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Wow indeed


Good essay from a long-serving federal judge Michael Ponsor about how no formal code of judicial ethics can be a substitute for a judge’s personal sense of propriety, which needs to be far more scrupulous that that of the average public official:

The fact is, when you become a judge, stuff happens. Many years ago, as a fairly new federal magistrate judge, I was chatting about our kids with a local attorney I knew only slightly. As our conversation unfolded, he mentioned that he’d been planning to take his 10-year-old to a Red Sox game that weekend but their plan had fallen through. Would I like to use his tickets?

I was tempted. The tickets were beyond my usual price range, and the game would be a fun outing with my 7-year-old. It didn’t seem to me that the lawyer was trying to do anything improper. It seemed to be — and almost certainly was — just a spur-of-the-moment impulse arising out of a friendly conversation. Moreover, the seats at Fenway Park, like the much more expensive seat on the private jet used free by Justice Samuel Alito on his Alaska vacation, would probably go empty if I didn’t take them. Who would be harmed?

To my chagrin, as I pondered the situation, I became aware of an aroma of something off. Not an actual smell, of course, but something like that — something like a whiff of milk on the verge of going sour or a pan left on the stove too long. It wasn’t that the lawyer had evil intent; it was that I was approaching a boundary. Silently gnashing my teeth, I turned the tickets down.

A few years later, after I’d received my appointment as a life-tenured U.S. district judge, I issued a decision reversing the Social Security Administration’s denial of disability benefits to an older plaintiff. I was in our clerk’s office one day when the man and his wife approached me with a package. He had a woodworking hobby, and inside the package was an exquisitely crafted oak pencil case with bronze hinges. My ruling had made a big difference for them, and they wanted to extend this modest, personal gesture of gratitude. Again, they were obviously not being underhanded. Their lawsuit was over, and this was probably the last they would ever see of me. Nevertheless, as my police officer friends tell me, the road to perdition starts with a free cup of coffee. As politely as I could, I turned the pencil case down. It still pains me to remember their embarrassed, crestfallen faces.

All my judicial colleagues, whoever has appointed them, run into situations like these regularly, and I expect they have responded in just the same way. You don’t just stay inside the lines; you stay well inside the lines. This is not a matter of politics or judicial philosophy. It is ethics in the trenches.

The recent descriptions of the behavior of some of our justices and particularly their attempts to defend their conduct have not just raised my eyebrows; they’ve raised the whole top of my head. Lavish, no-cost vacations? Hypertechnical arguments about how a free private airplane flight is a kind of facility? A justice’s spouse prominently involved in advocating on issues before the court without the justice’s recusal? Repeated omissions in mandatory financial disclosure statements brushed under the rug as inadvertent? A justice’s taxpayer-financed staff reportedly helping to promote her books? Private school tuition for a justice’s family member covered by a wealthy benefactor? Wow.

I see people argue that SCOTUS justices are badly underpaid, which strikes me as really absurd. Leaving aside that their salaries are now close to $300,000 per year, all of them are either already or very soon will be in a situation where they could draw that salary and its associated benefits for life without working another day, while supplementing that modest stipend with the enormous sums they could make as lawyers for big firms — such positions would barely require them to actually practice law of course — or the smaller but still huge stipends they could get for giving speeches and the like. That the precise number of SCOTUS justices who choose to do this is zero is a nice example of what economists call “revealed preference.”

In any event, Ponsor is right that the kind of feather bedding being practiced by Thomas, Alito, et. al., and in particular the defense of it by various prominent lawyers and legal academics, ought to be shocking on its face.

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