Talking turkey about rubber chicken – and Supreme Court ethics

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While most of us still may be thinking about yesterday’sturkey dinner right now, at Alliance for Justice we’re also thinking about ducks – as in “if it lookslike a duck and quacks like a duck …” and chicken, as in the rubber varietyoften served at fundraising dinners.
What brings all this poultry to mind is the response of theFederalist Society when Alliancefor Justice and Common Cause pointed out that, for the second year in arow, a justice of the United States Supreme Court was headlining its annualfundraising dinner.  Were any other federaljudge to do this, it would be a violation of the Code of Conduct for federaljudges – but Supreme Court justices are exempt.
The fact that the event was a fundraiser is crucial.  We have no problem with SupremeCourt justices speaking at events, even when they are hosted by groups with astrong ideological point of view.  Wherethey cross the line – and ignore the code of conduct – is when their appearanceis used to raise money for the organization.
The Federalist Society response, accordingto the Associated Press: It’s not a fundraiser.  In fact, they say, they even lose money onevery meal. 
That’s a curious response given what one finds on the program for the event.  More than35 major corporations and prominent law firms are listed as “sponsors” of theevent.  There are Bronze Sponsors” like Covingtonand Burling and the Lincoln Financial Group, “Silver Sponsors,” including JonesDay, Patton Boggs, PepsiCo and Facebook, and “Gold Sponsors,” including Chevron,Verizon and Sullivan & Cromwell.  Toppingthem all is the “Sponsoring Law Firm,” Gibson, Dunn & Crutcher.
So either the hotel where the dinner took place serves theworld’s most expensive rubber chicken – or it was a fundraiser.
It’s no wonder that, when the Federalist Society said much the same last year, whenJustices Clarence Thomas and Antonin Scalia headlined the dinner, Matt Wuerker,the Pulitzer Prize-winning cartoonist for POLITICO didn’tbuy it:

(c) Matt Wuerker

 Whenit comes to the ethics of speaking at a fundraiser, the success of the eventdoesn’t matter.  As Prof. Stephen Gillersof New York University School of Law explained in an analysis written for AFJ:
It may turn outthat the organization is disappointed because the event does not earn a profit.But that is irrelevant. Judges have an obligation in the first instance toassure themselves that the event will not be a fundraiser. 
It all illustrates, once again, why it’s so important tomake the provisions of the Code of Conduct binding on Supreme Courtjustices.  Since it doesn’t appear likelythat the justices will do this themselves, Congress should do it for them.