whether or not the good Justice may need to recuse himself regarding matters associated with "Operation: Iraqi Freedom". Needless to say, anything even remotely related to the "Kyoto Treaty" must be "verboten" to him, as well.
1.24.2006 1:17pm
Bleepless (mail):
Shock! Horror! He also has a dumb nickname. Out he goes!
1.24.2006 1:17pm
SimonD (www):
I didn't realize (per Jack John) that this was an annual event. I might have to pony up for the tickets next year; I'll pay a couple of hundred bucks to go be a Scalia groupie "in the flesh" as it were.
1.24.2006 1:19pm
Medis:
steveh2,

In fact, insofar as we deemed the appearance of federal judges at private events for the purpose of legal education a public good, we could actually give each federal judge some sort of publicly-funded travel stipend for this purpose.
1.24.2006 1:24pm
Mr. Java (mail):
Let's take Justice Scalia and the Federalist Society out of this picture. Some people seem to be reflexively defending him and the Federalist Society, perhaps cause they are members or ideologically sympathetic to Scalia.

The real issue is that NO Justice should go on ANY trip funded by any group, including law schools. They should pay their own way, including hotels and meal costs, or not go. If we think that Supreme Court Justices are undercompensated, then we should increase their salaries. There should be no financial link between ANYONE and these Justices. Yes, this means that the liberal justices shouldn't be going on lavish trips to Europe where people tell them to pay more attention to foreign law when interpreting the U.S. Constitution.

Orin's approach is totally inappropriate, because it transforms an important and serious issue into something else. It is not good when OUR public servants, whether they be in the executive, legislative, or judicial branch receive benefits from third parties. There should be ZERO tolerance for any of this.
1.24.2006 1:24pm
Neal Lang (mail):
Does anyone beside me think that if a judge wants to attend a private function, he should just pay his own travel expenses?

Does anyone besides me think that if this "perk" of a Federal Judge were removed that we might need raise their salaries? Could Kennedy really afford to stay at the "Schloss Leopoldskron" on his own "nickel"?
1.24.2006 1:24pm
Neal Lang (mail):
Yes, this means that the liberal justices shouldn't be going on lavish trips to Europe where people tell them to pay more attention to foreign law when interpreting the U.S. Constitution.

Or, perhaps, it may just mean that service on the Supremes will become a privilege reserved for the "filthy rich".
1.24.2006 1:29pm
Neal Lang (mail):
Interestingly, there was somewhat less attention/intrigue surrounding Souter and Kennedy's non-attendance at the funeral service of Justice Rehnquist.

In fact, it seems ABC News' only mention of that was "Absent were Justices Anthony M. Kennedy and David Souter."

Make of that what you will.

Of course, Chief Rehnquist, unlike Chief Roberts, could have cared less at the time. What is it about these Republican Supremes appointees snubbing Republican appointed Chiefs.
1.24.2006 1:35pm
Cornell3L:

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. (Emphasis added)


I won't discuss the "junket" aspect of this story since it's been commented on thoroughly above. I will say this though: Even if Scalia loathes the fact that he wasn't nominated for the C.J. post, and that Roberts should feel snubbed by Scalia's absence at his swearing-in ceremony, why is that relevant as a news story? Does ABC actually believe that the personal relationships between the justices ultimately matter in their decision making? If that's true, then why did the Chief Justice join in Scalia's dissent in Gonzales v. Oregan? Why did both of them join Thomas' dissent in the latest 5-4 decision, Central Va. Community College v. Katz? Heck, Scalia and Ginsburg are such great friends, even spending New Year's together each year, and yet rarely agree in close cases. This is truly a non-story.
1.24.2006 1:37pm
KMAJ (mail):
This is a straw man with no substance. Unless, one is predisposed to an elitist position that ONLY law schools should have the right to have Supreme Court justices give speeches and their law professors (a majority of them left leaning in their personal political beliefs) be the only ones allowed to have access to them in a private setting.

One would think that any justice in such a setting, as Scalia was, would be wise enouogh not to give specific opinions on cases that are or will come before the court. This attempt to smear by innuendo and hypothetical is part and parcel of how low the political arena has sunk.
1.24.2006 1:38pm
Charlie (Colorado) (mail):
The real issue is that NO Justice should go on ANY trip funded by any group, including law schools. They should pay their own way, including hotels and meal costs, or not go. If we think that Supreme Court Justices are undercompensated, then we should increase their salaries. There should be no financial link between ANYONE and these Justices. Yes, this means that the liberal justices shouldn't be going on lavish trips to Europe where people tell them to pay more attention to foreign law when interpreting the U.S. Constitution.


This is an especially interesting proposition, considering that by far the most common litigant (one side or the other) in the Supreme Court is the United States.

So, who pays for Nino's travel if Nino pays for it himself?
1.24.2006 1:39pm
A.S.:
Of course, Chief Rehnquist, unlike Chief Roberts, could have cared less at the time.

He could have? How?
1.24.2006 1:40pm
Neal Lang (mail):
Actually, if Scalia can't vote, then Justice Thomas should get two votes, not Justice Ginsburg.

Suddenly, the hubbub seems to have died down ...

Actually, you have expanded the "hubbb" with obviously "sexist" remarks! Also, giving Thomas 2 votes comes very close to the Supremes using "racial preference" in a blatant "quota system", IMMHO.
1.24.2006 1:40pm
Mr. Java (mail):
Neal,

Your point about the idea that only the "filthy rich" serving on the Supreme Court is full of ignorance. As a student at Harvard Law School, I can tell you there are plenty of people who would LOVE to serve on the Supreme Court with the mere $194,200 they are paid a year, even without being provided free trips.

You obviously have a skewed view of money. Ordinary people find it possible to survive on a $194,200 salary. Further, greed for money is not the thing motivating EVERYONE. If you don't want the job of Supreme Court Justice cause the salary isn't enough for you, I will go ahead and take that job. And Im NOT filthy rich.
1.24.2006 1:43pm
Justin (mail):
Usuaully, the comment section here is rivaled only the comment section of Crooked Timber in the ability to have a rational discourse on legitimate issues. This thread seems to be a sad exception.

For instance, I'm not sure whether Neal's argument is that gifts and travel *is* a serious issue and it affects more than Scalia or that it is *not* a serious issue and doesn't affect anyone. My only understanding is that Neal is willing to support any self identified conservative. But this is neither here nor there.

Furthermore, there is a hole host of comments about how the "liberals" on this site who are concerned with corruption and the appearance of corruption on the court are only results-oriented anti-Scaliaists (this seems absurd - if Scalia is removed from the court, we will only get a younger conservative such as Luttig). As far as I can tell, not a single "liberal" on this site think the issue is relevant only as a reflection on Scalia, and instead a reflection on the need for judicial codes of conduct vis a vis the Supreme Court in general.
1.24.2006 1:45pm
Terrence Berres (mail) (www):
This is "news" now? Doesn't anyone on the legal beat ever look at the Federalist Society's web site?
1.24.2006 1:47pm
Mr. Java (mail):
Charlie,

Give me a break. The United States is not a focused interest like particular individuals or groups. We have this thing called "lifetime tenure" and a guarantee that salaries can't be reduced written into the Constitution PRECISELY to ensure that members of Congress and the President can't manipulate the Court via their salaries. So your comparison of the U.S. Government to private groups makes NO sense. You really should THINK before you speak. A superficially appealing point is nonsense with even a LITTLE reflection.
1.24.2006 1:48pm
Neal Lang (mail):
He could have? How?

