Reformers, Senior Lawmaker Charge Justice Thomas and Federal Appellate Judge Diane Sykes With Violating Judicial Ethics

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  • Dale Eisman

A senior Member of Congress and reform advocates are charging Supreme Court Justice Clarence Thomas and federal appeals court Judge Diane Sykes with violating judicial ethics by agreeing to headline the Federalist Society’s annual fundraising dinner tomorrow evening in Washington, DC.

Common Cause, Alliance for Justice, and U.S. Rep. Louise Slaughter, D-NY, sent a letter of complaint about Justice Thomas’ conduct to Supreme Court Chief Justice John Roberts. They have also filed a formal ethics complaint with the 7th Circuit Court of Appeals against Judge Sykes, who will be “interviewing” Thomas as the main feature at tomorrow evening’s black tie fundraiser.

Canon 4C of the Code of Conduct for U.S. Judges bars federal judges from using the prestige of their judicial office for fundraising purposes, and specifically states, “judge may not be a speaker, a guest of honor, or featured on the program” of a fundraising event.

The Code of Conduct is binding on all federal judges except for Supreme Court justices. However, Chief Justice Roberts claimed in his 2011 year-end report that the code “plays the same role” for the Supreme Court as it does for other federal judges, and other justices have said that they follow it.

“By headlining this fundraiser, Judge Sykes is clearly in violation of the Code of Conduct for U.S. Judges and Justice Thomas would be as well – if only the Supreme Court was bound by an ethical code,” Rep. Slaughter said. “The guidelines contained in the Code exist to ensure the public has faith that judicial decision-making is based on the facts and the law, not politics and outside interests. Congress must act to ensure the Supreme Court plays by the same ethical rules as all other federal judges. Moreover, we believe Judge Sykes to be in violation of the Code and have filed a complaint with the United States Court of Appeals for the Seventh Circuit.”

“Justice Thomas is among several members of the high court who’ve made a habit of flouting judicial ethics by headlining Federalist Society fundraisers,” said Arn Pearson, Common Cause’s vice president for policy and litigation. “He gets away with it because the Court has exempted itself from the Code, but that doesn’t make it right. Our nation’s highest court should not have the lowest ethical standards. However, that loophole does not extend to Judge Sykes, so we have filed a formal ethics complaint with the Seventh Circuit.”

“Here we have the spectacle of two judges helping the Federalist Society raise funds,” said AFJ President Nan Aron. “Yet while Judge Sykes is violating a binding code of conduct, Justice Thomas is not, because the Supreme Court refuses to be bound by any formal, written code of ethics. Congress needs to change that.”

Pearson and Aron said Thomas’ participation in the Federalist Event, and similar appearances by Justice Samuel Alito last year and Justices Antonin Scalia and Thomas in 2011, underscore the need for congressional action to bring the high court under the Code of Conduct. Legislation pending in both houses would require the Court to adopt its own ethical code, including all the canons in the existing code for other judges. Congresswoman Slaughter is the sponsor of the House bill (H.R. 2902).

Chief Justice John Roberts and other members of the Supreme Court have said they look to the code for ethical guidance but have refused to make it binding. The code is administered on other judges by the U.S. Judicial Conference, chaired by the Chief Justice.

Thursday’s dinner at Washington’s venerable Omni Shoreham Hotel is part of the Federalist Society’s three-day “National Lawyers Convention” that is taking place several miles away at the Mayflower Hotel. Other speakers at the convention include U.S. Sens. Ted Cruz, R-TX, widely considered a likely GOP presidential contender in 2016, and Mike Lee, R-UT, along with Wisconsin Gov. Scott Walker.

Aron and Pearson emphasized that there is no ethical problem with Justice Thomas, Judge Sykes and other jurists attending and participating in events sponsored by the Federalist Society and other legal associations. But when judges at any level agree to serve as fundraising headliners, they cross an ethical line.

The $200-per person Federalist dinner-sold out well in advance-annually attracts a crowd of more than 1,200 lawyers, lobbyists, law professors, members of Congress, and executives; in past years, corporate sponsors and major law firms, including some with partners who regularly practice in the high court, serve as “gold,” “silver” or “bronze” sponsors, depending on how much they contribute for the event.

“No reasonable person can look at this event and conclude that it is anything other than a means to raise funds for the Society’s work,” Aron said. “I’m quite sure the lawyers and corporations attending the event think that’s what they are doing.”

“Judges undermine the integrity of our legal system when they lend their prestige to fundraising efforts, particularly by groups that have an ideological agenda or have proceedings before the courts,” Pearson said. “It is time to stop the growing politicization of American courts.”

Last summer, Gallup reported that Americans’ approval of the Supreme Court hit a near all-time low.

“We hope these ethics complaints move the courts to take their neutrality seriously and spur Congress to make the Code of Conduct binding on the Supreme Court,” Pearson said.