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More on Supreme Court Ethics:
Over at Crime and Federalism, Michael Cernovich fisks the ABC News Supreme Court ethics scandal. I disagree with Mike's first sentence, and one or two other particulars, but that Scalia story was certainly mega-lame.
Medis:
I don't see any analysis of the alleged invitation, nor of who paid Scalia's bill.
1.24.2006 4:59pm
Houston Lawyer:
"Arguing that the cocktail reception was part of widespread corruption is like saying that every reporter for ABC News is as stupid as the author of this story."

Don't hold back, tell us what you really think.
1.24.2006 5:20pm
Mr. Java (mail):
Orin,

I think you should justify your comment that the article is mega-lame. It is accurate and INTERESTING to some people who do not realize that Supreme Court Justices enjoy the perks provided by private parties.

You might have different policy conclusions that I do. I think that reform should occur such that Supreme Court justices receive NOTHING of value from anyone other than the Federal Government (or gifts from immediate family members). However, I do not think that you can say that an accurate article is lame. I think you are being lame (in just this little instance, not generally) for suggesting that the article should not be written.

Not EVERYONE is aware that Supreme Court justices receive these perks, although it may be second nature to you. So this article served a useful educational purpose. Sometimes the scrutiny of outsiders is more valuable than the perspectives of insiders who take certain things for granted.

Clearly, what Justice Scalia did was not illegal and it most likely was not immoral. (It could have been immoral for all we know; but it probably wasn't. The reason to not allow these sorts of excursions is to avoid the temptations and increased probability of corruption that these cause.) I don't think he should be picked on. However, the system needs to be changed.

This article is VERY timely for another reason. While the Supreme Court (hopefully) has no connection to the Abramoff scandal, that scandal has opened a window of political opportunity where needed reforms have an especially high probability of enactment. That makes this article VERY timely rather than lame.
1.24.2006 5:33pm
Medis:
Java,

Unfortunately, I would also say that the article was "lame" in that it placed the focus on the alleged snub of Roberts and arguably overstated the ethics issue in both tone and substance. That makes the article "lame" because it is too easy for people to portray the article as a hack job on Scalia and to thus ignore the more serious issues presented by the underlying facts.
1.24.2006 5:39pm
OrinKerr:
Mr. Java,

I don't think I understand your perspective. You may believe that the system should be changed, and I am certainly open to arguments about this. I personally admire the approach of Justice Harlan, who refused to vote after he became a Justice because he did not want to be in a position of ruling for or against a President who he had either voted for or voted against. Harlan also refused to attend the State of the Union address so that he could not be seen as endorsing the President's message, however slight that possibility might be. My own view is that this was quite admirable.

But whatever my normative views, the place for expressing those views is in an op-ed, not a news story. Surely you would agree that mischaracterizing facts in quite significant ways in order to help achieve a reform agenda is not appropriate for a highly respected outfit like ABC News. You may share the agenda, but I don't think we should excuse bad reporting when it serves interests we like. Right?

For more, see Tom Goldstein.
1.24.2006 5:47pm
AF:
Orin, I read the "fisking" you link to and I don't see any mischaracterization of facts. One can argue this is much ado about nothing, but where's the inaccuracy?
1.24.2006 5:58pm
Mr. Java (mail):
Medis,

I disagree. I think it is NOTABLE that Supreme Court Justice feel OBLIGATED to miss a swearing in ceremony because they fill COMMITTED to something (not family related) other than one of the most important jobs in the world. Now, I am not jumping the gun here, but I think that is problematic. At the very least, Scalia should put the Supreme Court first and any speaking obligations second. He can simply inform anyone who wants to book him that his schedule is contigent in this way.

Further, I think that the law firm in question here MAY be involved in unduly influencing elected officials. It may not be the case. But it is a connection worthy of further investigation. We shouldn't jump to conclusions, but we should be curious about the meaning of that connection. No rush to judgment, but rather deliberative examination designed to reveal the truth is what is called for.

Finally, I should note that all articles are biased in the sense that they include some relevant information and exclude other relevant information. That is the way it must be. I think we can let the free market of ideas correct such information problems rather than whining about media conspiracies. I very mcuh doubt that anyone who has the attention span to read, what to most people is a very boring story, fail to realize that the story in question does not contain all relevant facts. You can point out that the story is incomplete (just like ALL stories) in a particular way without resorting to name calling. The article has nothing but true facts, but it is mega-lame. I think resorting to name calling in response to an article with true facts is the thing that is mega-lame. Which does not mean that I don't realize that bigger truths can sometimes, intentionally, or unintentionally, obscured by smaller truths. I just don't think that the proper response is name-calling or whining, especially when you have no evidence, as Orin does not, that the article is intentionally trying to obscure any larger truth.
1.24.2006 6:05pm
AF:
I think what led to this story being published is the convergence of at least four factors, none of which would have necessarily been enough in itself to make the story newsworthy, but which, taken together, make the decision to go with the story understandable:

1) Scalia (who was known to be a Chief Justice candidate) is the only justice who does not attend Roberts's swearing in;

2) His reason for not going is that he's at a swanky legal seminar;

3) The Abramoff scandal is much in the news, opening the door for stories about gifts to public officials.

4) The Supreme Court is much in the news, opening the door for stories about the justices.

Only two of these factors are even relevant to Scalia at all and none reflects seriously badly on him. But public officials have stories like this run about them all the time. Does anybody doubt there would be a story if Dick Cheney -- or Hilary Clinton -- missed next week's state of the union address to attend a swank conference in Colorado?

I think the strong negative reaction from such august and reasonable folks as Orin and Tom Goldstein arises from a lawyer's occupational hazard: the assumption that every controversy should be judged by legal or quasi-legal criteria. But the question of what makes something newsworthy isn't really analyzable in that way. How many news stories would stand up to even a minimal procedural due process challenge?
1.24.2006 6:21pm
Paddy O. (mail):
Bench Memos posts an eyewitness account of the whole thing.
1.24.2006 6:22pm
Medis:
Java,

I didn't mean to imply that raising the ethical issues was inappropriate. I just think the article did a poor job of explaining the ethical issues, and started with a breathless tone that actually undermined the story.

