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By Richard A. Serrano and David G. Savage
Times Staff Writers
March 11, 2004
WASHINGTON — Supreme Court Justice Ruth Bader Ginsburg has lent her name and
presence to a lecture series cosponsored by the liberal NOW Legal Defense and
Education Fund, an advocacy group that often argues before the high court in
support of women's rights that the justice embraces.
In January, Ginsburg gave opening remarks for the fourth installment in the
Justice Ruth Bader Ginsburg Distinguished Lecture Series on Women and the Law.
Two weeks earlier, she had voted in a medical screening case and taken the side
promoted by the legal defense fund in its friend-of-the-court brief.
The liberal Ginsburg's involvement with the legal activist group, and recent
outside activities by a conservative colleague, Justice Antonin Scalia, have
touched off a debate over what kinds of extrajudicial appearances and contacts
are appropriate for Supreme Court justices.
The code of conduct for the federal courts does not set clear rules for judges'
involvement with advocacy groups. But it warns jurists to steer clear of outside
legal activities that would "cast reasonable doubt on the capacity to decide
impartially any issue that may come before" them.
Federal law says a judge or justice "shall disqualify himself in any proceeding
in which his impartiality might reasonably be questioned."
Several legal experts say Ginsburg's ongoing affiliation with the legal activist
group undercuts her appearance of impartiality. Ginsburg declined to comment.
Although Ginsburg was well known as a lawyer for her support of women's rights,
Hofstra University law professor Monroe Freedman said she should have severed
her public ties with advocates for women's issues when she was elevated to the
Supreme Court by President Clinton in 1993.
"I think this crosses the line," he said.
Ginsburg's affiliation with the advocacy group raises issues similar to those
prompted by Scalia's appearance last year before a group whose members oppose
gay rights at the same time the court was weighing a landmark gay rights case.
Kathy Rodgers, president of the NOW legal defense fund, said Ginsburg's
connection with the group should not raise questions about her impartiality as a
Supreme Court justice.
"She is always very careful in her remarks," Rodgers said. "I've never heard her
address cases that are in front of the court. So I don't see any evidence of her
violating her impartiality."
Ginsburg was a member of the board of the legal defense fund for a brief time in
the 1970s, and also served on the group's advisory committee for judicial
education. But Rodgers said there was no "alliance" between Ginsburg and the
defense fund.
The NOW fund brings lawsuits in the lower courts and regularly files briefs in
the Supreme Court. In the last year, it has urged the high court to uphold
affirmative action in University of Michigan cases, to endorse gay rights in a
Texas sodomy case, and to preserve the Family Medical Leave Act in a Nevada
case.
Rodgers said her group cosponsors the Ginsburg lecture each year with the Assn.
of the Bar of the City of New York.
She lauded Ginsburg as someone with "the deepest roots in her own career in
trying to advance women's rights in the law."
On Jan. 29, Ginsburg introduced this year's speaker, Roxanne Conlin, a prominent
trial lawyer who recently co-chaired Democratic Sen. John Edwards' presidential
campaign in Iowa. The legal defense fund's website features a photo of Ginsburg
and Rodgers together at the event.
Two weeks earlier, the Supreme Court voted unanimously with women's rights
advocates in a case that tested a state's duty to provide medical screening for
low-income children. The legal defense fund filed an amicus brief in the case on
what turned out to be the winning side.
Joni Jones, an assistant state attorney general in Utah, filed a competing
amicus brief on behalf of 19 states. Told of Ginsburg's connection with the
legal defense fund, Jones said:
"They're an advocacy group. When you are a judge or a justice of the Supreme
Court, everything you can do to appear completely impartial is important."
Other legal experts ranged in their comments from critical to cautious.
"It is not illegal, but as a matter of judgment I would say appearing before the
NOW legal defense fund is inappropriate," said Geoffrey C. Hazard, a University
of Pennsylvania law professor. "It is a demonstration of an affiliation."
Hofstra's Freedman said justices should "draw the line at cause-oriented
litigation organizations…. The NOW legal defense fund is an advocacy group that
appears regularly before the [Supreme] Court. That's why they exist — to
litigate these issues. So the linking of that organization with a justice is a
problem."
Freedman said the legal defense fund benefited from the affiliation.
"It's something that is extremely important to this group. They put them
together on their website because it's important to their membership and for
their fundraising. It says something for them if Justice Ginsburg is associating
with them. It also says something that a justice of the Supreme Court should not
say."
Others had no problem with justices speaking before legal or advocacy groups.
"This is a judgment call. We have to be careful here," said New York University
law professor Stephen Gillers, an expert on legal ethics. "Some might say judges
should lead monastic lives, but I don't believe that. I think judges and
justices should participate in broad legal debates, but within restraints."
Gillers said that a justice should not speak only to conservative groups or only
to liberal groups. And he said they should not let their names be used to raise
money.
Rodgers said the legal defense fund did not use the lectures to raise money.
She also said the New York bar, not the legal defense fund, reimbursed Ginsburg
for her travel, lodging and meals in connection with the lectures — an
arrangement borne out in Ginsburg's financial disclosure forms.
Rodgers also denied that her group was trying to capitalize on Ginsburg's name,
or using the lecture series for any purpose other than to stimulate discussion
about women's issues.
"We don't endorse political candidates," she said. "We are just lawyers and
advocates."
Ginsburg's appearance before the women's rights group has many similarities to
Scalia's appearance in May before a "pro-family" advocacy group in Philadelphia.
In both instances, the groups stood for causes and either took their fights to
court or allied themselves with legal battles.
Scalia was invited to speak in Philadelphia by William Devlin, the founder of
the Urban Family Council and the lead plaintiff in a lawsuit that seeks to
overturn the city's ordinance that allows gays and lesbians to form "domestic
partnerships." Scalia appeared as the high court was deciding a landmark gay
rights case from Texas.
Earlier, the Los Angeles Times reported that Scalia had gone hunting with Vice
President Dick Cheney in January soon after the Supreme Court had agreed to hear
an appeal involving Cheney's energy policy task force.
And Scalia went hunting with the governor of Kansas at a time when the high
court was deciding two Kansas cases.
Scalia has argued that his socializing with plaintiffs or other litigants is not
grounds for "reasonable" people to challenge his impartiality. Although some
groups have called on him to withdraw from hearing the Cheney case, he has given
no indication he intends to do so.
Other justices have not commented on the issues. But in an interview Wednesday
with NBC, Chief Justice William H. Rehnquist , an avid poker player, gave an
idea of what he thought.
Asked hypothetically whether he would recuse himself from a case that involved
one of his poker partners, Rehnquist said:
"No. If it were a regular game … and the only occasion on which I saw the person
was at the monthly game, no, I don't think I'd recuse myself."