That is the point! Being dead, Rehnquist can overlook the "Insipient slights" of jealous former colleagues. Roberts, on the other hand, being alive, but junior to his other Supremes colleagues, may be more interested in demanding a "modicum of respect" from ALL his new High Court "peers". Personally, I didn't realize how badly Scalia wanted the position of Chief.
1.24.2006 1:50pm
Neal Lang (mail):
You obviously have a skewed view of money. Ordinary people find it possible to survive on a $194,200 salary.

Survive, perhaps, but how can you afford to live in the "DC Area" on such a pittance. Even the POTUS is provided housing, servants and food, plus free travel and lavish entertainment, at taxpayers' expense - in addition to his salary. Besides, how could one afford to send their 5 kids to Harvard Law School on just a $194,200 salary? Survive? Yes. But have a "European Vacation" at the "Schloss Leopoldskron", no way. You wont find those "digs" popping up on "Expedia.com"!
1.24.2006 2:00pm
Neal Lang (mail):
As far as I can tell, not a single "liberal" on this site think the issue is relevant only as a reflection on Scalia, and instead a reflection on the need for judicial codes of conduct vis a vis the Supreme Court in general.

Just like you "Leftist elitists" - always demanding more and more regulation. Haven't heard: "If it ain't fixed, don't break it!"

IMMHO, this particular kerfuffle - when compared to Chief Justice "diktat" that the opinions of 5 Supreme Court Justices is the "Supreme law of the land", as opposed to the Constitution is quite silly. After all, the Supremes, following Marshall's lead in Roe v. Wade have "legalized" the murder of over 40 million innocent human beings - far greater than the body count run up by "German Courts" under the direction of Hitler and the Nazis.

Pardon me if I don't get too excited about Scalia playing tennis with conservative legal mind, or Kennedy vacationing in the Bildebergers backyard, for that matter.
1.24.2006 2:17pm
Neal Lang (mail):
Furthermore, there is a hole host of comments about how the "liberals" on this site who are concerned with corruption and the appearance of corruption on the court are only results-oriented anti-Scaliaists (this seems absurd - if Scalia is removed from the court, we will only get a younger conservative such as Luttig).

Wow! "How the [Leftist Elitists] on this site who are concerned with corruption and the appearance of corruption", hey! Then how do you explain how these same unthinking [Elitist Leftist] lent such non-critical total support in the 2000 election to Algore, author of the infamous: "There is no controlling legal authority that says this was in violation of law" - legal opinion regarding his use of the White House Executive Office Building as a DNC "boiler room operation" to raise money for his and "Slick Willie's" re-election campaign in 1996?
1.24.2006 2:29pm
papashazz (mail) (www):
After watching Brian Ross smear Justice Scalia, I observed that he dismissively noted the absence of a code of ethics for Supreme Court Justices.

Well, Brian, did you give any thought as to who would enforce such a code? And what would be the punishment? As Volokh satirically points out, are you going to take away his vote and substitute another Justice's?

I am sure the court considered this, and decided they were enough of grownups to be able to make a determination as to what is or is not appropriate. If Roberts has a concern, I am sure he will make it known to the offending Justice, which frankly is how adults should handle matters like this.
1.24.2006 2:30pm
Medis:
Since I was curious, I looked up the Schloss Leopoldskron. The best information was on venere.com (for the equally curious). In my opinion, some of the public rooms looked very nice, the bedrooms a little less so.

Anyway, apparently the average cost per room per night is around 135 Euros (about $166 at today's conversion rate). So, personally I would be fine with requiring Justice Kennedy to pay his own way.
1.24.2006 2:31pm
VC Reader:

This is getting dangerously close to--and perhaps crossing the line into--a special interest group providing opportunities to lobby a Supreme Court Justice, in return for which the Justice gets a free luxury vacation. And I agree with the new Chief Justice that such lobbying of federal judges, including Supreme Court Justices, should not be allowed to occur.

I've been to a similar Federalist Society event and no one tried to "lobby" Justice Scalia. If someone had tried, I expect that Justice Scalia probably would have ripped their head off (like he did to anyone he disagreed with, like those who tried to insinuate that parts of his jurisprudence were inconsistent or wrong).
1.24.2006 2:34pm
Wintermute (www):
Well, the Cheney hunting trip wasn't a bit funny; "peculiar" might describe it.

I've railed for years about the West trips for judges, who mainly decide not to create a free and officially cite-able online case and rule reporting service, with the state-funded word-processed documents on their state-purchased computers, typed by state-paid employees. Rather, the judges usually insist on citations from traditional "official" reporters who give the judges the volumes free...oh, and also the trips. See your state's judicial ethics code for the exception for this crap.

I'm with Java on the bright-line rule, especially outside the academic setting. Ethics questions and questions of bias can be raised in this area, particularly by flamboyant, limits-pushing personalities like Scalia.
1.24.2006 2:38pm
Medis:
VC reader,

It is certainly an interesting question whether or not the Federalist Society could deliver on its promise to provide a "rare opportunity to spend time, both socially and intellectually" with Scalia. But I'm not sure I understand your general claim--a good lobbyist won't quarrel with the person in power, and generally will try to be very subtle if that is what is required.

Of course, as I also noted above, in general such lobbying, even if artfully done, may end up being useless. But I think the general rule of judicial ethics--to avoid even the appearance of impropriety--is a good one.
1.24.2006 2:42pm
Neal Lang (mail):
I've been to a similar Federalist Society event and no one tried to "lobby" Justice Scalia. If someone had tried, I expect that Justice Scalia probably would have ripped their head off (like he did to anyone he disagreed with, like those who tried to insinuate that parts of his jurisprudence were inconsistent or wrong).

But remember it isn't just ACTUAL CORRUPTION that we propose exorcise, but even the mere appearance of of corruption.
1.24.2006 2:47pm
Jerry Mimsy (www):

Of course, Chief Rehnquist, unlike Chief Roberts, could have cared less at the time.
He could have? How?

He could have been an atheist.
1.24.2006 2:48pm
KMAJ (mail):
Wintermute: "I'm with Java on the bright-line rule, especially outside the academic setting. Ethics questions and questions of bias can be raised in this area, particularly by flamboyant, limits-pushing personalities like Scalia."

Are you saying there is no bias in academia ? Academia is probably the one segment in society that has the most ingrained bias. The ideological skewing of authority representation (professorships) in academia is by far the most slanted of any influential segment of our society.
1.24.2006 2:50pm
Neal Lang (mail):
Anyway, apparently the average cost per room per night is around 135 Euros (about $166 at today's conversion rate). So, personally I would be fine with requiring Justice Kennedy to pay his own way.

Ah! A mere $166 per day! Is that European or American Plan? Obviously the "Schloss" isn't everthing it is "cracked up" to be. Boy, is Kennedy fortunate that President Bush's fabulous Economic Program has the Euro on the run. But what about the 1st Class Airfare?
1.24.2006 2:56pm
Neal Lang (mail):
He could have been an atheist.

Who "He"? And why on Earth would it matter if he were an atheist or not?
1.24.2006 2:59pm
VC Reader:
Neal Lang--But how can we get rid of the "appearance of corruption" when the definition proposed here seems to include the Justices talking to anyone who is not a court employee or in their immediate family.

