By Judith E. Schaeffer, Vice President, Constitutional Accountability Center

Over at The Volokh Conspiracy, Jonathan Adler takes issue with Constitutional Accountability Center’s recent request that the three federal judges who sit on the Board of Directors of the Foundation for Research on Economics and the Environment (FREE) resign from that Board.  Perhaps this should come as no surprise, since Prof. Adler sits on FREE’s Board too.  But what is surprising is that Prof. Adler completely mischaracterizes the facts.

While Prof. Adler has tried to turn this into some sort of confusing “we said, they said” situation, the reality is that the facts are simple, objective, and knowable.

What CAC “said” is that the three judges should resign immediately from FREE’s Board not because of some whim on our part but because the Codes of Conduct Committee of the federal judiciary — the definitive voice of judicial ethics for federal judges — has concluded that service by a federal judge on FREE’s Board violates two Canons of the Code of Conduct for United States Judges.  Not that such service “could be improper” – Adler’s words – but that it is improper.   Not “could,” not “maybe,” not a “suggestion” of impropriety (another Adler word), but a very clear and express conclusion of actual impropriety.  In the words of the Committee, service by a judge on FREE’s Board “violates Canon 5B” and “runs afoul of Canon 2A of the Code.”   The Committee’s opinion is right here in black and white for all to read.

And that’s what this matter is – black and white.  The Committee has spoken.

Nonetheless, Prof. Adler and FREE have tried to create some ethical shades of grey, hiding behind an opinion by Eighth Circuit Judge James Loken that refused to discipline Judge Danny Boggs for sitting on FREE’s Board in response to an ethics petition filed by CAC’s predecessor organization, Community Rights Counsel.  There are two problems with this.  First, no single judge can trump the decision of the Committee on Codes of Conduct.  This is not simply a matter of arithmetic (fifteen members of the Committee versus a single judge), it is a matter of jurisdiction.  The Committee is the judiciary’s preeminent voice on the meaning of the Code of Conduct.  Nothing Judge Loken has said in any way undercuts the Committee’s decision on the meaning of the Code.

Second, while Judge Loken’s opinion came two months after the Committee’s opinion, Judge Loken never addressed it.   It can only be assumed, therefore, that Judge Loken had not seen, and did not consider, the Committee’s opinion (which was not released publicly until two weeks ago).  To the contrary, Judge Loken relied heavily upon prior opinions by the Committee on this issue that were superseded by the opinion released this month.  Thus, the very foundation for Judge Loken’s opinion relied upon by Prof. Adler and FREE and, apparently, by the three federal judges who currently sit on FREE’s Board, were opinions by the Committee on Codes of Conduct that were withdrawn and replaced by a new opinion by the Committee that says, unequivocally, that judges cannot sit on FREE’s Board.  Here’s what the Committee said, addressing the prior Committee opinions relied upon by Judge Loken:
We understand that the advice we give you today would not be obvious from reviewing the Canons and our previous advisory opinions.  In the past, the Committee often has assumed that the inquiring judge is in the best position to evaluate the activities on a board on which he or she serves and has deferred to the inquiring judge’s determination about the propriety of service.  However, in light of the wealth of information about FREE that is now available to us and to the public, we believe that we are in a position to provide you with advice, as you requested.  Thus, while we never before have advised judges about this issue and acknowledge that you reasonably could have arrived at a different conclusion after diligently reviewing the most relevant Code of Conduct materials available to you, we advise you now that your continued service on the FREE Board in the future is inconsistent with Canons 2 and 5 of the Code of Conduct.
The Committee could not have been clearer in its guidance in the matter of service on FREE’s Board.   Although Prof. Adler plainly does not agree with the Committee’s conclusions, his opinion is irrelevant in determining the propriety of service by federal judges on FREE’s Board.

The Committee has spoken.  Will the three judges who still sit on FREE’s Board listen?