Federal Courts and Nominations

Federal judges urged to quit private group’s board


WASHINGTON — Three prominent federal appellate judges are on the board of an anti-regulation group that provides free seminars and trips to judges, although an ethics opinion says such service violates judicial rules designed to avoid favoritism.

One of the judges is Edith Brown Clement of the 5th U.S. Circuit Court of Appeals in New Orleans, who was on President George W. Bush’s short list for a Supreme Court nomination in 2005. The others are the current and prior chief judges for the Cincinnati-based 6th U.S. Circuit Court of Appeals, Alice Batchelder and Danny Boggs.

The three judges are board members of the Montana-based Foundation for Research on Economics and the Environment, or FREE. The group advocates voluntary action to protect the environment instead of government regulation. It receives most of its money from foundations and corporations but says it uses no corporate money for seminars it runs for federal judges, law professors and others, usually at Western resorts.

The ethics opinion, written by a federal judge, says “impartiality reasonably could be questioned in environmental cases” if a judge serves on FREE’s board.

The Constitutional Accountability Center, a liberal interest group in Washington, sent copies of the opinion to the three judges Thursday and called on them to resign as FREE board members.

None of the judges returned telephone and e-mail messages left by The Associated Press on Thursday.

FREE Chairman John Baden said he is sure the judges are aware of the ethics opinion. “Of course they knew about it,” Baden said in a telephone interview.

Another federal judge, Andre Davis, who now sits on the 4th U.S. Circuit Court of Appeals in Richmond, Va., quit the board in 2005 after he sought and received an opinion from the federal judiciary’s Committee on Codes of Conduct. Two other judges resigned at the same time.

The opinion was widely circulated to the general public for the first time this week, although the AP first reported on it in 2008 before the full text was public.

The six-page opinion from U.S. District Judge Gordon Quist of Grand Rapids, Mich., then the code of conduct committee chairman, advised Davis that “because you are serving on the board of FREE, there is no practical way to disassociate yourself from the policies advanced by FREE.”

Quist said Davis’ impartiality may be questioned “because FREE espouses particular points of view on contentious public issues frequently before the courts, and you as a board member would reasonably be perceived as personally supporting these positions.”

He said another problem stemmed from lending “the prestige of your office to advance the interests of FREE” because the group’s website prominently displays the name, title and photograph of board members.

Davis resigned quickly after receiving the private, advisory opinion by letter. He acknowledged its existence in an unrelated court matter and discussed it more fully during his Senate confirmation hearing after President Barack Obama nominated him to the appeals court in 2009.

Boggs previously faced an ethics complaint over his membership on the FREE board from a liberal-leaning advocacy group, the Community Rights Counsel. Doug Kendall, who headed the CRC, is now president of the group that called for the resignations Thursday.

Judge James Loken of the 8th U.S. Circuit Court of Appeals in St. Louis dismissed the complaint against Boggs in May 2005, finding nothing to substantiate charges that the judge’s service on FREE’s board created an appearance of impropriety.

Although Loken’s ruling was issued more than a month after Quist sent his letter to Davis, Loken made no reference to the judicial conduct panel’s opinion. Loken did cite earlier advisory opinions but it is unknown whether he was aware of the Quist opinion at that time.

Loken did not return messages Thursday.

Baden, the FREE chairman, pointed to Loken’s order dismissing the complaint against Boggs to defend the judges’ continued presence on FREE’s board.

To read this article online, click here.

This story was subsequently reprinted in numerous other outlets.

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