For those of you who think that the ABC story has merit, I suggest you check out Tom Goldstein's comment over on SCOTUSblog. Mr. Goldstein is about as far from "Federalist Society material" as one gets (I believe he is pretty involved with ACS) and even he thinks the story is a hit piece designed to denigrate the judiciary.
1.24.2006 2:59pm
Neal Lang (mail):
Are you saying there is no bias in academia ? Academia is probably the one segment in society that has the most ingrained bias. The ideological skewing of authority representation (professorships) in academia is by far the most slanted of any influential segment of our society.

I suppose that depends on what your definition of "is", is.
1.24.2006 3:01pm
VC Reader:
Sorry, I linked to the wrong story. Goldstein's comment can be viewed here: Commentary: Justice Scalia, the Roberts Swearing In, and Tennis.
1.24.2006 3:01pm
Jutblogger (www):
Two things:
I absolutely love that some people took the bait on this and actually try to drum up a scandal. It really is priceless; totally hilarious.

Second, um, clearly the scandal-mongers don't attend CLE events or even law school events, or are not part of the planning, nor do they know federal judges personally. In order to GET lawyers to attend CLE, you usually have to plan it at a nice venue, with the opportunity for them to do something fun or relaxing. Oh, and they make more money than most other people, so they normally like to stay in nice hotels. I know, what I'm saying is shocking. Further, to get judges to come, you better damn well have it planned at a nice place. Are you kidding me? A Supreme Justice? In a Marriott? too funny, I mean, just plain funny.
And, knowing federal judges personally, having taken a few out to dinner, they normally do not allow you to comp them, because the rules require that they report to the Senate any gift of over $25, which I know most follow the requirement like scripture. You have no idea if they comped him or not, if he allowed them to, or if he paid half or whatever. Perhaps he paid and uses the opportunity to relax otherwise, part of a scheduled vacation every year (oh my god, another shocking concept).

Also, the canons encourage if not require judges to participate in such functions (i.e., participate in the legal education community), which you clearly aren't considering either.

priceless, truly.
1.24.2006 3:02pm
Neal Lang (mail):
Neal Lang--But how can we get rid of the "appearance of corruption" when the definition proposed here seems to include the Justices talking to anyone who is not a court employee or in their immediate family.

Now that is the question, isn't it? BTW, does anyone know of Anthony and Ted are related? And if so, what would be the greater "mere appearance of corruption" - Ted's vote to confirm Anthony, or Anthony being invited to Chappaquiddick Island for a family re-union at Ted's cottage?
1.24.2006 3:17pm
El Capitan (mail):
Responding to Medis's 12:32:

Actually, not litigating cases is a huge distinction. The essence of lobbying is some kind of "quid pro quo," eg, vote for this bill/earmark, and we'll give you campaign cash and golf trips to Scotland. If a Justice was going out to lunch paid for by someone with a case pending before the Court, you'd have a major problem (and a much better analogy), but that just isn't the case here.

Quite frankly, I agree with Tom Goldstein at Scotusblog that the Justices have too little public exposure, not too much. The standard that many are flirting with here would seem to imply that Justices and Judges couldn't attend any ABA CLE stuff without getting comped (and possibly would have problems with law school lectures) -- something that would have the effect of at least deterring some travel, and something that I think would be a bad and unnecessary prophylaxis, since it seems to me we can draw the line with much less restrictive means.

To be honest, I'd be perfectly comfortable with Justice Ginsburg giving a speech before the ACLU, and having her costs of overnight stay reimbursed. I'd have little fear that the next time an ACLU case came before the Court that Justice Ginsburg would say "I was going to vote to strike down that abortion law, but that Omni the ACLU put me up in when I gave that speech was awfully nice." This is even one step farther removed, and is completely un-disturbing (if that's a word, which I'm pretty sure it isn't).
1.24.2006 3:19pm
Neal Lang (mail):
If we think that Supreme Court Justices are undercompensated, then we should increase their salaries.

Isn't there a "glass ceiling", as to salary, based on that of POTUS or the Congress? Who in favors to tripling President Bush's salary, so the Supremes can make less than one-third the "take home" of a senior partner in a large regional law firm? Say, "Aye!"
1.24.2006 3:28pm
A.S.:
I believe the general standard in the law isn't that ANY "appearance" of impropriety is problematic, but rather that there is only a problem if a judge's impartiality might REASONABLY be questioned.

Frankly, to me, questioning a judge because he spoke to a convention and stayed in a hotel room is completely unreasonable.
1.24.2006 3:40pm
gramm:
you kids are so funny today.
1.24.2006 3:48pm
Some Guy (mail):
That was hilarious.
1.24.2006 3:50pm
Medis:
El Capitan,

Actually, the sort of quid pro quo you described isn't lobbying--that's out and out bribery. Lobbying just involves trying to persuade the decisionmaker to reach a certain result, without any such quid pro quo. That is why lobbying of members of Congress is generally legal--it is part of petitioning the government. But lobbying of judges is generally improper (the difference being that judges are supposed to make their decisions on the basis of the arguments made by the parties to the case, whereas people in Congress are free to listen to ideas and arguments from any source).

Anyway, I didn't mean to imply that bribery would not be worse than lobbying, nor that lobbying by a litigant would not be worse than lobbying by a non-litigant. Nonetheless, I think it is obvious that parties beyond the litigants can have a substantial interest, financial or otherwise, in the outcome of court cases, so I don't think an anti-lobbying rule limited to just litigants would make much sense.

Anyway, you say:

"The standard that many are flirting with here would seem to imply that Justices and Judges couldn't attend any ABA CLE stuff without getting comped (and possibly would have problems with law school lectures) -- something that would have the effect of at least deterring some travel, and something that I think would be a bad and unnecessary prophylaxis, since it seems to me we can draw the line with much less restrictive means."

But exactly how do you propose that we draw the line? I tried articulating a difference between the ordinary provision of accomodations and lobbying junkets, and it went over like a lead balloon (I think it is more workable than people have claimed, but obviously not in the face of resolute opposition). So, what is your proposed less restrictive rule?

Finally, on Goldstein:

I actually think his opinion on this subject is indeed tainted by the fact that he would be a potential beneficiary of relaxed rules. In other words, he is in the business of selling influence with the Court, and although that doesn't mean he wants to be unethical, it does mean he is not a neutral commentator on this issue.

Indeed, I would think his comments are proof that this really isn't a partisan issue, as some have claimed. Goldstein writes, "Events like these are similar to those hosted by the American Constitution Society, which more liberal Justices attend. These events strike me as very valuable because they expose more people to the Justices, and vice versa."

I find that general idea just as objectionable as the Federalist Society hosting such events, as in fact I related above (see my post on Ginsburg at the Four Seasons in Maui--but beware that it may contain images unsuitable for children). The bottomline is that in my view, neither the Federalist Society nor the American Constitution Society should be in the business of "exposing" their favorite judges to their membership, in return for which the judges get a free stay at a luxury resort.

Of course, that may not always be what is going on, but any possibility or appearance of such an arrangement could be prevented if judges had to pay their own way to such events. However, I'd be interested in seeing suggestions for a less restrictive, but equally effective, rule.
1.24.2006 3:58pm
Splunge (mail):
Of course, Chief Rehnquist, unlike Chief Roberts, could have cared less at the time.