But frankly, I don't care about media matters like this. It is easy to point out the errors and missteps in most news reports, but that simply suggests to me that news reports generally should be nothing more than a starting point for serious dicussions.

And I do think Orin is missing the point when he defends mocking this article on the ground that it may be subject to criticism. Again, the problem with his approach was that it seemed to suggest that the entire issue was not a serious one--and that is certainly how a lot of people took his point--although I suspect that implication was inadvertent on his part.
1.24.2006 6:22pm
JonC:
It is accurate and INTERESTING to some people who do not realize that Supreme Court Justices enjoy the perks provided by private parties.

Teaching Con Law on your feet for 10 hours over 2 days is a "perk"?
1.24.2006 6:24pm
JonC:
Whoops, Paddy O. beat me to the link. I still think it's a stretch to characterize Scalia's actions as "enjoying a perk", though.
1.24.2006 6:27pm
ThirdCircuitLawyer (mail):
Stephen Gillers of NYU is a total hack. He thinks that absolutely everything about Scalia, Thomas, and Roberts raises very serious ethics problems. Breyer, Ginsburg, Souter, and Stevens are always ethically perfect. He presumbly thinks that Justice Kennedy raises serious ethics problems in federalism cases, but is ethically pure in privacy cases.
1.24.2006 6:31pm
Mr. Java (mail):
JonC,

Did Scalia voluntarily agree to teach Con Law for 2 days? Yes he did. Was that a voluntary decision? Yes it was. No one forced Justice Scalia to spend his time at the conference. Perhaps it has more to do with the luxury resort than the opportunity to talk about Con Law to a bunch of lawyers. But whatever the motive, it is clear that Scalia thought that this was the most preferred use of his time. So yeah, I would say it was a perk.
1.24.2006 6:55pm
Erick:
"I disagree. I think it is NOTABLE that Supreme Court Justice feel OBLIGATED to miss a swearing in ceremony because they fill COMMITTED to something (not family related) other than one of the most important jobs in the world. Now, I am not jumping the gun here, but I think that is problematic. At the very least, Scalia should put the Supreme Court first and any speaking obligations second. He can simply inform anyone who wants to book him that his schedule is contigent in this way."

Its a swearing in ceremony. A formality. He's not skipping oral argument. He's not refusing to write an opinion.

A couple hundred people book flights and hotel rooms on the expectation that he would show. I think the choice between wasting tens of thousands of dollars and skipping a ceremony no one (but Roberts) will remember a couple weeks from now.

The "supreme court" is not even the choice he's deciding between here. If he let anyone down, it was Roberts himself, not the court, and as such, it is purely an issue between Scalia and Roberts, and honestly I bet the Chief didn't really care.

This entire issue is absurd and deserves even more mockery than its getting. If we think our Justices are so corrupt that any interaction with the public must be called into question than I think the whole thing is long past saving.
1.24.2006 6:58pm
KeithK (mail):
Maybe we ought to isolate our nine justices in a house apart from society. That way we wouldn't need to worry about any of them being unduly influenced by anyone. You could even put TV cameras in and make it a reality TV show! You probably wouldn't need to worry about term limit proposals any more, either.

I think we should take this "news" story about as seriously as the above paragraph.
1.24.2006 7:16pm
Mr. Java (mail):
Erick,

I absolutely 100% disagree with you. A swearing in ceremony of a new Chief Justice or any Justice for that matter is a historic event that deserves respect. Scalia did not merely snub Roberts, he snubbed the Supreme Court as an institution.

I don't care about the 100s of people who signed up to see Scalia. They should realize that his duties at the Supreme Court come first. Scalia should make it clear that his duties at the Supreme Court comes first before he agrees to such engagements so that there is no confusion. Your argument is that these people relied on Justice Scalia showing up when they decided to attend this event; my argument is that reliance is unreasonable. Hit duties are to the Supreme Court as an institution and the American people first; people who want to hear him speak and earn CLE credits absolutely last.

I think that skipping the swearing in ceremony was bad enough. Add to this his consumption of luxury goods provided by 3rd parties, and the picture becomes even more problematic. If he wants to go to such engagements, he should pay for the plane ticket, hotel costs, and the price of any other incidentals. I am not saying that his actions are immoral given the current state of the law; I am saying the law should be changed so that accepting such compensation for 3rd parties is illegal. Nonetheless, immoral or not, I think, like Orin, it would be admirable if he did this on his own, just as Justice Harlan did. Unfortunately, when people don't do the right thing on their own (like those taking lavish gifts from Abramoff) it is necessary to make laws to protect the people from the higher probability of corruption that the provision of perks by 3rd party exposes us to. Maybe Justice Scalia in particular would never be influenced by financial incentives. We can't depend on that as an institutional matter, however. Men can't be depended on to be angels. It is upon that principle that our government is founded.

Keith:

Your extreme point is just silly. No one is saying that Justices need to isolate themselves from society. Only that they should pay their own expenses out of their own pocket. Just like everyone else. Most people pay for their own travel and hotel expenses for non-job related excursions. That doesn't seem to prevent most of them from engaging with society.
1.24.2006 7:36pm
Erick:
You're just being ridiculous.

"Hit duties are to the Supreme Court as an institution and the American people first; people who want to hear him speak and earn CLE credits absolutely last."

I would guess that the number of people outside Roberts' close friends who really cared about the swearing in were exactly zero. Not counting you and others who suddenly decided it was very important when it became a route to smear Scalia.

Judges aren't going to show up for as many of these events if they ahve to pay their own way. That's a simple fact and the legal profession as a whole will be much worse off for it.

