Alito and Ethics

"Is it legal for a Justice of the United States Supreme Court to attend political fundraisers?"

That's the query posed by Lee Fang, a reporter at Think Progress, to Justice Samuel Alito at the American Spectator fundraiser, which Alito reportedly "headlined" in 2008.  

Fang at Think Progress describes The American Spectator as a "right wing magazine" that was behind the attempts to impeach Bill Clinton, that its publisher leads the “Conservative Action Project,” formed after President Obama’s election, to help lobby for conservative legislative priorities, elect Republicans and block President Obama’s judicial appointments.  The keynote speaker at last evening's event was Rep. Michele Bachmann (R-MN); her remarks are here.

On the other hand, The American Spectator describes last evening's event thusly:

The Robert L. Bartley Gala Dinner is a "widely attended" event pursuant to Senate and House Ethics Rules. The American Spectator Foundation is a nonprofit, nonpartisan media organization responsible for publishing The American Spectator and its companion website www.spectator.org.

Fang reports that Alito dismissed Fang's question to Alito at the event:

As Alito entered the event last night, I approached the Justice and asked him why he thought it appropriate to attend a highly political fundraiser with the chairman of the Republican Party, given Alito’s position on the court. Alito appeared baffled, and replied, “it’s not important that I’m here.” “But,” I said, “you also helped headline this same event two years ago, obviously helping to raise political money as the keynote.” Alito replied curtly, “it’s not important,” before walking away from me.

Fang's attempt to video the Justice was unsuccessful. 

Judicial ethics of federal judges are governed by the Code of Conduct for United States Judges. 

As John Steele (of the terrific Legal Ethics Forum blog) and Seth Barrett Tillman have pointed out, the Code of Conduct does not apply to Supreme Court Justices. 

The Code of Conduct is promulgated by the Judicial Conference if the United States, and the Chief Justice of the United States is the presiding officer of the Judicial Conference.   However, by its terms, "This Code applies to United States circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, bankruptcy judges, and magistrate judges. Certain provisions of this Code apply to special masters and commissioners as indicated in the “Compliance” section. The Tax Court, Court of Appeals for Veterans Claims, and Court of Appeals for the Armed Forces have adopted this Code."   

There does not seem to be any specific Code of Conduct for Supreme Court Justices.  So, these provisions, while presumably worth considering because they apply to the federal judiciary, are not applicable to Supreme Court Justices.

Canon 4 provides:

A judge may engage in extrajudicial activities, including law-related pursuits and civic, charitable, educational, religious, social, financial, fiduciary, and governmental activities, and may speak, write, lecture, and teach on both law-related and nonlegal subjects. However, a judge should not participate in extrajudicial activities that detract from the dignity of the judge’s office, interfere with the performance of the judge’s official duties, reflect adversely on the judge’s impartiality, lead to frequent disqualification, or violate the limitations set forth below.

The limitations include subsection (c):

Fund Raising. A judge may assist nonprofit law-related, civic, charitable, educational, religious, or social organizations in planning fund-raising activities and may be listed as an officer, director, or trustee. A judge may solicit funds for such an organization from judges over whom the judge does not exercise supervisory or appellate authority and from members of the judge’s family. Otherwise, a judge should not personally participate in fund-raising activities, solicit funds for any organization, or use or permit the use of the prestige of judicial office for that purpose. A judge should not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive or is essentially a fund-raising mechanism.

[emphasis added].

Perhaps the ethical consequences turn on the question of when an "event" becomes a "fund-raising activity" or a solicitation of funds.

Or given that this rule is not strictly applicable, perhaps the ethical consequences turn on even more ambiguous - - - and unwritten - - - standards.

RR

[image: Alito being sworn in at United States Supreme Court Justice, 2006, via]