Nearly all of the judicial ethicists contacted by the Star Tribune had some kind of relationship with legal publishers. West provides marketing assi stance to the American Law Institute, of which Hazard is director. And Hazard sits on the advisory board of Little Brown Co. Gillers moderates an on-line ethics forum for Lexis Counsel Connect, a partnership of American Lawyer Media and LEXIS. He is the a uthor of two law school texts published by Little Brown & Co. Lubet is co-author of a book published by a subsidiary of LEXIS-NEXIS and another book published by the National Institute for Trial Advocacy. Abramson has had several books published by West.
In today's world the judges and justices would have been better advised not to go to a fancy place unless there was an institutional barrier between them and West. I can understand how the litigants feel about it.
On the other hand, I don't think the judges violated a rule. I'm sure they don't think they violated a rule. But as so happens in the modern world it's only experience that tells us there is a bette r way to do it or to set it up in a different kind of way.
While I don't have any doubt that everyone's motives are completely pure, and the goals are worthy, there is an in evitable appearance that this relationship has gone too far.
A predictable litigant and significant vendor should not be directly providing opulent perks to neutral decision makers. I would say ordinarily that participation on a committee of this na ture would not require recusal of a justice, but in the cases you ve described, with the receipt of the benefit so close in time [to the court decision] and so extraordinary in its level of luxury, I think that recusal might be necessary.
But becaus e this involves the Supreme Court, it's a real conundrum. Usually a judge can cure an appearance of partiality by declining to participate in a case. But it takes four justices to accept a cert petition [a request to review a lower court ruling]. So when a justice considers cert, the decision not to sit is identical to a vote against taking the case. That tells me that Supreme Court justices, much of whose work consists of deciding which cases to hear, ought to be especially careful about involving themse lves with parties whose interests may come before the court.
It's a bad idea for a federal judge to accept expensive travel and entertainment from any corporation or business entity that is likely to be before that judge's court. And large companies are especially likely to have matters at the Supreme Court. The trips that you have shown me are what most Americans would call lavish. They were to high-priced resort areas at th e optimum time of the year. They were first class. They were more than comfortable. I put myself in the position of an opponent of the sponsor of those trips. A judge has to say, Suppose a case comes before me in which my benefactor is a party. Will its opponent be concerned? I think the answer will often be yes.
I want to make it clear that I think the idea for the Devitt committee is laudable. I don't doubt anyone's good intentions. It is perfectly legitimate for a law book publisher to sponsor such an award. I've nominated someone myself and to enlist the aid of judges in selecting the recipients and to pay their reasonable expenses in fulfilling that selection obligation.
I don't see any problem with justices being involved in the selection process for such an award if they did it for a few hours in Washington, D.C., or some place nearby, perhaps at a dinner meeting.
But the idea of taking your spouse a nd going off to a remote vacation spot where a small percentage of your time is going to be taken in the selection process is what creates the appearance that this is a gift. As long as the process includes a stay at a luxurious locale for the selection c ommittee, the Supreme Court shouldn't be involved in it.
. . . The
more judges who have taken these trips, arguably, the more serious
appearance problems would be, the more quantitatively tainted would be
process of considering a case in which the donor
was a party.
Copyright, 1995, Star Tribune