Judicial ethics and global warming
Community Rights Counsel has spent much of the last decade researching and documenting undue, anti-environmental corporate influence on the federal judiciary, exposing the proliferation of privately-funded junkets billed as “judicial education seminars.” Through reports such as 2004’s Tainted Justice, we’ve highlighted the agenda of particular hosting groups, one steeped in libertarian economics and a regulatory agenda that is deeply opposed to government efforts to combat global warming. Recent ethics rules for the federal judiciary have addressed judges’ participation in these junkets, but contained loopholes that have continued to benefit their supporters.
One of the organizations involved in this arrangement is the Montana-based Foundation for Research on the Environment and Economics (FREE), a pro-business/anti-regulation outlet that has received heavy funding from corporate interests such as Exxon-Mobil and ideological forces such as the foundations run by the Scaife and Coors families. Two years ago, in response to an ethics petition filed by CRC, the federal judiciary’s Committee on Codes of Conduct authored a non-public ethics opinion deeming it inappropriate for federal judges to sit on FREE’s board. Unfortunately, in the interim, two federal judges– Danny Boggs of the 6th Circuit and Edith Brown Clement of the 5th Circuit– have continued to ignore this opinion, free from public scrutiny due to the Judiciary’s keeping this matter cooped up.
That should end today. CRC has written the judiciary seeking public release of this opinon, which likely played a role in three other judges’ (very reluctant) decision to resign from FREE’s board [UPDATE: we’ve received a rather pointed and quick response from Judge Gordon Quist, declining our request]. The timing of this matter is critical– as documented here in the Daily Journal, legislation aiming to end this practice stands a decent chance at passing when the Senate Judiciary Committee takes up judicial pay raises tomorrow:
Although the judges find the seminars stimulating, they also enjoy the resort-style accommodations. When asked by ABC News whether a judicial seminar at the Omni Tucson Resort was a “junket,” one judge responded in Clintonian terms: “It depends on what you mean by ‘junket.'” Another judge candidly described the conference as his well-deserved “vacation.” As one seminar host put it, these plush resorts are “a very useful place to have a conversation.”
The U.S. Congress is now poised to end this cozy arrangement. As it considers legislation to boost judicial salaries, a move long overdue, the Senate Judiciary Committee is examining a bipartisan proposal…that would prohibit judges from accepting travel gifts from these private groups, with reasonable exceptions for bar associations and the like. Just as Congress relinquished certain perks when it approved previous pay raises for itself, [Senator Feingold proposes] that judges do the same.
Make no mistake: while FREE’s junkets do contain a lot of educational discussion, in some, the perspectives of speakers and the overall agenda skew markedly toward the libertarian, anti-climate-change-regulation standpoint of FREE’s funders. One judicial seminar detailed in Tainted Justice, a 5-day retreat hosted by FREE, bore the seemingly innocous title of “Understanding the Ecology, Economics and Effects of Climate Change.” Its apparent focus, however, was on fomenting opposition to climate-related regulations. FREE admitted this much, as per a 2006 Washington Post op-ed by noted EPA whistleblower Eric Schaeffer:
Ginsburg, Sentelle and 10 other federal judges at this particular conference were warned about deep scientific uncertainties, according to FREE’s John Downen, who, in writing about the seminar, suggested that people adapt to higher temperatures through economic growth, rather than by cutting emissions.
The two judges Schaeffer singles out by name, DC Circuit Court of Appeals Chief Judge Douglas Ginsburg (who resigned from FREE’s board in response to the ethics complaint filed by CRC) and Circuit Judge David B. Sentelle, have become pivotal figures in the legal debate over climate change. As Schaeffer noted, Ginsburg and Sentelle constituted the 2-1 majority on the DC Circuit that initially ruled in the Bush administration’s favor in Massachusetts v. EPA, a decision that was later overturned by the U.S. Supreme Court.
With the courts increasingly becoming an active venue in the struggle to cope with global warming, that’s not a loophole that we can afford to keep open. The federal judiciary should make full public disclosure about this matter, and Congress should follow suit by passing Senator Feingold’s proposal– which would end this ethically-tainted practice for good, and send a message throughout the legal and political world that unbiased assessments of science and the rule of law, not ideologically-skewed perspectives, should be used to adjudicate climate litigation.