Should Federal Judges Be Allowed to Earn Speaking Fees?

There is currently a debate in Congress over whether federal judges (including Supreme Court Justices) should be allowed to receive honoraria (i.e., fees) for speaking engagements.

The practice was formerly permitted, but was banned in 1989. Prior to the ban, Justice Scalia made a fair amount of money giving speeches. He has been agitating for some time to lift the ban.

This issue has been brought to the fore because Republican Senators Judd Gregg (of New Hampshire) and Mitch McConnell (of Kentucky) surreptitiously tried to lift the ban by slipping a provision to that effect in an appropriations bill.

Two questions come to mind for debate:

  1. Should the ban be continued?. My position is that the practice should remain banned. Why? Allowing judges and justices to receive speaker fees is an invitation to graft. What’s to prevent a wealthy person or company from paying exorbitant honoraria to a judge or justice in hopes of influencing the outcome of pending or future litigation?

  2. What is motivating these two Senators to try to slip this provision through Congress without full debate? The cynic in me fears that some of the very moneyed interests who would like to be able to influence litigation through the payment of honoraria may be working through these Senators to try to get the ban lifted. Please convince my inner cynic that this is not so.

Theoretically you could require such a judge to recuse himself from any case that involved someone who had given him a speaking fee.

What are currently the rules regarding outright gifts to judges?

IzzyR wrote;

Perhaps. But my inner cynic is persistent. He contends that those wishing to influence outcomes might not be so obvious. Perhaps they would offer the honoraria through third parties. (E.g., Company ABC makes a large charitable donation to the XYZ Foundation. Later, the XYZ Foundation asks Judge Doe to give a speech, paid for -ultimately- through the good graces of Company ABC. See what I mean?)

Another scenario: Perhaps a powerful law firm with no current matter before the court might sponsor a speaking engagement the better to influence the judge in possible future litigation.

**My inner cynic is naive by comparison. He thinks that there are alot of ways to circumvent alot of laws. But you don’t go about outlawing all sorts of activities because of “what if” scenarios unless you have specific evidence that the abuses are widespread and hard to check. Was this the case prior to the outlawing of honoraria?

Would not the threat of having this judge recuse himself from all their cases deter them? (If the judge did not recuse himself, he would face legal sanctions, plus the decision would be overturned).

It would be a great scenario if a judge took so much honoraria from so many law firms that he had to recuse himself from almost all his cases, and ended up sitting in his chambers all day, posting to internet message boards.

I’m not sure this second scenario would require recusal at all.

I admit that (not being a judge) I am not intimately familiar with all of the canons of judicial ethics. However, an analogous situation arises in the context of campaign contributions. Here in Georgia, state court judges and justices are elected. As you might expect, the large law firms in Atlanta contribute generously to the election campaigns. Yet, I do not see the judges recusing themselves every time a law firm which is a campagn contributor brings a case before them. Sould they be required to do so?

Any judges or former judges out there?

[QUOTE]
*Originally posted by spoke- *
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I don’t know if there is such a law. But there should be.

IIRC, the canons of judicial ethics require judges the recuse themselves whenever there is even an appearance of impropriety. This, like most attorney and judicial ethics rules, is not followed or enforced nearly as well as it should be, but under this canon, judges should recuse themselves from cases involving campaign contributors.

Sua

Who exactly is empowered to investigate the Supreme Court anyway? I mean, should there be influence peddling or the appearance of such, what agency is responsible for investigating? Congress? DOJ?

SuaSponte wrote:

I’m not sure that approach would work. I can imagine a Machiavellian twist. Imagine you are a lawyer who defends a lot of personal injury suits. Down at the courthouse, there are 8 judges. Four of them, you’ve noticed, frequently rule in favor of personal injury plaintiffs. Your clever solution is to contribute to the campaigns of these judges, forcing them to recuse themselves in cases in which you are involved. The result is that your cases always wind up in front of one of the 4 judges you like.

I think a better rule would be to simply prohibit lawyers and law firms from contributing to judicial elections. I’m not sure such a rule could pass muster under the First Amendment, though.

It’s a thorny problem.

Just an update for those folowing this matter (which, judging by the number of responses to this thread, is not many)

Why should federal judges be different than any other kind of judges. Whatever consensus y’all come to, shouldn’t it apply to all judges?