Wednesday, January 25, 2006

An Ethical Question

Nod to Scholar-Advocates Could Be Justice Breyer's Duck Hunt
Los Angeles Daily Journal, Jan. 26, 2005, at 8

Much has been written about U.S. Supreme Court Justice Stephen Breyer's recent book "Active Liberty," concentrating on the merits of his methodology in adjudicating constitutional cases. Though I tend to agree with those who deem his quest for "active liberty" as nothing more than him trying to get a vibe for what the Constitution stands for, instead of what it actually says (and does not say), I write to raise an ethical question.
In the "acknowledgments" section of his book, he thanks, among others, advocates who appear before him - namely professors Laurence Tribe and Erwin Chemerinsky - for "[t[heir critiques, their ideas, and their suggestions" for "hav[ing] helped [him] enormously, adding much of the value to the enterprise." He thanks all those he has mentioned "for their many contributions."
Though the "Code of Conduct for United States Judges" encourages judges to "speak, write, lecture, teach, and participate in other activities concerning the law," they should do so only so long as "in doing so the judge does not cast reasonable doubt on the capacity to decide impartially any issue that may come before the judge."
Although in no way am I suggesting that Breyer should recuse himself every time Tribe or Chemerinsky appear before him, I do question the wisdom of soliciting regular advocates before the Supreme Court for assistance and "contribution" in these extra-judicial activities.
Commentary to Canon 1 of the U.S. judges code states, in part, that "[t]he integrity and independence of judges depend in turn upon their acting without ... favor." More to the point, Canon 2(b) states that a "judge should not ... convey or permit others to convey the impression that they are in a special position to influence the judge."
There is also an open question as to whether advice from these scholars has monetary value (I am not sure whether they were compensated by the justice or the publisher for their time), as Canon 5(C)(4) states that "[a] judge should not solicit or accept anything of value from anyone seeking official action from or doing business with the court or other entity served by the judge ... except that a judge may accept a gift as permitted by the Judicial Conference gift regulations."
In all fairness to Breyer, the last two times that Chemerinsky has appeared before him he has batted 1 for 2. In Lockyer v. Andrade, 538 U.S. 63 (2003), Chemerinsky got Breyer's vote while losing the case in a 5-4 decision (Chemerinsky wanted to have California's "three-strikes" law declared unconstitutional).
In Van Orden v. Perry, 125 S.Ct. 2854 (2005), however, Breyer turned out to be the swing vote in another loss for Chemerinsky, who had argued that a Ten Commandments display in Texas violated the First and 14th Amendments to the U.S. Constitution. (Chemerinsky is also a named plaintiff in the case of F.A.I.R. v. Rumsfeld, 390 F.3d 219 (3rd Cir. 2004), certiorari granted, 125 S.Ct. 1977 (2005), currently pending before the Supreme Court dealing with the Solomon Amendment.)
A cursory review of professor Tribe's more extensive record before the Supreme Court leads to the same conclusion; there is no correlation between the advocate and Breyer's voting pattern. (It should be noted that recent correspondence between the justice and the professor, made public, shows that "Steve" and "Larry" are on a first name basis with each other.)
The above analysis demonstrates that Breyer is not necessarily swayed by his friendship with these scholars-turned-advocates. However, the analysis, as it was with the whole Scalia-Cheney duck-hunting fiasco, is whether someone with a "reasonable mind" thinks that the justice's impartiality may be impaired.
Ultimately the test that can be gleaned from the judges code is whether a reasonable person would think that these advocates "are in a special position to influence the judge," or that a reasonable person may think that the judge's impartiality may be compromised. Again, based on a quick review of their appearances before Breyer, one can certainly conclude that there is nothing there. But, then again, a reasonable person could think otherwise.
Nothing in this essay should be construed as a suggestion that a judge cannot be a friend with those that appear before him. If that were the case, Justice Clarence Thomas' recent attendance at Ted Olson's (former solicitor general and regular advocate before the court) annual barbecue would violate that rule. In fact, it is not even being suggested that what the justice did was necessarily inappropriate. It should simply serve as an invitation for dialogue regarding an area of law with no clear contours (the code is not even binding on the Supreme Court).