Any insinuation that a Supreme Court Justice would change their vote for a $175 hotel room is borderline retarded.
1.24.2006 7:47pm
Erick:
To clarify, I was specifically pointing to the quoted language as being ridiculous and over the top. Talking about duties "to the american people" in such a situation is quite ridiculous. The American People were mostly completely unaware of the swearing in ceremony at all, let alone who was in attendance.
1.24.2006 7:52pm
Kate1999 (mail):
Mr. Java,

You're not a lawyer, are you? You have no idea how the Supreme Court works, do you? Swearing in ceremonies are completely meaningless; they are not scheduled in advance, and no one pays any attention to them.
1.24.2006 7:58pm
JonC:

Did Scalia voluntarily agree to teach Con Law for 2 days? Yes he did. Was that a voluntary decision? Yes it was. No one forced Justice Scalia to spend his time at the conference. Perhaps it has more to do with the luxury resort than the opportunity to talk about Con Law to a bunch of lawyers. But whatever the motive, it is clear that Scalia thought that this was the most preferred use of his time


Give me a break. The conference is held at the same hotel every year, and was scheduled far in advance of when anyone could have guessed Roberts would be sworn in. Had Scalia backed out to attend a pointless formality, dozens of lawyers and law students who had paid to attend the course would have been left in the lurch. So yeah, he probably did use his time more effectively by doing what he did. The fact that he taught the course "voluntarily" had nothing to do with anything.

Please keep flogging this fake story as if it's the scandal of the year though, as it's hilarious to see the depths to which some folks will sink in order to engage in cheap point-scoring.
1.24.2006 8:07pm
Mr. Java (mail):
Erick,

Your totally offbase. Don't assume that anyone who disagrees with you on a particular issue has a particular ideological position when you simply don't know. In fact, I am a member of the Federalist Society.

I don't like flag burning. I really don't. Yeah, who should care. It is only a piece of cloth. But to me, it is a matter of respect. I feel the same way about a swearing-in ceremony. It is a civic duty to show respect at such a ceremony, just as a lawyer before a court shows respect to the judge, referring to him or her as "Your Honor," just as members of Congress should treat the President with respect even when they are from the opposite party, just as one does not cancel an invitation to a State of the Union speech without good reason. These civic ceremonies are important; they are part of the glue that holds us together as a nation.

Your simply ignorant. I have no desire to smear Scalia. I do question his poor judgment.

Will a $175 room sway the vote of a justice? Who knows. It might. You shouldn't underestimate the power of reciprocity. If you knew anything about influencing people, you would realize that small things often matter. Guess who is more likely to be promoted; the person who sends personal notes thanking coworkers, or the person who doesn't? In a rational world, such cards would never make a difference since they surely are not really related to job qualifications in most instances. Nonetheless, such things can sometimes sway an important decision. One could rightfully worry that Scalia might develop some loyalty to certain ideological forces that have provided him with gifts, especially over a period of time. It is not about certainty that he will be influenced either, it is about the higher probability of corruption for justice in general. It is better to error on the side of no possible corruption; if you don't like it, don't become a Supreme Court Justice.

Who would think that skybox seats at a basketball game given to members of Congress would influence their votes? That seems like a pretty trivial gift to me. That isn't what Abramoff thought. Who would think that a member of Congress would make any important decision based on a little golfing trip to Scotland. In a rational world; they wouldn't. We don't live in a world where men can always be trusted to make wise decisions.

Not only that, where do you draw the line? What about airfare that costs thousands of dollars? Trips to Europe? How about trips to Maui? How about hotel nights at expensive resorts over and over again, the value of which adds up over time?

If you want Supreme Court Justices to go out and about talking to groups without spending their own money, their is a simple solution. Have the Federal Government pay for their expenses.

I personally do not think it is that important that Scalia give a speech to a couple of hundred lawyers. I don't see our legal culture suffering, as you suggest. But, if that is that you think, then have the Federal Government pay for it, not third parties.

Justice Scalia works for the People, not any particular private party. Your $175 is okay point knows no principled bounds.
1.24.2006 8:11pm
Gene Vilensky (mail) (www):
One point worth mentioning, is that Roberts' swearing in was done immediately after the vote and was a surprise to a lot of people. If Scalia was out of town anywhere, doing anything (even out to see Cousin JimBob in Oklahoma) he would be unable to make it given that the swearing in happened to quickly. People, get a life.
1.24.2006 8:12pm
Mr. Java (mail):
JonC:

My point was focused on the NARROW point regarding whether or not this trip should be considered a perk. You have obviously lost that argument. It is relevant that the obligation was undertaken voluntarily. Maybe YOU wouldn't find such a conference appealing, but apparently Justice Scalia disagrees enough to devote some of his very valuable time to it. He WANTED to go. It is not something he HAD to do. It is a perk. That is all I am saying.

Did you hear anyone say this was the scandal of the year? No, you didn't. Please, at least be intellectually honest enough to address what was actually said rather than inventing strawmen. It might provide you some intellectual comfort to attack position not taken; I am sure you can easily win those arguments. That may make you feel good, but it doesn't exactly lead to relevant statements.

I hereby agree with you. This is not the scandal of the year.
1.24.2006 8:18pm
JonC:

Your simply ignorant.


I'm declaring that the quote of the day.

And for the record, as silly as it is to suggest that a Justice's vote would be swayed for a night in a $175 hotel room, it's even sillier to suggest that it would be swayed by a night in $175 hotel room paid for by a group that takes no official positions on political issues, conducts no litigation, and files no amicus briefs in any case, anywhere.
1.24.2006 8:18pm
JonC:
I'm sorry, teaching a CLE course just isn't a "perk". And clearly this wasn't your only "NARROW" point. True, you didn't call this scandal of the year, but you're couching your argument in highfalutin rhetoric about Scalia neglecting "his duties to the Supreme Court and to the American people." Please.
1.24.2006 8:22pm
Mr. Java (mail):
Gene,

The swearing-in ceremony would be a predictable result of a confirmation hearing. However, if it did significantly deviate from historic practice, something that I do not know, that would certainly be reasonable grounds for Scalia to miss it. However, if he did know about it, he should have been there.

