- The Washington Times - Monday, July 1, 2002

Two liberal advocacy groups and the American Bar Association have been accused in court memos of colluding to write ethical rules regulating judicial travel that would have derailed one of President Bush's appeals court nominees.
The advocacy groups are leading the opposition to the nomination of District Judge D. Brooks Smith to the 3rd Circuit Court of Appeals in Philadelphia for taking privately funded judicial training trips.
Judge Smith was approved in committee, and his confirmation awaits a final Senate vote.
According to memos from the director of the Administrative Office of the U.S. Courts, the Community Rights Counsel and the Alliance for Justice "secretly" worked with the American Bar Association (ABA) to draft new rules that are already under criticism from the judicial community.
The memos from Leonidas Ralph Mecham were obtained by The Washington Times.
"An undisputed central fact is that the ABA Ethics Committee jumped into a highly charged political area on its own volition without disclosing any reasons for doing so," Mr. Mecham said in a June 21 letter to Marvin L. Karp, chairman of the ABA Standing Committee on Ethics and Professional Responsibility.
A Republican source close to the nomination proceedings says Democrats tried to kill the nomination before the committee vote.
A Democratic staffer on the Senate Judiciary Committee contacted the ABA and requested the ethics rule be put into effect by May 1, the Republican source said.
The committee confirmed Judge Smith on May 23 by a vote of 12 to 7.
"You can see the obvious attempt was to get this done in time before the vote and then say [Judge Smith] violated these rules," the source says. "It clearly failed."
In a June 6 memo to U.S. Supreme Court Chief Justice William H. Rehnquist, Mr. Mecham said he had been "advised that the ABA Ethics Committee is relying almost entirely upon Doug Kendall," director of the Community Rights Counsel, to issue the new rule.
"This is surprising since the counsel has a very clear-cut philosophical and economic agenda, seeking to advance the interests of its financial contributors who are largely unknown to the Ethics Committee," Mr. Mecham said.
The Community Rights Counsel is a law firm formed in 1997 to work for regulating land use in the name of protecting health and welfare.
Mr. Karp, in a June 18 response to Mr. Mecham, called them the "baseless charges" that had "needlessly alarmed many federal judges."
"I am told that Mr. Kendall has made telephone inquiries as to whether the committee was working on an opinion in this area and, if so, what the likely timetable would be," he said. "However, absolutely no discussions took place as to substance."
"This opinion would apply prospectively and would have nothing to do with any past conduct by any judges."
In the summer edition of the Judicial Division Record, Judge James G. Glazebrook called the ABA process in this instance a "rushed and secret consideration of a politically sensitive issue without broader discussion and input from many organizations that have thought long and hard about the propriety of such a rule."
"Doug Kendall, the executive director of CRC and Nan Aron, the executive director of the Alliance for Justice, have been monitoring the status of the draft ethics opinion, and counsel for the Ethics Committee has kept them advised of its progress," Judge Glazebrook said.
By restricting travel and attendance at educational seminars, the organizations hope to keep judges from attending events hosted by sponsors they perceive as having a pro-market, pro-development, anti-regulation stance on environmental issues, Judge Glazebrook said.
Judge Smith was criticized during his committee hearings for attending so-called "corporate-funded junkets."
Sen. Orrin G. Hatch, Utah Republican and ranking member of the Judiciary Committee, said the privilege should be permitted.
"They need to get off the bench once in a while. They need to get out and be in the real world other than the real world of the courtroom, and I think it just broadens their ability to do their job," Mr. Hatch said.
"I get a little tired of people around here presuming that everybody is dishonest. Judges are not. They are high-quality individuals. Even to get there, they have got to be very, very good," Mr. Hatch said. "And for them to have seminars to go to that's important and they should be able to do that."


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