Federal Courts and Nominations

Judge Clement makes friends with Big Oil

By James Gill


Bafflement was the general response when federal Judge Edith Clement, of the appeals court in New Orleans, went out of her way to do BP a favor in the Deepwater Horizon litigation.


Perhaps Clement was just trying to be helpful in October when she ruled for BP on a question that was not even before the three-judge panel she sat on. But the cynics will offer a different theory. They may be relied upon to mention that Clement has for years been a board member at one of Big Oil’s most active front organizations.


The Foundation for Research into Economics and the Environment is naturally keen to recruit federal judges, since its members are frequently engaged in high-stakes litigation. It is hard to imagine that any judge would be too dim to see the blatant conflict of interest in accepting a seat on its board, but Clement got an assist in that regard from the Constitutional Accountability Center in Washington.


The center’s president, Douglas Kendall, wrote to Clement pointing out that the Judicial Conference of the United States had ruled that joining FREE’s board was against its code of conduct. That ruling was requested by Judge Andre Davis, of Maryland, who promptly resigned from FREE in 2005. Clement joined the board somewhat later.


The ruling on Davis was made public in 2010 when he was elevated to the appeals court. Kendall immediately asked Clement to resign her seat on the FREE board, but she failed to respond. Those lavish Montana junkets on FREE’s dollar must be hard to give up at that.


They certainly make a nice break from all that complex litigation arising from the oil rig explosion and spill, for instance. But when it fell to her panel to consider the proper way to cipher compensation claims, Clement up and issued a supererogatory ruling. She waded right into the controversy over whether businesses seeking compensation from BP should be required to prove their losses were spill-related.


That question was pending before a different appeals court panel after trial Judge Carl Barbier held that, according to a settlement BP had signed in a class-action lawsuit, business losses at the time of the spill were presumed to have been caused by it. When claims came in higher than expected, BP tried to wriggle out of the deal.


Clement told Barbier to reconsider, although one of her fellow panelists, Leslie Southwick, took no position on the issue and the other, James Dennis, dissented, pointing out that convention requires a court order to be approved by a majority.


When Barbier took up the case, he also noted that the order was apparently null, and that he had no authority to intervene anyway since the question was pending before the other appeals court panel. He nevertheless reaffirmed his opinion that BP was stuck with a settlement it had helped confect.


The other appeals court panel has since reached the same conclusion, so Clement appears to have merely created a diversion, a course of action that seems a little less eccentric in view of her refusal to quit the FREE board.


That her FREE role is highly unethical is plain from the Judicial Conference ruling that led Davis to resign. He was found in violation of the code of conduct because his board membership reflected “adversely on a judge’s impartiality” and allowed “FREE to exploit the prestige of the office.”


“Your picture is displayed prominently on the website, as is your title,” the conference code of conduct committee chided Davis. Take a look at the FREE website today, and there you will see Clement’s smiling face.


You’d smile too if you got free trips to Big Sky, where sumptuous accommodations are laid on for board members attending libertarian seminars. The cost, the Georgetown Journal of Legal Ethics calculated in 2004, exceeds $10,000 a head — small potatoes when you consider, as the Judicial Conference pointed out to Davis, that “FREE espouses particular points of view on controversial public issues frequently before the courts.” FREE numbers Exxon, Shell and Texaco among its members.


Public issues don’t get much more controversial than Deepwater Horizon, which will likely be before the courts for years yet. Why Clement should think it acceptable to remain in open cahoots with FREE is a bafflement indeed. She did not return a call for comment.

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