He could have? How?

He could have been an atheist.

He could have been devout and already busy with the first of his 72 virgins.
1.24.2006 4:17pm
El Capitan (mail):
Medis,

Saw your post, and like Justin, I have to thank you in advance for ruining my dinner. Couldn't you have picked a sexy mama like O'Connor? ;-)

At any rate, in a perfectly sterile controlled environment, you're right, that's not lobbying, that's bribery. In the real world, as we're being reminded, the line is substantially blurrier. The ACLU/Sierra Club/NRA/Chamber of Commerce/AFL-CIO doesn't hand out cash through their PACs out of the goodness of their heart -- there's at the minimum an implicit quid pro quo that goes on there. I think -- and I say what follows only because I can't think of a more artful way to put this -- the statement that the term lobbying as commonly used "just involves trying to persuade the decisionmaker to reach a certain result" is pretty far from how most normal people and/or lawmakers use or understand the word.

At any rate, using your definition of "lobbying," I'm not at all clear that that is what's going on with the Federalist Society. From what I understand, Scalia went to this Federalist Society sponsored event, gave a speech, and had an opportunity to meet with people. This isn't even a one-time speech at some special interest gala -- this is a quasi-academic situation for which you can get CLE credit. I hadn't seen any suggestion that he commented on particular pending cases or unanswered questions of law, which would indeed raise the bar a bit. Like I said, I'm pretty well satisfied that no Judge ever thinks "wow, I attended "X" event, it was really cool, but I bet they want me to vote this way in "Y" case, so I'll change my vote," and I'm certainly certain that isn't the case here. I just don't see this as a directly analogous situation to the problems you encounter with legislators, who are up for election every couple of years, and who face the possibility of their monetary pipeline drying up if they don't vote a certain way.

I suppose if reaching a Platonic (and now I DO mean Platonic, not plutonic) ideal of fairness is the goal, I can see your point. But that would probably require that Justices lead a hermit-like existence, something that I think would have little marginal gain, and some real drawbacks. While I understand this isn't a partisan issue (I actually don't follow the comments here close enough to know your politics) I'll use a partisan example -- many conservatives believe that the so-called "Greenhouse Effect" has an actual, direct effect on some Justices' voting. It may be hogwash, but banning the circulation of the NY Times to remedy this perceived outside influence seems absurd. And I have an "interest" in the outcome of most litigation, yet I'd like to think that if I ever ran into Justice Scalia in an airport bar I could buy him a drink.

As for a brightline rule, I think its pretty close to what we have, and what seems to work pretty well, and which I just alluded to: Judges shouldn't comment upon or discuss pending cases or "hot topics" of law, period. I might even be willing to extend it further, and say they shouldn't receive any compensation -- in kind or otherwise -- from anyone who has -- regularly or currently -- any type of litigation pending before the Cour. Quite frankly, I think this is unnecessary given the first rule, but I can see the desire for it.

As for Goldstein, he might be biased and have an interest in the outcome, but I don't. And I agree with his thoughts.
1.24.2006 5:17pm
Challenge:
"I think Scalia's lavish lifestyle *should* raise some concerns, particularly given the Abrahmoff scandal."

hahahaha. Scalia's lavish lifestyle?
1.24.2006 6:08pm
Medis:
El Capitan,

I think it is important to keep the terms straight in part because the rules are different for legislators and judges. You have now also added campaign contributions to the list, and those are also not the same thing as bribery or lobbying respectively. Obviously the lines between lobbying, campaign contributions, and bribery do get blurred, which is a serious problem. But what I described as lobbying does in fact happen a lot, even without any contribution, bribery, or other financial quid pro quo occurring. Indeed, people representing various special interest groups regularly meet with legislators just to express their group's concerns, provide information, and make their arguments, all without any sort of consideration being exchanged.

People don't talk much about such lobbying because it is boring, legal, and perfectly ethical--at least for legislators such as the members of Congress. But such lobbying, for the reasons I mentioned, is in fact inappropriate for judges. And I think that is an important point--what would be ethical and legal for a legislator, even on the strictest standards, is not necessarily ethical and legal for a judge.

I do think we are talking a bit past each other because your analysis is mostly about what Scalia would be allowed to say at a lecture or other event. But I'm not concerned about that--there is no suggestion here that he made inappropriate comments.

Rather, I am concerned about what others were saying to Scalia, and more broadly about the possibility of a different sort of quid pro quo--judges getting a free vacation or other gifts, in return for which all they have to do is interact with some lobbyists (and maybe give a speech).

Again, one might think that this is harmless if the judge does not actually promise to do anything for those lobbyists, and indeed does not even promise to listen to what they have to say. But I don't think one can assume that lobbyists are so inartful as to completely waste such an opportunity, and in any event the difficulty of knowing what is going on in such pay-for-access encounters undermines the reputation of the judiciary.

So, that is what I would want: a clear rule that would allow us to know that lobbyists aren't paying judges for access. Of course, we can't rule out people simply talking to judges, nor should we rule out judges going to speaking events and the like. But it seems to me that a rule against anyone paying for a judge's travel expenses would effectively prevent any possibility that lobbyists were paying judges for access through such expenses.

And I don't see how that would make judges into hermits. They do in fact get decent salaries, and I know from experience that one can travel extensively on much more limited means. Also, as I noted above, we could set up some sort of publicly-funded travel stipend for judges that they could use to attend legal education events. And so on.

Again, the problems in question arise when money is flowing from lobbyists--and special interest groups in general--to judges. So, if we just prevent that flow of money from happening, regardless of the nominal purpose, then we can avoid the issue entirely.
1.24.2006 6:11pm
Jack John (mail):

SimonD: I didn't realize (per Jack John) that this was an annual event. I might have to pony up for the tickets next year; I'll pay a couple of hundred bucks to go be a Scalia groupie "in the flesh" as it were.


Exactly. That is why most lawyers attend: CLE credits that are relatively cheap, at a swank locale, and Justice Scalia is the one giving the lecture! Frankly, most CLE's are boring, dry, and suck. People are paying for a good time, not to lobby Scalia. That idea is just preposterous to anyone who actually receives this e-mail notification or brochure EVERY F---KING YEAR and considers attending, e.g., to ask him a question and hear what he has to say!
1.24.2006 6:50pm
Jack John (mail):
I would also note that the Federalist Society has a National Lawyers Convention that top law professors on the left and right, numerous solicitors general and state attorneys general attend, as well as federal judges and state supreme court judges and Senators and representatives from the House. But, get this, it's held in a big, swanky hotel! Oh no! I guess it means that none of those who attend are showing up for the scheduled lectures or debates on controversial topics by legal experts and public officials in-the-know, but are there to lobby the government! What a crock.
1.24.2006 6:54pm
Jack John (mail):

Of course, that may not always be what is going on, but any possibility or appearance of such an arrangement could be prevented if judges had to pay their own way to such events.



There is no reason they should, other than that scurrilous dogs like you are trying to character assassinate them with spurious ethics charges. You should be ashamed of yourself. I wish you would divulge your name, so I could report you to the bar.
1.24.2006 7:01pm
VC Reader:
1.24.2006 7:12pm
Erick:
For those interested, I looked through my old emails for the one I got on this. It advertised as a group rate of $175 per night. So this doesn't appear to be anywhere near the crazy extravagance some people are assuming.
1.24.2006 7:41pm
Charlie (Colorado) (mail):
A superficially appealing point is nonsense with even a LITTLE reflection.