Kate,

Swearing-in ceremonies might be meaningless to you. I am sure that whether or not the flag is treated with respect is meaningless to others. That does not make it so.

Whether one treats the flag with respect or not typically does not have any legal significance. That does not mean it has no civic significance. I never stated anywhere that attending the swearing in ceremony had legal significance. I think it has civic significance. I guess this is something that is less and less valued in this society. That is too bad.

Finally, why the civic significance of this story is clear, I think the bigger issue is Scalia accepting perks from private parties. That is much more problematic.
1.24.2006 8:25pm
Mr. Java (mail):
JonC,

The Federalist Society does take one major position and they even say so in every speech. "It is emphatically the province and duty of the judiciary to say what the law is, not what it should be." The implications of this position are not perfectly unambigious, but it certainly has ideological implications.

Finally, as an ACTIVE member of the Federalist Society, I think your crazy if you truly believe it is neutral. It may be official non-partisan and may not take any official positions, but most members are either conservative or libertarian. I can't tell you how many members of the Federalist Society were also active in the law school Republican group. Further, you can say that it takes certain "de facto" positions in the ideas it advances through debate. The Federalist Society is quite admirable in making sure that both sides are represented in the debates it sponsors. But, if you think that this organization does not have a "de facto" agenda, then you truly are ignorant. I am an insider; I know.

Finally, you implied that the Federalist society not having an agenda. (I know that isn't what you said; that is what you implied in saying that they don't take "official positions," "conducts no litigation" and "files no amicus briefs." Clearly, the relevance implication here is that the people behind the Federalist Society are neutral, or at least so heterogenous such that there is no risk of undue influence. An implication that is the opposite of reality.) Even if that implication was correct, we could not make an exception for groups like the Federalist Society who merely claim that they don't have an agenda. Why? Because anyone can make such a claim.

This isn't about the Federalist Society or Justice Scalia in particular. Liberal Justices also receive perks from third parties. The principle is that no third party should pay the expenses of these Justices, among our most important public servants. It is totally unnecessary. If we think that their public speaking is important, we can have the Federal Government budget some amount of money for that purpose.
1.24.2006 8:41pm
Mr. Java (mail):
JonC,

"I'm sorry, teaching a CLE course just isn't a "perk""

You could mean two things by this statement.

(1) You could mean that this benefit is not job-related. I would argue it is job-related, since it is much less likely that Justice Scalia would be chosen to teach these courses, but for his job as a Supreme Court Justice. But if this is all you mean, I have no interest in arguing the point.

(2) You could mean that teaching these courses does not benefit Scalia. But then I would ask, why does he do it? Do you think he believes he has some DUTY to teach these courses? I doubt it. I suspect that more people would like Scalia to teach such courses than he would possible be able to attend to. If this was his duty, clearly he would not be able to do it; he would have to decline many more offers to teach than he could possibly accept.

The real reason that he teaches these courses is not because he feels he has a duty, but rather because it BENEFITS him. Benefits (or perks) that cost money should not be provided to Justices, whether in exchange for services or not. You may not think that the benefits provides to Scalia are worth what he does in exchange. But who are you to judge? Scalia demonstrates by his own actions that the thinks teaching these CLE courses are the best use of his time.

Obviously, Scalia benefits. Using my terminology, benefits = perk. The benefits are provided by a third party. Thus, Scalia received a perk from a third party.

Q.E.D.
1.24.2006 8:53pm
In the Year 2000 (mail):
"I think it has civic significance. I guess this is something that is less and less valued in this society."

Much like objectivity in reporting.

Mr. Java
I think you're still missing the whole point concerning Prof Kerr's two posts. I don't believe the prof's posts were supposed to be knee-jerk defenses to Scalia's behavior. Rather, they were supposed to point out the media bias in ABC's article, which paints Scalia as corrupt justice accepting gifts from the Federalist Society while spurning his soon-to-be colleague Roberts. It would be nice had ABC disclosed that Stephen Gillers their "recognized scholar on legal ethics" has written before for the Nation, donated money to Democratic candidates for Senate, and advocated that Kerry choose Bill Clinton as his VP. Maybe it is Gillers who is trying to "snub" Scalia.
1.24.2006 9:02pm
Mr. Java (mail):
In the Year 2000,

I can see how you would think that I don't understand the point of Orin Kerr's posts. This conversation has been diverted quite a bit.

However, I do understand that point about bias. It is a standard one that I am not sympathetic too, taken to the extreme critics of media bias often go. Not because I disagree that reporters demonstrate bias in the selection of facts. They clearly do and will always. It is inevitable. Why? Because of space and time limitations. It is simply infeasible to report every relevant fact.

I think that you have pointed out that there is some lack of symmetry in this reporting. In this case, the mentioning of Federalist Society membership but not the mentioning of the biases of the other so-called expert. I think that is a fair observation; but not one that justified using the term "mega lame" to describe the article as a whole. I think that in all articles, you are going to inevitably have some bias due to fact selection, one way or the other.

The real issue is that people should not believe in the concept of so-called objective reporting. I don't think it is objective now or was ever objective in the past. Why? Because it couldn't be. It was just as infeasible in the past as it is today to report every relevant fact. Like Medis said, news articles should be considered the start of analysis, not a basis on which one forms solid conclusions about reality.

I just think it is wrong of Orin to resort to name-calling concerning an article that reported only true facts. The only time I would think that is appropriate is if someone was deliberately trying to conceal larger truths with smaller truths. I don't see any evidence of that here.

