Today, Supreme Court Justice Neil Gorsuch is the headliner at a meeting of the Federalist Society. This should not be big news. Supreme Court justices of all ideological stripes have given the keynote speech a Federalist Society meetings.
Justice Elena Kagan, who was nominated by President Barack Obama in 2010, spoke at a Federalist Society event in 2005 and during her remarks reportedly said, “I love the Federalist Society.”
Justice Sonia Sotomayor, nominated by Obama in 2009, addressed a meeting of the Federalist Society that year.
Justices Stephen Breyer, Anthony Kennedy, and Ruth Bader Ginsburg have all addressed Federalist Society meetings, as have Justices Clarence Thomas, Samuel Alito, and John Roberts.
This year it is a scandal, or so I’m told, because the Federalist Society chose Trump International Hotel as its venue. This, via the improbably named ThinkProgress, is a sample:
On Thursday, Gorsuch will speak to a conservative group at Trump’s D.C. hotel. By headlining this event, Gorsuch will personally enrich the very man who appointed him to his lofty position. And he will enable the very mechanism that allows Trump to profit off the presidency. It is unlikely, to say the least, that conservative groups favor Trump’s hotel as a venue because they are fond of its $24 cocktails.
Then, in November, the tour will resume when Gorsuch keynotes the Federalist Society’s annual lawyer’s conference — the same conservative legal group that Trump relied on to pick Gorsuch in the first place.
Neil Gorsuch knows where his bread is buttered. And he rewards his friends.
The ethical implications of some of these events are uncertain. Gorsuch’s speech to the Federalist Society is fairly ordinary — judges often speak to this particular organization. The speech at the Trump Hotel, by contrast, drew concerns from multiple experts on legal ethics, many of whom are academics with no direct stake in Gorsuch’s behavior.
But even if Gorsuch’s actions don’t violate any explicit prohibition, they are certainly bizarre. Judges typically do not spend their early months on the bench conspicuously doing favors for the political actors who helped place them there. As the Atlantic’s Garrett Epps writes, “having decided to accept a nomination so befouled by politics, Gorsuch might have displayed a sense of humility.” Instead, “he will not even pretend to care about how the losers in the process see either him, or the Court.”
Reminder: Neil Gorsuch just gave one of his 1st speeches since joining SCOTUS at the Trump Int'l Hotel in DC. https://t.co/VgKMXnmGjf
— Kyle Griffin (@kylegriffin1) September 28, 2017
— Scott Dworkin (@funder) September 27, 2017
Morning: Supreme Crt agrees to hear case that wld cripple public unions
Lunchtime: Gorsuch talks to group funded by same ppl funding case
— Noam Scheiber (@noamscheiber) September 28, 2017
— NARAL (@NARAL) September 28, 2017
When the GOP stole @BarackObama's SCOTUS seat & forced Gorsuch through the Senate, they knew their investment would pay off. Today it has.
— Elizabeth Warren (@SenWarren) September 28, 2017
This is nonsense. If it is ethically permissible for Gorsuch to speak before the Federalist Society, it is ethically permissible for him to speak before them at the Trump International. Of course, you’ll find the loudest voices decrying it are hardcore partisan hacks, like the SPLC and Elizabeth Warren, and hardcore Trump haters. Actual authorities on the subject aren’t.
But Steven Lubet, an ethics scholar at Northwestern’s Pritzker School of Law, wrote on a professional blog that he was not concerned.
“Any relationship between a single event and the Emoluments Clause litigation is far too tenuous to implicate Gorsuch’s impartiality,” Lubet wrote.
Jonathan Adler, a Case Western University law professor who wrote a column in The Washington Post defending Gorsuch’s speech at the hotel, said the new justice’s appearances fit well within the standards set by others, including the court’s liberals.
“Is this any different from speeches and events Justice [Ruth Bader] Ginsburg attends on a regular basis?” Adler asked in an interview with The Post, adding that Gorsuch’s schedule “might be a little unusual for a new justice, but I don’t think that’s out of order.”
This craziness is just the new normal and we’ll have to live with it.