FREE lunch

The ethical transgressions of federal judges go way beyond duck-hunting.

Thu Mar. 25, 2004 3:00 AM EST

Dick Cheney's duck-hunting jaunt with his old buddy Antonin Scalia rightly prompted questions about the ethics of Scalia's presiding over a case in which Cheney is a defendant. Cheney is seeking to overturn a lower-court ruling that ordered the vice-president to disclose records of his energy policy task force's dealings with the energy industry.

But the the Scalia-Cheney affair, as high-profile as it is -- and as irresistible as the duck angle has proved to headline writers -- is only one of a number of recent conflict of interest episodes involving federal judges.

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According to the watchdog group Community Rights Council, 5 percent of all federal judges have gone on $10,000 “junkets” laid on by the Foundation for Research on Economics and the Environment (FREE). The non-profit group is funded by corporate donors and gives seminars on topics like, "The Environment: A C.E.O.'s Perspective" in the great Rocky Mountains where the judges wine, dine, horseback ride, and mingle with lawyers and businessmen. Three federal judges even serve on FREE's Board of Directors.

This week, the CRC filed ethics petitions with the Judicial Council demanding that the three judges relinquish their FREE posts. As CRC's Executive Director Doug Kendall says:

"There is pretty unmistakable evidence that the organization that hosts environmental junkets for judges where they talk about how and why federal judges should strike down environmental regulations appears to be manipulating their board structure and (conference) schedule to influence the outcome of important environmental cases."

Consider Chief Judge Douglas H. Ginsburg of the Circuit Court of Appeals for the District of Columbia, a member of the FREE's Board of Directors. Ginsburg served on the board with Edward W. Warren, a lawyer for the plaintiff in a case on trial in Ginsburg's courtroom: American Trucking Associations Inc., vs. Environmental Protection Agency. The case challenged EPA's clean air protections. The two judges presiding over the case along with Ginsburg were beneficiaries of FREE's junkets. The ruling went 2:1 in the American Trucking Association's favor, but was later overturned by the Supreme Court.

FREE argues that Warren resigned from the board once he "realized" that Ginsburg was on FREE's board of directors. The group claims that this was done to dispel any suspicions of wrongdoing and that no conflict of interest took place. As FREE's Chairman John A. Baden puts it:

"I don't see anything unusual with them both being on our board. To characterize them as somehow creatures or captives of some special interests is insulting."

Baden's statement is somewhat disingenuous; as the CRC's investigation discovered, FREE conveniently omitted to mention Warren's membership on its board of directors when it filed taxes.

Judge Jane R. Roth of the United States Court of Appeals in Philadelphia, one of the three judges that CRC wants to step down from FREE's Board of Directors, says that:

"My participation on the board has convinced me that this is not a partisan organization but a foundation very interested in presenting pertinent information."

The FREE web-site explains:

"While our seminars are explicitly pro-environment, they explain why ecological values are not the only important ones. We stress that trade-offs among competing values are inescapable. We show why it is ethically and materially irresponsible to pretend such choices can be avoided."

FREE's corporate funders like ExxonMobil, GE Fund, Maguire Oil Company, and Pfizer International may be some of the reasons why the group's proclaimed environmental values have a corporate slant. FREE points out that the judges junkets are covered with funds from "dead man" foundations, not its corporate funders. This separation does nothing to sway critics, who argue that this doesn't change the group's anti-environmental agenda and seminars which, as CRC's Kendall says, "take conservative judges and give them a road map on how to advance their philosophical leanings."

We are in the midst of what promises to be the most expensive presidential race in the nation's history. Americans have come to expect the worst when it comes to the influence of"special interests" in politics. We are not surprised to hear of the astronomical corporate donations to political campaigns or of the luxurious trips that our elected representatives enjoy. Yet we rely on the judiciary to curb the influence of big money in politics, not, say, to mingle with representatives of big business during luxury seminars about how best to effect the evisceration of the nation's environmental laws.

Corporate-funded junkets are nothing new; nor are they illegal. CRC has created tripsforjudges.org, which includes a searchable database that documents where corporate sponsors whisked off your local judges over the years. The judges who joined FREE's Board of Directors also broke no laws, but their behavior was less than ethical, as is the more widespread acceptance of FREE's junkets. Such incidents are a sad commentary on the nation's judiciary and erode public trust, which wasn't that strong to begin with.