Friday, December 21, 2007

It's Not the Size of the Gift, But the Rationalization that Counts

Posted by Jeff Lipshaw (cross-posted at Concurring Opinions)

When I was at Tulane last year, I got a call from the Times-Picayune to comment on what has now become this story about the Fifth Circuit's recommendation that Federal Judge Thomas Porteous be impeached.  The issue on which I was asked to comment was the propriety of an alleged $1,000 hunting trip to which the judge was treated by a defendant company in a pending maritime injury case, and which was not disclosed to the plaintiff. Looking back at my comments, I now recall what seemed so odd about the whole thing.

"Federal judges by and large have the reputations of being absolute paragons of integrity," said Jeffrey Lipshaw, a visiting professor at Tulane University Law School. "The perception is that they bend over backwards to avoid even the appearance of impropriety."

Lipshaw said Porteous, who makes $165,200 a year, might have considered the value of the excursions so trifling that they would not be seen as swaying his conduct in court. If the judge thought there was something improper about the trips, Lipshaw said, why would he disclose them on his financial reports, which are submitted to the Judicial Conference and remain public record for five years? * * * "It is entirely possible that the gifts in fact did not influence him," Lipshaw said. "But even if in your own mind you know they did not make any difference, and you are just as likely to rule for or against on the merits, the very reason it smells funny is the reason you should not do it."

Yes, why take the tiny benefit and then disclose it?  Assuming the allegations are borne out, this is not as simple as saying a person is crooked.  I see the option backdating issue the same way.  You have managed either by frame of reference (model or game?) or by internal advocacy (call it rationalization) to put aside that moral tickle ("hmm, should I take that hunting trip when I have a case pending with the company; gosh, it's only a $1,000 and I will disclose it on my yearly report?" or "hmm, what's wrong with creating a document that says the options were granted when they weren't; I'm just correcting what is a stupid accounting anomaly?") David Brooks had an insightful New York Times op-ed on Barack Obama a few days back, and I think piece captures the essence of the theme.  Your sense of right and wrong has to predate and transcend the context or the frame.  Brooks observed:  "Many of the best presidents in U.S. history had their character forged before they entered politics and carried to it a degree of self-possession and tranquillity that was impervious to the Sturm und Drang of White House life." You can make an argument for anything, but there's still that smell test.

http://lawprofessors.typepad.com/legal_profession/2007/12/its-not-the-siz.html

Judicial Ethics and the Courts, Law & Business, Lipshaw | Permalink

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