Well, okay, "humorless gits" is now winning.

(Oh, and you might want to look up Gottlob Frege, Bertrand Russell, and the Spanish Barber.)
1.24.2006 7:43pm
Neal Lang (mail):
He could have been devout and already busy with the first of his 72 virgins.

Ergo, he could have cared less that Kennedy and Souter "dissed" him!
1.24.2006 7:52pm
Paco (mail) (www):
Medis,

I do agree that we are somewhat talking past each other, perhaps occasioned by the fact that we have very different view about what is going on at this event, or even particularly likely to go on. It has been a pleasure having a reasoned comments debate with someone (for a change), but it has probably reached the "agree to disagree" stage.
1.24.2006 7:53pm
David M. Nieporent (www):
To be honest, I'd be perfectly comfortable with Justice Ginsburg giving a speech before the ACLU, and having her costs of overnight stay reimbursed. I'd have little fear that the next time an ACLU case came before the Court that Justice Ginsburg would say "I was going to vote to strike down that abortion law, but that Omni the ACLU put me up in when I gave that speech was awfully nice." This is even one step farther removed, and is completely un-disturbing (if that's a word, which I'm pretty sure it isn't).
As Scalia noted, when he handed down his duck-hunting non-recusal decision, the notion that a Supreme Court Justice's vote can be bought with a social duck-hunting trip is far more disturbing than the trip itself.

"If it is reasonable to think that a Supreme Court Justice can be bought so cheap, the Nation is in deeper trouble than I had imagined."


Medis keeps trying to argue that people need to draw distinctions between "lobbying" and "bribery," but then he seems to blur the line between "socializing" and "lobbying." Moreover, if the problem is "lobbying" as Medis is using the term, then surely whether Scalia paid his own way or not is irrelevant, isn't it? They can "lobby" just as easily if he's there on his own dime, can't they?

(Unless the argument is that he's less likely to go if he has to pay his own way, and so there's less chance of him being "lobbied." But that's an argument that Supreme Court justices should be cloistered to avoid the dreaded so-called "appearance of impropriety," which is too silly to discuss.)
1.24.2006 7:54pm
Neal Lang (mail):
Why is it that the folks who find a "penumbra" in the Constitution that forms some weird "general right of privacy" in the Constitution that permits everything from a "woman's right to murder her unborn child" to the "terrorist's right to plot mayhem on society, secure from governmental surveillance", don't see that the truly important political "right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Isn't lobbying really "petition(ing) the Government for a redress of grievances", or did I miss something?
1.24.2006 8:02pm
Neal Lang (mail):
I suppose if reaching a Platonic (and now I DO mean Platonic, not plutonic) ideal of fairness is the goal, I can see your point. But that would probably require that Justices lead a hermit-like existence, something that I think would have little marginal gain, and some real drawbacks. While I understand this isn't a partisan issue (I actually don't follow the comments here close enough to know your politics) I'll use a partisan example -- many conservatives believe that the so-called "Greenhouse Effect" has an actual, direct effect on some Justices' voting. It may be hogwash, but banning the circulation of the NY Times to remedy this perceived outside influence seems absurd. And I have an "interest" in the outcome of most litigation, yet I'd like to think that if I ever ran into Justice Scalia in an airport bar I could buy him a drink.

By all means purchase Justice Scalia a drink or two, even. After all, the court has become the powerful element for moving forward ones "political agenda". So why must "the People" be banned from "petitioning" this powerful branch of government "for a redress of (their) grievances".

But whether this new "political-legal class" is Plutonic or Platonic Guardians, I don't believe has been completely as yet defined:
Indeed, by today's opinion, a majority of this Court does not merely disregard the law, it flaunts its disregard in the manner of a two-penny whore flaunting her wares, as it solicits with equanimity the role of a majority of this Court as Plutonic guardians in the place of the democratic will of the people as expressed in its ultimate embodiment, the Constitution. I cannot dissent from the Imperial Decree today as it is not even remotely judicial in nature. I had thought that we were judges exercising judicial power and that the apt description of our roles as such was that of Alexander Hamilton in Federalist # 78; however the Court has made it clear that they are "political actors" it follow that they have utterly re-written the sources of their power. Its juridic breadth and implications cannot be described in any manner other then that I have used before:
And I looked, and behold a pale horse: and his name that sat on him was Death, and Hell followed with him. And power was given unto them over the fourth part of the earth, to kill with sword, and with hunger, and with death, and with the beasts of the earth. Rev. 6:8 (King James).

Thus, in going into trial, the court had expressly construed the elements necessary for a conviction under Articles 3 &4 of the Articles of Impeachment. In today's opinion however, the Court completely reverses the required elements. I will grant this is difficult to discover as our new found Plutonic guardians lace their discussion of standards of review with legislative discussions.15

The fact that the Court does not address its self to its reversal is most distressing as evidentially it realizes the nature of its decision, and wishes to silently assert its will relying upon what it believes to be its inherent right as Plutonic guardians. As to these thoughts, "[f]or myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not." L. Hand, THE BILL OF RIGHTS, 73 (1958).

Notes:

15 I would note on this point that the Imperial Decrees political nature is apparent as to where they place their political suggestions, right in the midst of their holdings. This is clearly not a holding made on law as it read like a committee report. Indeed, the majority were informed of this by myself who suggested that if the elements were necessary they ought to at least be dropped into footnotes. Nothing has come of this suggestion. While it is true that past Courts have frequently made suggestions as to how to reform certain process, namely elections, they have either done so at the very end of their opinion where right before
they enter their mandate, or expressly in a addendum of obiter dictum of the most palpable source. While I generally think these measures are not within the ambit of a judges duties, I must note the Imperial Decree's vast departure from past practice on this point. S e e e.g. S i lverman v. Commissioners , at 3 (2003)(paragraph before mandate, expressly noted as dictum ) ; Mountain Club. v. Unio n , at 3 (2001)(Sciabarrasi, C.J., dissenting)(in paragraph before mandate); M a yman v. Elections Commissioner s , at 3 (2000)(in addendum); P e ck v. Commissioner s , at 1 (2000)(in paragraph leading up to mandate); A b bet v. Commissioners , at 2 (1999)(same); I s rael v. Commissioners , at 3 (1999)(in addendum); Ezring v. Commissioners , at 2 (1998)(in paragraph leading up to mandate). R u dnick v. Senate , at 2 (1999)(same); P h illips v. Commissioner s , at 1 (1997)(same); Phillips v. Berlin , at 1 (1997)(same).
From: BALSAM et. al. v. THE STUDENT UNION

Does the Court that now replaces the electorate really available to the highist bidder, like a "two-penny whore flaunting her wares" - as seems to be point of this thread, and therefore the Plutonic Guardians referenced. Or are they truely the Platonic Guardians of Plato's Republic.
There's an old and famous story about a community of people who live in a cave. Fires burn behind them, throwing shadows of various shapes onto the cave wall; and never having seen real objects in the sunlight, the cave people think these shadows are the only and most complete reality. One day, though, one of the cave dwellers happens to find a passageway to the outside world. He heroically struggles up the passageway and emerges into the world. At first the sunlight blinds his eyes, but after his vision adapts he sees, for the first time, a world far more real and rich than any he and his community ever imagined. Out of a sense of duty, the enlightened one then returns to the cave, hoping to guide his fellows to a similar illumination.

