Letter to the American Bar Association on the judicial code of conduct

May 9, 2011

Mr. Stephen N. Zack

President

The American Bar Association

321 North Clark Street

Chicago, IL 60654-7598

Dear Mr. Zack:

In light of recent reports in The New York Times indicating that Supreme Court Justice Clarence Thomas may have provided false information on the annual financial disclosure forms required by the Ethics in Government Act and may have engaged in fundraising activities that appear to be in violation of Canon 4 of the Code of Conduct for U.S. Justices, I would urge the American Bar Association to do the following: Issue a public statement stating the position of the American Bar Association on whether these activities represent a violation of the judicial code of conduct;

1. Include in that statement the American Bar Association's position on whether the current Judicial Conference Code of Conduct should be binding and applicable upon members of the US Supreme Court;

2. Call upon Chief Justice Roberts to provide answers on behalf of the US Supreme Court to the question of whether the judicial code of conduct does or does not apply to the Court. And, if the Code does apply, the American Bar Association should request a response from the Court as to how it enforces it;

3. Call upon Chief Justice Roberts to provide answers on behalf of the Court and Justice Thomas, in particular, to questions concerning:a. Justice Thomas's personal involvement in fundraising for the Pin Point Heritage Museum in Thomas's hometown;

b. Allegations that Justice Thomas traveled on Harlan Crow's private jet and yacht and has failed to disclose such gifts on his annual financial disclosure forms;

4. The apparent conflict of interest inherent in Justice Thomas' acceptance of personal gifts including a bust of President Lincoln valued at $15,000 from an entity for which Mr. Crow was serving as a trustee;

5. Call upon the US House and Senate Judiciary Committees to hold hearings to consider legislation extending the Judicial Conference Code of Conduct to include all federal judges, including the US Supreme Court Justices.

I appreciate your longstanding commitment to maintaining the highest ethical standards within the legal profession. We are convinced that Justice Thomas' reported fundraising activities and potential violation of the Canons merit your attention as head of our nations' largest voluntary legal bar association. Our system of justice depends on public confidence that those administering the laws are also following them - in letter and spirit. While the Supreme Court is at the pinnacle of the justice system, and only it can enforce the rules on its members, it is vital that respected, legal organizations such as the ABA make their views publicly known on such critical matters as these.

As you may know, Common Cause has been concerned for some time about the Court's adherence to the Code of Conduct. While the language of the Code does not mention the Court, Justices Kennedy and Breyer told the House Appropriations Financial Services subcommittee on April 14, 2011 that the justices take pains to follow the canons.

"The Code of Conduct does apply to the justices in the sense that we have agreed to be bound by them," Justice Kennedy testified. "Those rules are public and if there is some question that we haven't complied with the letter or spirit of those rules, there can be comment about that. Of course, the court has to follow rules of judicial ethics. That's part of our oath, that's part of our obligation of neutrality."

I am confident that you would agree that all members of our highest court should observe the same high standards of conduct that the Code imposes on every other federal judge. To not do so would create a situation that in effect allows the highest court in our land to abide by the lowest standards within the judicial branch.

As part of this request, I have attached a number of relevant documents for your review, including our recent letter to the Chief Justice asking for clarification of the Code of Conduct for Federal Judges to the US Supreme Court and a letter to the US Congress urging the adoption of a comprehensive code of conduct applicable to the US Supreme Court signed by 135 Law Professors.

Again, I would urge you in your capacity as president of the American Bar Association to respond in a timely fashion to the issues raised in this letter.

Sincerely,

Bob Edgar

CC: Attorney-at-law Ms. Carolyn Lamm, immediate past president, ABA

The Honorable, Justice Patricia Quinn, Florida State Supreme Court, Chair,

ABA Judges Advisory Commission

Enclosures:The New York Times, "Ethics, Politics and the Law" (June 30, 2011)

The New York Times, "Friendship of Justice and Magnate Puts Focus on Ethics" (June 18, 2011)

March 17, 2011 Letter to US Congress, signed by 135 Law Professors urging adoption of a comprehensive code of judicial ethics applicable to US Supreme Court

May 3, 2011 Letter to the US House Subcommittee on financial Services and General Government from the US Supreme Court

May 9, 2011 Letter from Common Cause to The Honorable John Roberts, Chief Justice, US Supreme Court

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