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Calling this an ethics scandal misses the point.
There’s no need for me to gild the lily in terms of debunking the justice’s textualist reading of the relevant disclosure provisions, as others have ably rebutted Alito’s prebuttal since it surfaced. If Leonard Leo’s risible “he’s a stand-up guy with unimpeachable integrity and nothing but nothing can influence him” defense were a real defense, nobody would need to follow ethics and anticorruption rules, ever. They could just be honorable. Same with the “but here’s a time he didn’t do what Paul Singer wanted” defense, which is Dr.-Pepper-out-your-nose funny, but not a defense. I won’t waste your time or mine on the this-is-all-just-a-“liberal-smear” defense, because it’s boring.
The problem with continuing to frame the Harlan Crow/Barre Seid/Paul Singer stories as “ethics” issues is that we tend to think of “ethics” scandals in league with failures to use the correct shrimp fork. This is kind of what happened when we framed the great pay-to-play Supreme Court Historical Society caper that permitted one couple, the Wrights, to purchase access to the Alitos and the Scalias for the price of $125,000, as a “leak” story. We keep centering the justices and their “ethics” misfires at the expense of the real grifting here: Billionaires being assigned, like something out of the Big Brothers program, to individual justices for the purposes of lavish gift giving and influence.
Look again at ProPublica’s photos of Paul Singer, Antonin Scalia, Leonard Leo, and Samuel Alito and the Big Shiny Fishes they netted. If you think the fish is the trophy in this picture, you’re making a galactic-category error. The trophy is the justice. The vital question here is not why did Justice Alito agree to take the trip, because the trip sounds quite awesome. The question is why did Leo pick him to go, empty seat on the private jet notwithstanding, and why was building a friendship with someone who was in the literal business of reshaping the court to favor his own business so urgently necessary?
As professor Steven Lubet points out, no justice wants to believe him- or herself to be a large salmon: “Justices would surely deny any such subtle influences, sincerely insisting that their judgment could never be affected by the generosity of their well-heeled friends.” But, as Lubet continues, “social science research has determined that the receipt of gifts can powerfully sway later decisions, often in ways unrealized by the recipients.” Research he cites shows that simply receiving a pen was associated with physicians’ increased prescription of a pharmaceutical company’s brand-name medication.
So long as we continue to think of Alito’s and Thomas’ failures to disclose expensive gifts in terms of ethical lapses, the focus stays on them. Look again at Harlan Crow’s now-infamous dogs-playing-poker portrait of himself, Leo, Mark Paoletta, and Clarence Thomas, smoking and Adirondacking, and not talking about anything that might come up before the court, ever. Why is Harlan Crow having that moment commemorated for all time in oils? A #protip that will no doubt make those justices who have been lured away to elaborate bear hunts and deer hunts and rabbit hunts and salmon hunts by wealthy oligarchs feel a bit sad: If your close personal friends who only just met you after you came onto the courts are memorializing your time together for posterity, there’s a decent chance you are, in fact, the thing being hunted.
Let me say it again, because it’s important: Justices and judges and all public servants are human beings who deserve to have friendships and love lives and families and cocktail parties and awards dinners and book clubs and fight clubs as they see fit. But the presumption that when other people seek access to public figures, they are currying favor and influence, but when they seek access to you, it’s because you’re just generally outstanding, well this formulation of facts cannot become the basis of recusal rules, or disclosure statutes, or your sense of self-worth in this world. And if you do the simple thing required of you, which is to disclose that it happened? The worst thing that would result is a clerk suggesting years later that you perhaps recuse yourself from hearing the case.
Finally, when the people mounting the most spirited defenses of your honor and integrity are the same exact folks who have been rendered in oils sitting next to you, well, let’s just ask ourselves whether they are indeed the objective finders of fact they purport to be. If it’s a contest between the objective good judgement of influence-seekers, or the many, many, many ethics experts who have weighed in to say that trips like this one are not OK, and they must be reported, and that recusal would be proper, I think I’m going with the experts, and not the guy who has the head of a powerful person more or less mounted on his wall.
Nobody in this world enjoys hearing that they are the salmon. But that is why we don’t allow the salmon be the sole arbiter of whether they are the salmon. Let’s please stop framing this issue in terms of “ethics” and “friendships” and “honor.” It is a big-game safari for access to powerful people, and this game has been played since power was first invented. Naming this as an influence scheme clarifies the rules and it clarifies the stakes, and most of all, it clarifies the stench.
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