The storyteller suggests that if it were wise, the cave community would submit to the governance of this enlightened person, since he alone understands the higher truths and more complete realities. The political program associated with this story is often described as one of rule by "philosopher--kings," or Platonic guardians.

In a political community devoted to democracy, or government "of the people, by the people, and for the people," the rule of philosopher--kings is bound to offend. The objection is captured in one of Learned Hand's most famous statements: "For myself it would be most irksome to be ruled by a bevy of Platonic guardians, even if I knew how to choose them, which I assuredly do not." In this democratic climate of opinion it's not surprising that critics of a particular legal regime, such as the regime of modern constitutional law enforced by judicial review, will often accuse the regime of being in effect a sort of Platonic guardianship, and defenders of the regime will typically and emphatically deny the charge.

At first glance, the proposition that constitutional law is the dogma of an educated elite seems calculated to be provocative. But on reflection it may seem that the question is not really controversial after all. When I mention this proposition to people of different jurisprudential leanings, their reactions are usually similar: "So what's to argue about?" From: The Constitution in the Cave

In either event, is the partisan political contest, which the Senate Confirmation Process has now become, really the best way to select the all powerful "philosopher--kings", who we trust with complete autonomy to make our laws for us?
1.24.2006 9:09pm
BruceB (mail):
I think the concern being discussed is that only those who offer expensive resort vacations to justices get this ability to "petition for a redress of greivances", while the mass of citizens do not. Its "pay for access".



Why is it that the folks who find a "penumbra" in the Constitution that forms some weird "general right of privacy" in the Constitution that permits everything from a "woman's right to murder her unborn child" to the "terrorist's right to plot mayhem on society, secure from governmental surveillance", don't see that the truly important political "right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Isn't lobbying really "petition(ing) the Government for a redress of grievances", or did I miss something?
1.24.2006 9:20pm
Neal Lang (mail):
I think the concern being discussed is that only those who offer expensive resort vacations to justices get this ability to "petition for a redress of greivances", while the mass of citizens do not. Its "pay for access".

Your point being what:
1. Do away with the "right of assembly and petition clause" of the 1st Amendment because it is totally worthless.
2. Life is unfair, so rule by Plato's "philosopher--kings" is the only answer.
3. The politics of envy trumps the politics of greed.
4. Try Marxism because it hasn't really been tried hard enough before.

I say: Let those who are "losers in life's lottery" - "peaceably assemble and petition their government for a redress of the greivance that they don't have enough money to be heard", just like the Framers provided for. After all, if everyone got to speak with the Supreme Court Justices, then they wouldn't have time to continue to discover new "penumbra" in our Constitution, which just might be the best reason to insist on it.
1.24.2006 10:48pm
Medis:
David,

As an aside, when strangers are paying for the privilege of social interaction with a person, that isn't normal socializing. Of course, it happens all the time in all sorts of areas, but I don't see the value to encouraging such activities.

However, I agree that we can't prevent people from trying to lobby judges if they happen to encounter those judges in various fora. But what we can prevent is lobbyists paying for access to judges. Again, a simple, clear rule would be for judges to not take money in any form, for any purpose, from special interest groups.

And I actually haven't seen a compelling argument yet for why that would be a bad rule. Indeed, the more people try to minimize the value of any travel expenses judges might receive for attending these events, the less burdensome it should be for them to simply pay their own way. Conversely, the greater the supposed burden, the more it appears the judge is in fact receiving a gift of substantial value.

So why not just adopt a clear rule and be done with the issue?
1.25.2006 12:24am
Medis:
Bruce B,

And, of course, the general public doesn't have a right to petition federal judges in particular, rather than the federal government in general, for a redress of their grievances outside of cases properly brought within the jurisdictional limits of Article III. Again, that is why it is important to distinguish judges from other government officials--like members of Congress--when it comes to the ethics of lobbying.
1.25.2006 12:28am
Art:
Why should various groups not be able to try to educate the justices and other art.3 judges on the meaning of the constitution as they see it? Should you have to have a case in front of the court to try to educate a judge ont he clear meaning of the law? There are at least four clear views of what the constitution says, 1. What it says. This of course having little to do with any judicial ruling or congressional law, 2. The constitution says what Ginsberg says it does, 3. The constitution says what Thomas thinks it says and 4. The screwed up hodgepodge that the federal courts have made of it through stupid rules. Think McCain Feingold, any idiot 2nd grader can see that it is unconstitutional unser the first amendments clear wording. They may all need remedial reading and help with comprehension. Law as made by judges reminds me of the childhood game of telephone where the message changes as each new ruling is made to the point that white is black and black is white.

The judges and justices need to get out into the real world, or at least out of DC long enough to have these academic discussions with people they agree and dis-agree with. Let's give them more reasons to stay hidden away at home instead of being exposed to other thoughts on the meaning of the law.

Clearly, picking qualified and honest judges is the most important protection against corruption. The impeachment process is there for those who cannot resist corruption. Stop whining about the little stuff.
1.25.2006 1:38am
David M. Nieporent (www):
As an aside, when strangers are paying for the privilege of social interaction with a person, that isn't normal socializing. Of course, it happens all the time in all sorts of areas, but I don't see the value to encouraging such activities.
1) It's not "lobbying," either.
2) If you check out the Fed-Soc website linked to above, you'll see that this is hardly a $10,000 a plate banquet.
3) That still has nothing whatsoever to do with the complaint about Scalia's trip being paid for.
4) The "compelling argument" is that we want judges to go around giving speeches and teaching classes. And judges aren't likely to do so if they have to pay money for the privilege.
1.25.2006 1:58am
Medis:
David,

(1) Not necessarily, but it might provide such an opportunity. Anyway, the important point is that no one is proposing that judges cannot do ordinary socializing; the concern is with people paying to socialize with judges, and with judges receiving some sort of compensation for participating in such events.

(2) I'm not sure what point you are making here--obviously it wasn't a fundraising event, but no one has suggested it was. In any event, the benefit of a clear rule is that it would not require whatever fact-specific inquiry you have in mind.

(3) This particular issue arises out of the invitation to the event. The precise problem arises when members of a group are promised an opportunity to interact socially (and "intellectually") with the judge, and the judge in turn receives some sort of compensation for appearing at the event.

(4) I'm not sure your premise is correct--judges might still participate in these events without any sort of subsidy, particularly if it is true that the actual costs are very low (conversely, the higher the supposed financial burden on the judge, the more it sounds like a gift of substantial value). But in any event, insofar as we view judges participating in such activities as a public good, we could provide a publicly-funded travel stipend for judges. Indeed, we already do something similar with judges who must travel to other places for court sittings and such.

So, why isn't that a good solution? Cut off all flows of money, direct or indirect, between special interest groups and judges, but give judges a travel stipend to pay for their travel expenses to speaking events and seminars?
1.25.2006 8:45am
Neal Lang (mail):
And, of course, the general public doesn't have a right to petition federal judges in particular, rather than the federal government in general, for a redress of their grievances outside of cases properly brought within the jurisdictional limits of Article III. Again, that is why it is important to distinguish judges from other government officials--like members of Congress--when it comes to the ethics of lobbying.

