An organization called the Foundation for Research on Economics & the Environment (FREE) routinely hosts free junkets for federal judges where they can ride horses, bunk with industry attorneys, and learn how to decide environmental cases in ways that benefit FREE’s corporate funders. Those funders include corporations such as Texaco, Exxon, General Electric, Koch, Monsanto, and Shell. FREE’s board of trustees includes three sitting U.S. Court of Appeals Judges: Edith Clement of the Fifth Circuit and Alice Batchelder and Danny Boggs, both of the Sixth Circuit. Yet, despite the obvious ethical problems raised by Clement, Batchelder and Boggs’ service on the board of an organization that both provides free trips to judges and is funded by frequent litigants before those judges’ courts, these three judges continue to serve.
A newly-released ethics opinion, however, may finally force these judges to comply with their ethical obligations. In 2005, Judge Andre Davis also served on FREE’s board, but after he received a complaint regarding his association with a junkets-for-judges organization, Davis requested an ethics opinion from a committee of federal judges empowered to opine on whether a judge is behaving within their ethical obligations. That committee’s response was an unambiguous no:
It is the Committee’s view that your service on the FREE Board of Trustees violates Canon 5B. It is clear from FREE’s website that FREE espouses particular points of view on a broad array of public policy issues, both through its seminars and conferences and through its publications. Indeed, FREE takes an active stance on environmental issues that are frequently before the courts. While FREE is not a party to those cases, your impartiality reasonably could be questioned in environmental cases because you personally advocate FREE’s values and positions on environmental issues through your service on FREE’s Board of Trustees. [...]
Because your service on FREE’s Board could create in reasonable and informed minds a perception that your impartiality may be impaired as to certain issues likely to arise in federal court, your service also runs afoul of Canon 2A of the Code, which requires a judge to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
To his credit, Judge Davis promptly resigned from FREE’s board upon receiving this opinion, but other judges have ignored the ethical issues raised by their association with FREE. In 2005, for example, Judge Boggs refused to step down from FREE’s board after an ethics complaint that closely resembes the one filed against Davis was filed against him. Hopefully, now that an ethics opinion which conclusively labels service on FREE’s board as unethical has been made public, Judges Batchelder, Boggs, and Clement will do the right thing.
Ultimately, however, it’s questionable why any federal judge ever believed service on FREE’s board does not raise serious questions about their impartiality. Beyond the obviously compromising nature of FREE’s core activities — free trips for judges and fundraising from industries eager to influence those judges’ decisions — the board’s other members includes ethically-compromised individuals such as Former Attorney General Ed Meese, who was forced to resign his office just months before the end of the Reagan Administration under a cloud of ethical scandal. Other FREE board members distinguish themselves solely through their outlandish right-wing views. FREE board member and right-wing law professor Todd Zywicki, for example, once published a book chapter suggesting that dollar bills violate the Constitution.