Actually, I don't think that legal experts on ethics on either side are worth anything. We are all perfectly qualified to judge what is ethical or not without having the views of so-called "experts" expressed. Thus, I am not very concerned about the asymetry that you rightly noted with respect to the presentation of potential bias among these experts. If anyone makes a conclusion about ethics based merely what was said by so-called experts in this short news piece, that person's opinion isn't worth anything.

If you want to rant about something, I say don't rant about a "biased media." Rant about people who draw conclusions based on inadequate information, whether provided by the media or elsewhere. That is the real problem.
1.24.2006 9:20pm
Neal Lang (mail):
I personally admire the approach of Justice Harlan, who refused to vote after he became a Justice because he did not want to be in a position of ruling for or against a President who he had either voted for or voted against. Harlan also refused to attend the State of the Union address so that he could not be seen as endorsing the President's message, however slight that possibility might be. My own view is that this was quite admirable.

What's to admire? Presumably, Justice Harlan was nominated and confirmed to fill a vacancy on the Supremes. His position of non-voting on Executive Branch cases was effectively leaving the necessary seat unfilled.

Having taken an Oath of office to carry-out his duty to "support" the Constitution - he decides to not lend his vote to resolve these cases, as required of the position he agreed to fill.

Had Justice Harland informed the President or the Senate of his decision to "take a pass" on any decision that impacted the Executive? If fulfilling ones duty as Citizen to vote is a grounds for recusal, wouldn't virtually the entire Court have the same infirmity? Is Justice Harland merely trying to make a "holier than thou" point vis-a-vis his colleagues on the Court. Did he likewise refuse to accept his salary?

Rather than admire Justice Harlan for shirking his duty - I see his position as extremely anal.
1.24.2006 9:35pm
Neal Lang (mail):
But whatever the motive, it is clear that Scalia thought that this was the most preferred use of his time. So yeah, I would say it was a perk.

And apparently he knew of Rehnquist's demise a year in advance when he made his commitment to attend the function in question and schedule the appointment. Considering how the Judiciary Committee Democrats screwed around with Justice Roberts confirmation process, the new Chief Justice's swearing in could have taken place anytime over a 3 or more week period. If you must blame someone for Scalia's absence at Roberts swearing in, I suggest you point yours guns the real culprits - those Democrats on the Judiciary that screwed-around with an examplary Chief Justice candidate, for base partisan political advantage, thus unnecessarily delaying his Senate vote and swearing in ceremony, causing the scheduling problem.

That beats castigating Justice Scalia for "keeping his word" (rare enough today in any form of political person) to attend the event, despite other pressing business, where his noted nonattendance could become another patented Democrat partisan kerfuffle.
1.24.2006 10:01pm
Neal Lang (mail):
This isn't about the Federalist Society or Justice Scalia in particular. Liberal Justices also receive perks from third parties. The principle is that no third party should pay the expenses of these Justices, among our most important public servants. It is totally unnecessary. If we think that their public speaking is important, we can have the Federal Government budget some amount of money for that purpose.

Ah! The typical Leftist Elitist solution - make the taxpayers' pay for it. PERFECT!
1.24.2006 10:05pm
Neal Lang (mail):
I think you should justify your comment that the article is mega-lame. It is accurate and INTERESTING to some people who do not realize that Supreme Court Justices enjoy the perks provided by private parties.

Frankly, this entire kerfuffle has been generated solely to raise the paranoia level of those "moonbats" that voted for Al "no control legal authority" Gore in 2000 and "Hanoi John" Franco Heinz-Kerry in 2004. I believe it is directed at raising "Hillary! for President '08" contributions from billionaire international currency manipulators like George Soros.
1.24.2006 10:12pm
Neal Lang (mail):
Clearly, what Justice Scalia did was not illegal and it most likely was not immoral. (It could have been immoral for all we know; but it probably wasn't.

But why pass a chance for the MSM to hammer home the DNC "Talking Points" for the 2006 Election that: "Republicans corrupt, but conservative Justices corrupt absolutely!"
1.24.2006 10:15pm
Neal Lang (mail):
At the very least, Scalia should put the Supreme Court first and any speaking obligations second. He can simply inform anyone who wants to book him that his schedule is contigent in this way."

Right! So you think that anyone would book Justice Scalia ever again with such a proviso, when they induced hundreds of lawyers to pay for and attend the event based on the promised Supreme Court Associate Justice attendance. Personal, I can't think of anything so nasty as a Resort-full of attorneys disappointed by Scalia's "no show" and convinced that they had be defrauded.
1.24.2006 10:23pm
Justin (mail):
Neal writes: Ah! The typical Leftist Elitist solution - make the taxpayers' pay for it. PERFECT!

Neal, when it comes to Congress, the taxpayers already pay for it. Today it was reported that the GOP controlled Congress gave away $22 billion dollars in subsidies to the Insurance industry, who donated $24 million to the GOP in the 2004 election. I say we can finance our government more cheaply.
1.24.2006 10:24pm
Mr. Java (mail):
Neal Lang,

Your not even worth talking to. Your way too political for my tastes. Hey, but according to your reasoning, maybe we should save the taxpayers some money and fund Supreme Court Justice salaries by private party contributions. Sounds brilliant. Better than the Leftist Elitist solution of having the taxpayers pay their salaries. Hey! This reasoning applies to Congress too. Why not the President? Hey, maybe ALL judges should be paid by donations from the parties before them. That would save taxpayers money and wouldn't be Leftist Elitist.

