The Commonwealth Iconoclast

A site dedicated to covering issues relevant to the Commonwealth of Virginia, and nation at large, plus other interesting things too, as I see fit...

Wednesday, January 25, 2006

Is the SCOTUS becoming the next Congress?

By now you have probably heard plenty about the Jack Abramoff scandal that is rocking the U.S. Congress. You might even know that Virginia's Congressional Represenatives have some very, very close ties to Mr. Abramoff - this is old news, and still evolving.

As long as there has been a Congress, there has likely been corruption, and it's not exclusive to one particular political party either (but it does appear that Congressional Republicans have perfected the art of corruption as of late). Until some meaningful reform is enacted (e.g. term limits) we will likely continue to see Congressional leaders with their hands out looking for cash, and favors (like a golf trip to Scotland) in return for legislative "consideration".

But what happens if a sitting member of the Supreme Court of the United States decides they too want to act like a member of Congress? After all, presently there are no ethics rules - that I know of - that forbid a sitting Justice from receiving gifts from "close friends". It appears that Justice Scalia is so fond of some of his "close friends" - in this case the Federalist Society - he chose to skip the swearing in of Chief Justice John Roberts last September in order to get in some R & R time with members of the Federalist Society at an exclusive resort in Colorado. I mean how could Justice Scalia refuse? After all the Federalist Society footed the entire bill, and the swearing in of Chief Justice Roberts is just a silly formality anyway!

Of course this is not the first time Scalia's ethical conduct has been been questioned. Who can forget the time that Justice Scalia took a hunting trip with his pal Dick Cheney, just three weeks after the SCOTUS agreed to hear a case involving - of all people - Dick Cheney! (I do take comfort in the fact that I'm sure ethical concerns prevented the two from talking about the pending case during their hunt. Let's be fair!)

So what's the difference between Justice Scalia taking an exclusive trip funded by the Federalist Society and Justice Ginsburg doing the same but funded by the ACLU? To me, there is no difference. Here's an interesting quote from the ABC article linked above:

An examination of the Supreme Court disclosure forms by ABC News found that five of the justices have accepted tens of thousand of dollars in country club memberships. And Justice Clarence Thomas has received tens of thousands of dollars in valuable gifts, including an $800 leather jacket from NASCAR, a $1,200 set of tires, a vacation trip by private jet, and a rare Bible valued at $19,000.

Therefore, I guess I'm back to my orginial question, is the SCOTUS becoming the next Congress? Since the SCOTUS does not appear have "clear cut" ethical rules (see Scalia and Cheney), it's then the responsibility of the individual Justices to determine what is indeed ethical and what is not. Consider this: Jack Abramoff wouldn't be facing prison time if he had chosen to lobby the SCOTUS instead of the U.S Congress!


  • At 1/25/2006 4:12 PM, Blogger The Richmond Democrat said…

    Supreme Court justices can be impeached too.

    Anyone remember Abe Fortas? From Wikipedia:

    "Also controversial was Fortas's acceptance of $15,000 for speaking engagements at the American University law school. While not illegal, the size of the fee raised much concern about the court's insulation from private interests. Fortas also faced hostile questioning about his relationship with Lyndon Johnson while on the Court. At his confirmation hearing, Fortas denied continuing as an advisor to Johnson, though White House tapes now prove this to be untrue, as Johnson consulted with Fortas about political matters frequently while Fortas was on the Court."

    "Fortas's nomination resulted in a five day filibuster led by Republicans and conservative southern Democrats ("Dixiecrats"). A cloture motion to end the filibuster failed. At that time, 67 votes were needed to stop debate (it is now 60). The vote was 45-43, with 10 Republicans and 35 Democrats voting for cloture and 24 Republicans and 19 Democrats voting against cloture. The 12 other Senators, all Democrats, were not present. Fortas then withdrew his name from consideration. The next president, Richard Nixon, a Republican, appointed Warren E. Burger as Chief Justice."

    "Fortas remained on the bench, but in 1969, a new scandal arose. Fortas had accepted a secret $20,000 retainer from the family foundation of Wall Street financier Louis Wolfson, a friend and former client, in January 1966. Fortas signed a contract with Wolfson's foundation; in return for unspecified advice it was to pay Fortas $20,000 a year for the rest of Fortas's life (and then pay his widow for the rest of her life). Wolfson was under investigation for securities violations at the time and expected that his arrangement with Fortas would help him stave off criminal charges or help him secure a presidential pardon; Fortas denied that he ever helped Wolfson. Wolfson was convicted of violating federal securities laws later that year and spent time in prison, and Fortas returned the retainer. When Chief Justice Earl Warren was informed of the incident by the new Attorney General John N. Mitchell, he persuaded Fortas to resign to protect the reputation of the Court. President Nixon appointed as his replacement Harry A. Blackmun."

  • At 1/25/2006 4:34 PM, Blogger Will Vaught said…

    So I guess the moral of the story is you can accept gifts, trips, an so forth, but you just can't get paid in cash...

  • At 1/26/2006 12:57 PM, Blogger zen said…

    Yeah or don't get caught?? Shakey ethics, especially for someone who's judgement is the sole qualification for the lifetime position. Madness.

    On the larger point of lobbyist libertarian step father sent me this. I agree with this point:
    "I find it hard to believe that changing the congressional ethics rules or placing new restrictions on lobbyists will do much good. After all, we already have laws against bribery, theft, and fraud. We already have ethics rules in Congress. We already have campaign finance reform. We already require campaigns and lobbyists to register with the federal government and disclose expenditures. We already require federal employees, including the president and members of congress, to take an oath of office. None of it is working, so why should we think more rules, regulations, or laws will change anything?

    Lobbying, whether we like it or not, is constitutionally protected. The First amendment unequivocally recognizes the right of Americans to “petition the government for a redress of grievances.” We can’t deal with corruption in government by ignoring the Constitution."

  • At 1/26/2006 2:34 PM, Blogger Will Vaught said…

    "Shakey ethics, especially for someone who's judgement is the sole qualification for the lifetime position." couldn't agree with you more on this one Zen...and a good link, makes some valid points...

  • At 1/26/2006 8:34 PM, Blogger said…

    Solution for the next Democratic president if s/he has a Democratic Senate: Court-packing. FDR tried it and SCOTUS backed off its right-wing nuttiness. The Constitution gives no indication of number of justices, so the more, the merrier.

  • At 1/27/2006 9:55 PM, Blogger Chris Porter said…

    FYI - that's a CLE course that Justice Scalia was teaching.

    I take it you aren't a member of the bar, but CLEs are a major pain in the rear. I would be seriously ticked if I had my CLE requirement scheduled and the teacher bailed at the last minute.

    I also will wager that the amount of time Justice Scalia put into the course doesn't work out in his favor when the only compensation is a few nights at a hotel.

    Given your reputation for thorough research, I would have expected better than taking ABC News stories verbatim.

    Check out for the other side to the story.

  • At 1/30/2006 9:17 AM, Anonymous Anonymous said…

    Using ABC News as a source? Drudge Report would have been a better choice, or even Fox News, come on are slipping on us Will?


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