Ah! So your position is that the Judiciary is somehow "petition proof"? My God! The only Branch of Government that "the People" can't "unelect" and now we can't even "petition" them to "redress our grievances" with it. Perhaps your position might be defensible had the Judiciary remain "apolitical". However, seeing how they have a "political position" and have push their "policy preferences" on "the People" - how else can "the People" express their ire at these "life tenured" - "philosopher--kings" for the impact they have on "the People" day to day lives?

The Judiciary is the one Branch of Government who has usurped the most "power" - the ability to admend the Constitution, by the vote of only 5 people, completely outside of the Constitution's Article V requirements.

What if "the People" don't like the Court's decision on abortion, for example - are you saying that they can't "peaceably assemble to petition the Supremes to "redress their grievance" on this issue? Exactly where do you find the wisdom that "the general public doesn't have a right to petition federal judges in particular"? It must be in some obscure Judicial diktat, because it certainly can't be found in "the People's" Constitution!

You "civil libertarians" have a truly warped concept of "civil liberties"!
1.25.2006 10:03am
Neal Lang (mail):
4) The "compelling argument" is that we want judges to go around giving speeches and teaching classes. And judges aren't likely to do so if they have to pay money for the privilege.

Only on "the planation" or in a Communist country can someone be compelled against their will by another to extend their efforts without receiving "just compensation". Of course, most Leftist Elitists have little problem with Marxism - either philosophically or practically.
1.25.2006 10:10am
Neal Lang (mail):
Clearly, picking qualified and honest judges is the most important protection against corruption. The impeachment process is there for those who cannot resist corruption. Stop whining about the little stuff.

Isn't that a bit "Quiotic" considering how the "picking" is done, and by whom. We have the President, who, if were are to believe DNC and MoveOn.org, is the most corrupt in history of mankind, and the Senate, an organization whose minority leader has posted a report apparently documenting that the vast majority of the members on the majority party are neck-deep in corruption.

Under such a system, especially one where the Judicial Branch reserves for itself "powers" to change the meaning of the "Supreme law of the land" on a mere whim, perhaps the only slavation left to "the People", is their "right to keep and bear arms", along with a little of the "blood" of a few "tyrants" to nourish "the tree of liberty".

Such a terrible solution most certainly is, if, as some here seem to believe, that "the People" don't even retain a "right to peaceably assemble to petition the very Branch of their government which appears to be the source of most of "the People's grievances".
1.25.2006 10:29am
Cold Warrior:
OK, everyone take a deep breath and for a moment think like an ordinary human being instead of thinking like a lawyer.

Liberal Scalia Haters: it's a junket! The Federalists are currying favor with him by inviting him to a lavish retreat. Why is giving him a free vacation that he couldn't afford on a Justice's salary any different than giving him a bribe?

Conservative NinoLovers: for Chrissakes, he's giving a lecture to a bunch of lawyers with a self-professed jones for law and public policy issues. What, the Federalists have to have their conclave in Buffalo in order for it to be o.k.? Beaver Creek is just "too nice?" Do we need a federally-approved list of "S*&$holes Where Conferences Can Be Held Without Raising the Appearance of Impropriety?"

Hard to imagine how such a debate fails to advance the discourse.

Occasionally I like to talk to real people who aren't all lawyered up. If those people know of the Ritz Carlton Bachelor Gulch (and where I'm from, they do), they don't really have a problem answering the question: it does give the appearance of impropriety, because it is, quite simply, too lavish. The Vail Cascade Resort just over the ridge? Very nice, but not really lavish. Most people wouldn't have a problem with that. In the past I know he's gone to similar events in Durango, Colorado. And, again, nobody really has a problem with that. Would it have been o.k. for Dennis Kozlowski to have spent $500 bucks of Tyco money on a really, really nice shower curtain for the executive washroom? Well, o.k., Denny, I guess you've earned the right to have nice stuff. Is it o.k. to spend $10,000 of Tyco money for the Greatest Shower Curtain Ever Known to Mankind? No, it isn't. And most ordinary people will know the difference. That's not to say one should be legitimate and the other per se illegal. It's just to say that there's a line somewhere and most of us know when we're crossing it.

So can we have a Federal List of Approved Junket Facilities for Judges? Of course not. This is where the individual judge's sense of what is right (nice accomodations in exchange for my time) and what is just too much (the Ritz Carlton/Bachelor Gulch) comes into play.

Maybe Nino didn't really investigate the nature of the retreat and therefore didn't worry about being schmoozed at this kind of joint. Well, o.k. Let's not impeach him or accuse him of corruption. But is it fair to criticize him for accepting the invitation to be schmoozed in an ultra-glitzy manner? Of course it is.

And he should know better.
1.25.2006 11:10am
Mylar Thomson (mail):

the concern is with people paying to socialize with judges



As has been made clear, no one is paying to socialize. Attendees pay for CLE credits, for room and board at a cheap group rate, and to hear a lecture by a legal expert. The socializing afterward is free. All socializing is not lobbying, and there is no proof that any of the attendees were lobbyists.

Stephen Gillers may write a decent textbook on Professional Responsibility, but with his forays into politics he has proven himself a partisan hack.
1.25.2006 11:10am
Mylar Thomson (mail):
Oh, and what Cold Warrior has made clear is that what concerns people is not Scalia's behavior, but that the Federalist Society is renting out a "lavish" hotel. In other words, the goal is to link the Federalist Society with a stereotype of affluence. Nevermind, as was noted before, that a large hotel was chosen because of the large number of attendees and the fact that smaller hotels do not have large conference rooms that can serve as lecture halls. Also nevermind that there is no reason why the Federalist Society shouldn't be able to rent out whatever hotel it wants.
1.25.2006 11:14am
Cold Warrior:
Mylar Thomson said:


Oh, and what Cold Warrior has made clear is that what concerns people is not Scalia's behavior, but that the Federalist Society is renting out a "lavish" hotel. In other words, the goal is to link the Federalist Society with a stereotype of affluence.


Which simply proves my point: when some people get sworn in as attorneys, they check their common sense at the courtroom door.

Maybe we need to take a step back here. Mylar, is there some point at which you'd find the accommodations to be just a bit too much? Or do you know no limits?

Remember, I'm not talking about what's legal/illegal/impeachable here. I'm talking about one's own moral compass. And it sounds to me like your compass ain't working anymore.
1.25.2006 11:25am
A Garvin:
No one has pointed out that the Federalist Society is a non-profit, tax-exempt think tank. It is not a lobbying organization. To maintain its non-profit tax-exempt status, it is forbidden from engaging in lobbying. Scalia was also a founding member and has been actively involved with the society for nearly a quarter century. There's no need to try to influence him.
1.25.2006 12:46pm
Neal Lang (mail):
But is it fair to criticize him for accepting the invitation to be schmoozed in an ultra-glitzy manner? Of course it is.

Hmmm! Group "schmoozing", is that anything like:
the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

However, I understand that "mass fly fishing" may have also be taking place at the same venue and the same time - so it could be argued that lawyer group involved was not acting entirely "peaceably", as "fish have feelings, too!"
1.25.2006 1:42pm
Neal Lang (mail):
No one has pointed out that the Federalist Society is a non-profit, tax-exempt think tank. It is not a lobbying organization. To maintain its non-profit tax-exempt status, it is forbidden from engaging in lobbying. Scalia was also a founding member and has been actively involved with the society for nearly a quarter century. There's no need to try to influence him.