Ridiculous. Please say something intelligent. This is not really about politics; it is about good government.
1.24.2006 10:25pm
OrinKerr:
Neal writes:
What's to admire? Presumably, Justice Harlan was nominated and confirmed to fill a vacancy on the Supremes. His position of non-voting on Executive Branch cases was effectively leaving the necessary seat unfilled.
To clarify, when I said that Harlan refused to vote, I meant that he did not vote in Presidential elections. Obviously he voted in Supreme Court cases when acting as a Justice.
1.24.2006 10:33pm
Paul Virkler (mail):
Speaking at a CLE conference without pay is pro bono in he best tradition of the law. Late September in the Rockies is off season. Two cross countries trips for two days of conferences is no fun. The people who think this was fun and games know little how draining CLE con=ferences are especially for speakers. Professor Kerr knows and probably expects that the people who post here would have a clue.
1.24.2006 10:49pm
Neal Lang (mail):
To clarify, when I said that Harlan refused to vote, I meant that he did not vote in Presidential elections. Obviously he voted in Supreme Court cases when acting as a Justice.

Ack So! Never mind!
1.24.2006 10:52pm
Neal Lang (mail):
Neal, when it comes to Congress, the taxpayers already pay for it. Today it was reported that the GOP controlled Congress gave away $22 billion dollars in subsidies to the Insurance industry, who donated $24 million to the GOP in the 2004 election. I say we can finance our government more cheaply.

And your solution is for government to spend more money of the taxpayers' nickel on perks for Supreme Court Justice? Please don't get upset if I can't support you on that one.

BTW, if Insurance companies get get $22 billions in subsidies, does tha mean my Auto Insurance Premium is less? Wouldn't the Insurance merely pass on to their policy holders any shortage in government sunsidies? Does this negatively impact illegal immigrants, as they do by Auto Insurance? Is there perhaps the potential for "class action" suit in here somewhere?
1.24.2006 11:00pm
Neal Lang (mail):
Your not even worth talking to. Your way too political for my tastes.

Ah, aren't you even going to give me a chance?
Hey, but according to your reasoning, maybe we should save the taxpayers some money and fund Supreme Court Justice salaries by private party contributions. Sounds brilliant.

I think so. Sounds like it might work to me. Maybe some sort of "user fee" system. It works for the National Parks. Make the fees high enough and it might just solve the "frivolous law suit problem". We're really on to something here!
Better than the Leftist Elitist solution of having the taxpayers pay their salaries.

Exactly!
Hey! This reasoning applies to Congress too.

Hey, why not!
Why not the President?

Exactly! Now you've gotten the spirit. Maybe we could incorporate the government and sell shares. Privatize! Its works with everything else. Let's give it a try as a means of capitalizing government. "Government For Profit - An Idea Whose Time Has Come" - I can see the bumper stickers already. Maybe we can even offer bonuses to the more productive judges and civil servants. Merit pay! What a concpt! Of course, we will need to "Bust the Unions" first - but with G.W. in the White House that shouldn't be hard to do.
Hey, maybe ALL judges should be paid by donations from the parties before them.

That's exactly what I mean by "user fees"! The loser pays, to cut down on those "frivolous law suits" clogging the docket.
That would save taxpayers money and wouldn't be Leftist Elitist.

Right on! The perfect solution! I'm glad you decided to get on board. Start convincing your friends and family. Get enough folks working this great idea and we should have no problem having it installed.
Ridiculous. Please say something intelligent.

Ah! You really weren't sold on the idea, after all, were you?
This is not really about politics; it is about good government.

You truly aren't that naive now are you? Government is pure Politics. In fact even the Judicial Branch is all Politics now. Just ask Chunky Schumer!
1.24.2006 11:29pm
Mr. Java (mail):
Paul,

Maybe speaking at a CLE conference at a resort in a trip that involves fly fishing and tennis is, in your judgment, not an enjoyable experience. Then again, maybe you are wrong. Unlike the rest of us, Scalia probably can get away with talking about Constitutional Law with very little preparation.

But whether you are wrong or not, clearly the Federal Government OR the Justice should be the one financing the trip. Not a private party. I question the value to the overall public of having Justices perform "pro-bono" at these conferences to such relatively small audiences. But if that public benefit in fact exists and is significant, that would seem to justify taxpayer funding. That would lower the probability that such events turn into opportunities to influences Justices through the principle of reciprocity or even more devious means.

This is not about Justice Scalia. Whether teaching the particular CLE course in question and the tennis and fly fishing were a net benefit to Scalia in this particular instance is largely irrelevant to the larger policy question that this trip brings to mind. Your theory is that this is about duty (pro-bono duty) not personal benefit. But in the end, that is not so important because as a general matter you will not be able to accurately ascertain the true motives of someone in a verifiable manner. You have a gut feeling that Scalia was doing this (instead of spending time with his family) out of a sense of duty. But that is not really verifiable. You don't really know if the personal benefits of this event were greater than the costs. From a policy perspective, we should assume the worst; we should assume that people are corruptible and that their actions are motivated by personal benefit. If it was a matter of individual judgment, then surely Scalia should get the benefit of the doubt. But this is not about Scalia in particular. This is about fallible people who have the particular job that Scalia is fortunate enough to temporarily occupy.

So, whether the CLE course is a "perk" or a "duty," the policy response is the same. We must assume it is a "perk" and insist that either Scalia pay for it himself or have the Federal Government pick up the tab. If men were angels, we would not need to be so cautious. But then, if they were angels, we would not need Seperation of Powers or a written Constitution either.
1.24.2006 11:35pm
Neal Lang (mail):
BTW, if Insurance companies get $22 billions in subsidies, does tha mean my Auto Insurance Premium is less? Wouldn't the Insurance companies merely pass on to their policy holders any shortage in government subsidies? Does this negatively impact illegal immigrants, as they don't buy Auto Insurance? Is there perhaps the potential for "class action" suit in here somewhere?

Dang, I must be getting tired!
1.24.2006 11:35pm
honeybadger (mail):
Much ado about nothing. One wonders if there would have been such a stink if this had been sponsored by any other organization than "the sinister" Federalist Society. Or attended by any other justice.

"The people who think this was fun and games know little how draining CLE conferences are"

Really? I think it's enormous fun to go to this kind of thing, credit or not. I'm no Scalia partisan, but I'm sorry I missed it.

