Federal Courts and Nominations

For judges, inconsistent use of ethics rules is evident


The nation’s top federal judicial ethics panel told a judge in Maryland five years ago that his membership on the board of an anti-regulatory group violated two canons of ethics, provoking his immediate resignation from the board. But the authority’s opinion was not published until this month and three other federal judges – including one of the nation’s 13 circuit court chief justices – presently sit on the same group’s board.

The episode, which involves judges’ ties to a controversial Montana-based group that also sponsors judicial education seminars, has cast a spotlight on what critics say is the private and sometimes inconsistent application of ethics rules for the federal judiciary, which they say could open the door to abuses.

Ethics guidelines for the more than 3,000 federal judges are regularly issued and updated by the ethics panel, which includes 15 federal judges. But its advice is mostly given in secret communications to individual judges, and there is no systematic way for others to know what has been decided.

Moreover, the decisions of the committee are advisory and may be ignored, unlike those issued by most state judicial ethics committees. Enforcement actions are rare, except in unusual cases of corruption and criminality that can lead to impeachment. District Judge G. Thomas Porteous of Louisiana, ousted by the Senate on Dec. 8 for taking bribes and lying to Congress, was only the eighth federal judge impeached this century.

Since the recent disclosure of the 2005 opinion, which involved the board of the Foundation for Research on Economics and the Environment, one of the three judges who serve on the group’s board has said he feels no obligation to resign. The two other judges on the board have not responded to criticism or questions about their membership.

“The committee ought to be mindful of the need to disseminate as much information as possible about the ethical responsibilities of judges . . . to ensure a more uniform understanding,” said Indiana University Associate Law Dean Charles G. Geyh, a former House Judiciary Committee counsel and co-author of a text on judicial ethics.

But, he added, “I’m more troubled by the possibility that a judge might feel free to disregard committee guidance – a problem I attribute to the ongoing disconnection between the [panel’s] Code of Conduct and judicial discipline.”

Rules violation

In the 2005 case, the ethics panel – formally known as the Committee on Codes of Conduct of the Judicial Conference of the United States – bluntly advised Andre M. Davis, then a federal district court judge in Maryland, that his membership on the group’s board violated rules barring an appearance of impartiality and abuse of the prestige of a judge’s office.

District Court Judge Gordon J. Quist of Michigan, who then chaired the panel, said in a private letter that the foundation – which has called itself “a bunch of libertarian economists” – advocated “particular approaches to environmental policy” and other issues. As a result, “the Committee concludes that your leadership affiliation with FREE would be seen as personal support for the policy positions of FREE.”

The decision came after a group known then as Community Rights Counsel, a nonprofit law firm engaged in environmental advocacy, filed ethics complaints about the memberships of four judges on the foundation’s board: Davis; Danny Boggs of the 6th Circuit Court of Appeals; Douglas Ginsburg of the D.C. Circuit; and Jane Roth of the 3rd Circuit.

Roth and Ginsburg, like Davis, dropped off the board in 2005.

6th Circuit review

Boggs had independently taken another route in response to the ethics complaint and sought a review from a chief circuit judge, and the case was given to James B. Loken on the 6th Circuit in Minneapolis.

Loken ruled that Boggs’s membership on the board did not create an appearance of impartiality. He called the foundation “a bona fide educational institution that conducts no litigation and takes no official positions on legal or public policy issues.”

Loken’s published decision came seven weeks after the ethics panel had reached a contrary, private conclusion, but it is unclear whether Loken was aware of it. He did not return several phone calls.

The current chair of the Codes of Conduct committee, Judge Mary Margaret McKeown of the 9th Circuit in San Diego, said in response to questions that the panel “does not reveal any information related to an ethics inquiry or opinion unless required by law or where the inquirer has consented or waived confidentiality.”

She also cautioned that opinions sent to one judge “may or may not be relevant to another judge who appears to face similar issues.”

Davis did not return phone calls, but he said at a 2009 Senate Judiciary Committee hearing for his nomination to the Circuit Court that he did not share the opinion with any of FREE’s other board members. Asked about that decision by Sen. Russell Feingold (D-Wis.), who has criticized the foundation’s sponsorship of educational seminars, Davis said he did not think it was peculiar to him or based “on the identity of the judge” serving on the board.

Davis provided a copy of the opinion to the lawmakers, who disclosed it early this month when the hearing’s transcript was printed.

John A. Baden, the foundation’s chairman, said in a telephone interview that although he does not recall seeing the opinion, he recalls discussing it with Davis. “I cannot imagine” the other judges on the board would be unaware of it, said Baden, who dismissed the criticism of his group as unfair.

Harvard and the Bar

Two of those now on the group’s board, 6th Circuit Chief Judge Alice Batchelder and 5th Circuit Judge Edith Brown Clement, did not return phone calls seeking comment. Boggs said that if people are worried about judges who sit on boards, they might look at several who sit on the board of Harvard University, “which litigates in its own name and certainly does controversial things.” Another, he said, sits on the board of the American Bar Association, which takes formal policy positions.

“Whatever went on between the committee and Judge Davis . . . I would say, was an inferior status to the formal proceeding” in which Loken concluded there was no misconduct, Boggs said.

Geyh disputed that point, saying that the judicial ethics committee “will ordinarily be seen as the federal judiciary’s final word. . . . [It] ought to be the 800-pound gorilla.”

Douglas Kendall, who heads the Constitutional Accountability Center, a nonprofit law firm, and brought the initial complaints against judges linked to the foundation, said the episode raises serious questions about a judicial ethics process that is “completely self-policing and unenforceable.” Why have a code of conduct, he said, “if judges can violate it with impunity?”


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