But can a non-profit's members "schmooze" without jepardizing its "tax-exempt status"?
1.25.2006 1:46pm
Jutblogger (www):
The funniest part of this debate is that people act like it's shocking for this to have been unearthed, when in reality, SC Justices probably do the least amount of this than any other judge. How many rubber chickens have you been to and seen a federal judge? waaaaay fewer than when you've seen a state judge, but all of the sudden, some people think there should be a law against this. I love it, it's really the gift that keeps on giving. He posts a joke, a mockery, and you say, fine, it's not really a scandal, but IT SHOULD BE!!!!!11!!@!!!!


And remember, if this was cute and cuddly Ginsburg, this whole discussion wouldn't even be taking place.
"Lavish lifestyle" is probably the funniest thing I've read in ages by someone purporting to be serious, and pretty much everything Medis has posted here has been laughable. Sorry, it's just true.

It's really hysterical.

I keep checking to see if it's April 1.
1.25.2006 1:51pm
Cala:
Oh, this is almost a non-issue. Scalia went on a trip to a nice place where in lieu of an honorarium for speaking, he received a stay in a lavish hotel room and had a relaxing time. Execs and profs do this all the time, and while it's telling that lawyers have expensive tastes, this is hardly earth-shattering.

Having the government pay for it won't help, I'm afraid. It would defray the cost, certainly, but then we'd wonder why Joe &Sally Taxpayer who are barely scraping by and think Denny's counts as a good night out are paying for judges to go skiing. With good reason.

Better to have some distinct guidelines. Many corporations do; doctors do. (It may be fine to go to a fancy lunch hosted by Pfizer, but not fine to have Pfizer pay a large amount of the doctor's annual income.) I don't think Scalia's case counts as anywhere near ethically borderline, but it surprises me that there isn't a rough guideline already codified.
1.25.2006 2:03pm
Jutblogger (www):
I have one question for the scandal-ites.

How is this situation different than a federal judge being a full-time law school professor. and, to further the hypo, how is it different than a federal judge, full time law professor (i.e., guido calabresi of the 2d cir. and yale), being comped by the law school to attend a law prof conference or teaching convention, or a cle, in another state (with a hotel, travel, etc.).

I see no difference.

you get what you pay for. you don't pay the judge to speak, so to say, but you pay his way instead. "Judge, could you come speak at this function?" "sure" "okay, now just get your own tickets and hotel, oh, and by the way, it's 150 bucks to attend and for dinner." "oh wait, i forgot, i have a thing that weekend, sorry."
1.25.2006 2:07pm
Jutblogger (www):
And regarding any codification, there is a rule that requires the judges to report gifts of over 25 dollars to the senate. he can accept the invitation and comp and has to tell the senate about it. people here seem to ignore that or just don't want to know, they want to be able to IMPEACH IMPEACH.

whatever, good stuff, you guys really are the best today.
1.25.2006 2:12pm
Mylar Thomson (mail):

Remember, I'm not talking about what's legal/illegal/impeachable here. I'm talking about one's own moral compass. And it sounds to me like your compass ain't working anymore.



Please explain what is immoral about the Federalist Society acquiring group room-and-board rates and renting out a conference room in a large hotel for a large CLE class consisting mostly of out-of-state lawyers.
1.25.2006 2:29pm
David M. Nieporent (www):
Medis, to address your points one at a time.

1. You keep trying to link together two unrelated points, without any logical connection. If you're worried about an "opportunity" to lobby, then you are proposing that judges cannot do ordinary socializing. Whether the judge receives compensation has nothing to do with whether other people have the opportunity to -- or actually do -- lobby him.

2. My point wasn't that it wasn't a fundraising event -- although that is certainly an important point to note -- but that it wasn't some sort of exclusive event.

3. The "invitation" to the event is advertising puffery. It is a complete red herring, unrelated to the issue. If the invitation said, "Come hear Scalia teach a class," it would not have changed anything about the event.

4. I'm sure my premise is correct. Judges are extremely unlikely to pay for the privilege of teaching a class to lawyers.

If you're worried about the "opportunity" for people to lobby a judge at such an event, then it makes even less sense to "publicly-funded" such opportunities. If it's inappropriate for people to pay to socialize with a judge, then surely taxpayers shouldn't pay extra for such behavior.

So, why isn't that a good solution?
Because it doesn't address your complaint. Either you're worried about so-called "lobbying" or you're not. There will be no more or less lobbying if the taxpayers pick up the tab.

And, contrary to your characterization, (1) reimbursement for expenses on a business trip is not a "gift," and (2) the Federalist Society is not a "special interest group" or a group of "lobbyists."

Finally (not directly addressed to Medis), any talk about "appearance of impropriety" is dishonest. Unfortunately, our current media scandal culture has redefined that phrase downward to mean "anything someone might complain about." But there can't be an appearance of impropriety unless there's an actual belief that there might be impropriety. Does any person on this planet think that Scalia will change his vote based on this (or based on the duck-hunting)? Some people think Scalia is a mean heartless right wing reactionary. Some people think Scalia uses neutral-sounding principles as a cover for advancing his ideological agenda. But nobody thinks he might switch his vote on a case based on these "scandals."
1.25.2006 4:11pm
Russ Davis (mail):
I can't believe any of you are taking this ABC (Ass-inine [i.e. Dem waterboys] Bull Crap) nonsense about dear Nino (Scalia) seriously! That anyone would do anything but yawn or grimace at the endless absolutely shameless lies and stupid nonsense that the media pervert sycophants put out about the brilliant and incomparable Nino (Scalia) is incredible! It is beyond even doubt, much less rational refutation (something only the tiniest minority of media or Dems can ever manage anyway), that he will go down in history as one of the Courts greatest and truest justices ever, likely high in the top ten or so of the total 110 (www.supremecourtus.gov/about/members.pdf). The fact that he gets Justice Ginsburg to laugh shows up the stuff and nonsense about him being a far right-wing idealogue. Such meaningless hypocritical labels are only the tactics of those who either can't think or are bumbs too lazy to try. Though I don't always agree with him, Nino has not just impeccable but stellar integrity, a jewel in very short supply among those constituting our present lawless tyrannical oligarchy that cleverly overthrew our republic without a shot being fired.
1.25.2006 11:22pm
Jonathan Huddleston (mail):
Teaching is work.

The setting doesn't matter--no matter how often one repeats the words "luxury resort," a one-day event involving ten hours of lecturing is not a vacation. It is work, and in a perfect world it would be renumerated with some sort of salary. (No matter how well-paid a justice is, if you want him to mow your lawn you should pay him.) As a teacher I'm insulted by the notion that there is any "gift" to Scalia involved; the gift is all on Scalia's side, since the time he donated in teaching and preparing is is worth far more than the total value of what he receives.

Teaching also involves access to the professor--otherwise students would just rent the video. This is, I suppose, a possible occasion for lobbying--but no more than any other social event, and no more than at a law school. The distinction between Scalia's seminar and any other teaching engagement is, in the end, hot air. Most law schools will give a free meal and a hotel room in exchange for a 1-hour lecture/presentation; a 10-hour class should, by any resonable rate of exchange, deserve any benefits that the institution can cough up.
1.26.2006 3:15pm