"Maybe we ought to isolate our nine justices in a house apart from society."

YES! Now THERE'S a reality show I'd watch.
[Insert inappropriate humor of your choice here.]
1.24.2006 11:37pm
Neal Lang (mail):
Unlike the rest of us, Scalia probably can get away with talking about Constitutional Law with very little preparation.

Hmmm! Maybe that is the reason he can demand the big bucks and the primo perks!
1.24.2006 11:37pm
Neal Lang (mail):
"Maybe we ought to isolate our nine justices in a house apart from society."

YES! Now THERE'S a reality show I'd watch.
[Insert inappropriate humor of your choice here.]

Name That Reality Show Contest:
1st Prize: Marathon 2 day Trip to Colorado in September to Present two days of lectures on Constitutional Law. Lavish perks including tennis and fly fishing.

Here's my entry: "Extreme Justice"
Plot: Two 4-men "tribes", the "Cons" and "Pros", vie for supremacy in the "Judges Chambers" where they are to stay, secluded from society until a new "Chief Justice" is chosen. The weekly winning tribe, chosen by vote of the studio and TV audience (with the tie-breaker being the vote of the only distaff member of the Court, who gets to stay with the winning tribe until the following week's show when the competition is repeated). The winning Justice will get unlimited number of lucrative Constitutional Laws Lecture Engagement Contracts held at the best Spas and Resorts around the country and the World, getting the opportunity to "rub elbows" with the "rich and famous" in the law business.
1.25.2006 12:04am
KMAJ (mail):
All this over a non-story. Here's the solution, put the Justices all in an isolated compound, no outside contact.

Simple facts: 1.) This speech was scheduled long before Roberts even started having his hearing, probably before his nomination. 2.) A large number of people paid money to hear him speak. Those thinking he should have cancelled for a formality swearing in are making a straw man argument. Those complaining about speaking engagements before groups with a bias or agenda, this includes law schools, the only solution is the one at the top.
1.25.2006 12:23am
Medis:
KMAJ,

What about simply requiring judges to pay their own expenses? That seems like a good compromise: it wouldn't prevent judges from taking speaking engagements, but it would make sure comping travel expenses was not used as a substitute for making payments to the judges.
1.25.2006 12:45am
Paul Virkler (mail):
Java, according to ABC he had time for two hours of tennis. Do the math, that was all the free time he had, with 10 hours of conference, meals and meet and greet. Late September there are less tha 12 hours/day of light. No fly fishing unless he skipped the meeting he was leading.
How can you insist this was a perk? Was it for the frequent flyer miles. Fly cross country, get there late the first night, two days of conferences 2 hours of tennis, get up 6 am and fly back crosss country. Prepare hundreds of pages of text. I am happy that I do not have perks like that.
1.25.2006 1:06am
minnie:
Is there anything more repugnant than a human being who admits that one of his greatest sources of joy in life is killing beautiful, innocent creatures just for the fun of killing? No other reason. Just because he likes to kill.

I wish people wouldn't talk about Scalia and "morality" in the same breath. In my opinion, he has none.
1.25.2006 3:18am
no one:
KMAJ:

It was a snub. Regularly people break such engagements. It was a fundraiser for the Federalist Society, a group that amounts to a de facto lobbying group for the Court. The current "pay to play" system at the Court is a racket and has an odor to it. Many state Courts have long since abandonned this type of "greasing" of the palms of jurists.

Would your reaction be the same if it was Ginsburg who skipped to give a speech at an ACLU "ethics" fund raiser?

Put another way, it is just simply tacky.
1.25.2006 10:47am
Mylar Thomson (mail):

What about simply requiring judges to pay their own expenses? That seems like a good compromise: it wouldn't prevent judges from taking speaking engagements, but it would make sure comping travel expenses was not used as a substitute for making payments to the judges.



Why make any changes at all? Why don't people like you simply stop character-assassinating federal judges?
1.25.2006 11:22am
Neal Lang (mail):
Ridiculous. Please say something intelligent.

Breaking:
What lessons should we have learned from last summer's deadly and destructive hurricanes? The primary lesson is that we shouldn't have much faith in a federal bureaucracy like the Federal Emergency Management Agency (FEMA). They amply demonstrated their incompetence, but what's our response? We'll give them more money and more authority. That's not smart.

The FEMA fiasco is discussed in several articles in the December 2005 issue of The Freeman: Ideas on Liberty magazine, published by the Foundation for Economic Education, the nation's first free market think tank (fee.org). Hillsdale College professor of economics Robert Murphy points to some of FEMA's stupidity in response to Hurricane Katrina, which includes "delaying firefighters two days in Atlanta hotels to receive sexual-harassment training and watch videos on the history of FEMA while people were dying in New Orleans."

By contrast, private firms like Wal-Mart, Sam's Club and Home Depot had trucks on the road immediately after the hurricane. Stores even gave away items like chain saws and boots for rescue workers, sheets and clothes for shelters, and water and ice for the public. Wal-Mart was so efficient that there was talk among some Louisiana officials of letting Wal-Mart take over FEMA's job and a suggestion that Wal-Mart CEO Lee Scott run FEMA. Freeman editor Sheldon Richman says the latter suggestion misses a very important point. Wal-Mart was effective because it was not a government agency. If Mr. Scott were in charge of FEMA, he wouldn't do much better than its former director, Michael Brown. Government cannot achieve the efficiencies of a business. Trying to get government to be as efficient as business is as hopeless as trying to teach cats to bark and dogs to meow. From: In government we trust

Just as we discuss! "Run Government Like Business"

Time to get on board!
1.25.2006 1:04pm
Neal Lang (mail):
Is there anything more repugnant than a human being who admits that one of his greatest sources of joy in life is killing beautiful, innocent creatures just for the fun of killing? No other reason. Just because he likes to kill.

