Three Federal Judges Unethically Serve On Board of Group That Opposes The Affordable Care Act

Yesterday, ThinkProgress reported that three U.S. Court of Appeals judges serve on the board of the Foundation for Research on Economics & the Environment (FREE), an organization that “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.” Moreover, these three judges, Edith Clement of the Fifth Circuit and Alice Batchelder and Danny Boggs, both of the Sixth Circuit, have remained on the board despite an ethics opinion from a committee of federal judges which unequivocally states that belonging to this board violates these judges’ ethically obligations under federal law. As the opinion explains, by serving on the board the judges “personally advocate FREE’s values and positions” and thus could create the impression that their “impartiality may be impaired as to certain issues likely to arise in federal court.”

Although FREE’s name suggest that its primary interest is in environmental law, the organization has hosted junkets and published a number of articles on other topics that are likely to arise in pending litigation. Indeed, some of the views which Judges Batchelder, Boggs and Clement “personally advocate” by serving on FREE’s board raise serious questions about whether their “impartiality may be impaired” in the highest-profile cases in decades — the many lawsuits challenging the Affordable Care Act.

In addition to hosting at least one junket on health reform, FREE has published a number of articles questioning the wisdom of the Affordable Care Act — often telling stories more suited to Glenn Beck’s show than to an organization targeting federal judges. One of these articles, for example, consists largely of FREE’s board chair reminiscing about the time when “[Saul] Alinsky and his acolyte, Bill Ayers, were mobilizing Chicago through ACORN, the Woodlawn and Gamaliel Foundations, the Weather Underground.”

But what FREE’s articles on the Affordable Care Act lack in coherence they make up for in disdain for “Obama Care.” One article parrots the claims of Ken Cuccinelli and other anti-health reform plaintiffs who warn that upholding the Affordable Care Act could lead to an unlimited expansion of the federal government — in FREE’s words “[t]hose with an unconstrained vision of the good that government can do see health care reform as an opportunity to increase government’s scope and power.” Another article mocked the Affordable Care Act’s supporters as “naïve”:


I have intelligent, generally well-informed friends who initially favored various versions of Obama Care. They put hopes and expectations in the same basket. I am hopeful that our impending experiences will change their naïve beliefs in centralized approaches to such complex social systems as health care.

Presently, a Michigan judge’s decision upholding the Affordable Care Act is pending in Judges Batchelder and Boggs’ court, and a similar case could easily arise in Judge Clement’s Fifth Circuit. If these three judges insist upon remaining on FREE’s board, they should think very hard about the impression of partiality they would create if they are selected to hear these cases.