I wish people wouldn't talk about Scalia and "morality" in the same breath. In my opinion, he has none.

Yes there is! I would suggest any woman who chooses to murder her unborn innocent child has much less moral standing than someone who supports wildlife management and habitat by buying hunting licenses and enjoying the great outdoors the way our Founders did.

BTW, what creature is more innocent and vulnerable than the unborn child?

The really "repugnant" Supreme Court Justices are the ones who find a Constitutional "right" for a woman to have a doctor stick a pair of surgical scissors into the back of the neck of their "fully formed", partially born, child; then insert a hose from a vacuum pump into the incision; and then suck the infant's brains out!

Judicially speaking, there is nothing else which is "more repugnant" than that.
1.25.2006 1:29pm
Neal Lang (mail):
Many state Courts have long since abandonned this type of "greasing" of the palms of jurists.

Oh, you mean by electing their Judges so that they must raise compaign money from those same attorneys who must plead cases before them?
Would your reaction be the same if it was Ginsburg who skipped to give a speech at an ACLU "ethics" fund raiser?

Probably not, seeing how ABC would never have reported the event!
1.25.2006 1:33pm
keypusher (mail):
Speaking as a fairly inactive member of the Federalist Society, I am sorry we admit trolls who don't know the difference between "your" and "you're." Less Java, please.
1.25.2006 1:41pm
Cold Warrior:
Paul Virkler said:


Late September in the Rockies is off season.


True. And that makes the value of the trip considerably more reasonable. Why aren't judges simply required to disclose the value of the food/lodging/activities fees? Public opinion will certainly determine whether there is an appearance of impropriety.

And went on to say:


The people who think this was fun and games know little how draining CLE conferences are especially for speakers.


C'mon, give me a break here.

A while back I commented on a thread dealing with attempts to "term limit" Supreme Court justices; specifically, the suggestion that by statute Congress could rotate Supreme Court judges into the Circuits at a certain age and authorize replacements, etc.

My comment was this: Supreme Court justices don't retire because the job is too easy. Not "too easy" in that it isn't intellectually challenging, or even in the sense that it doesn't require long hours. Rather, it is "too easy" in that it allows way too much time for this kind of teaching/junketeering. Others have mentioned Justice Kennedy's annual summer vacations (errr, "teaching commitments") in Europe. Rehnquist used to do the same. Scalia does plenty of zipping around to Federalist conferences and duck hunting trips. (Unanswerd question: does he chain smoke in those duck blinds? Doesn't that give the ducks a fighting chance?)

Hey, it's a cushy job. A Supreme Court justice's salary doesn't go that far in Washington anymore. If you haven't made or inherited a private fortune, you're not gonna be able to afford the Loire Valley in the summer and the Ritz-Carlton/Bachelor Gulch at any time.

Has Scalia been "bought off" by the Federalist Society? Of course not. That's silly. Let's be honest here: these events aren't about lobbying a fellow traveler. They are about schmoozing. It's about a bunch of young and youngish types (think Alito, c. 1985, boasting about his membership in an idiotic and virtually defunct Princeton snob organization) kissing the behind of Scalia and Ashcroft types.
1.25.2006 2:02pm
Observer (mail):
I fail to see how it was a "perk" in any sense for Justice Scalia to prepare a 480-page course guide and then teach 10 hours of classes over two days and in exchange receive room and board. His co-professor received not only room and board but also an honorarium which Scalia did not receive; if that was the "fair market value" of the teaching services rendered, which seems reasonable since it would be difficult to argue that the Federalist Society was currying favor with some con. law professor, the inevitable conclusion is that Scalia donated part of his time to the Federalist Society. That would make a lot more sense than arguing that somehow he was given a free benefit.
1.25.2006 2:36pm
Cold Warrior:

the inevitable conclusion is that Scalia donated part of his time to the Federalist Society. That would make a lot more sense than arguing that somehow he was given a free benefit.

Oh, now I see, Observer.

I hope Scalia hasn't filed his 2005 income tax return yet. I think he could sell the IRS on the value of his "charitable gift in kind" to the Federalist Society.

Yet another example of how lawyers steadfastly refuse to live in the real world ... there's a lot of perfectly good defenses of Scalia's acceptance of the Bachelor Gulch invitation; this isn't one of them.
1.25.2006 2:44pm
Neal Lang (mail):
I hope Scalia hasn't filed his 2005 income tax return yet. I think he could sell the IRS on the value of his "charitable gift in kind" to the Federalist Society.

To what end would declaring "the 'fair market value' of the teaching services rendered" for tax purposes, if doing so would only be offset by an equal amount of "unreported teaching income" thus eliminating any benefit derived from the "charitable gift in kind".
1.26.2006 2:28pm
John Gillick (mail):
Fun fact for those who think he should or should not have broken his commitment.

I have nothing intelligent to say, but would like to add a fact. I took a 2 day class taught by this dynamic duo (Prof. Baker of LSU and Justice Scalia) on the Federalist papers.

There were about 35-40 law students in the class from all over the country (held at GMU in northern Virginia). Justice Scalia cancelled on us. Now I don't know what his conflict was, it might have been very important, because he cancelled the day before he was going to show up. Instead Prof. Baker showed us a Scalia v. Bryer debate on using international law in U.S. Constitutional law (which was interesting).

So I'd like to agree that Justice Scalia had a prior obligation, but we have:
100 lawyers at a CLE in Colorado v. 40 law students in a law class at GMU.
Holding: The CLE is more important than the swearing in of the Chief Justice, and the law students (from all over the country) are told to come back to DC in 4 months.


I express no opinion as to which was actually more important, and wouldn't even if I knew what caused the Justice to cancel on us (though I do feel bad for those who don't live in DC and couldn't come back for the lecture Scalia gave as part of the class). I just wanted to point out that this "commitment" has at least one reason to be broken.
1.27.2006 1:04am