An Arizona Supreme Court justice defended himself August 20 from a storm of criticism after being spotted at a conference known to push conservative legislation.
Gov. Doug Ducey tweeted a photo on August 15 showing him with Justice Clint Bolick and his legislator wife, Shawnna Bolick, R-Phoenix, at a conference held by the American Legislative Exchange Council, or ALEC, in Austin, Texas.
While Bolick did not actually attend the conference, he did attend a dinner with his wife.
The justice said he attended the ALEC dinner as his wife’s guest, but acknowledged that ALEC paid for his meal.
“Nothing at the dinner would remotely compromise my impartiality or create a reasonable appearance otherwise,” Clint Bolick said.
Critics jumped on the tweet, questioning whether Clint Bolick’s appearance there – albeit with his wife – and at a separate event hosted by school choice advocates in Austin, was a conflict.
Chris Herstam, a political consultant who left the GOP a few years ago, threw the first stone.
“I never thought I’d see a sitting AZ Supreme Court Justice standing w/his GOP legislator wife & the gov. who appointed him at an ALEC annual meeting. ALEC & the wife write the laws, Ducey signs them into law & Bolick rules on them. Something is very wrong with this picture,” Herstam tweeted, receiving more than 170 retweets and 300 likes.
Several responses poured in, including one from Brian Garcia, a law student who worked for U.S. Sen. Kyrsten Sinema when she was in the U.S. House. He tweeted that Bolick’s duty to avoid the appearance of impropriety “goes out the window.”
Bolick said there was nothing improper about his talk at a school-choice education forum billed as “A Conversation with Justice Bolick,” which focused on experiences and strategies regarding litigating school choice cases leading up to a 2002 U.S. Supreme Court case stemming from a school choice debacle in Ohio.
“I was also asked about my transition from public interest law to the bench, my judicial retention election, the comparison of judicial elections in Texas and Arizona, and my tattoo,” Bolick said, referring to the scorpion tattoo he has on his finger.
He said judges give talks at events like that all the time.
“My colleagues and I all speak frequently at public forums and attend conferences at which positions are argued or taken on public policy or legal issues, including state bar functions, the State of the State speech, community forums, and even our annual judicial conference,” Bolick said in an email
U.S. Supreme Court justices also tend to abide by the same practices, he said.
“We are all mindful of our ethical responsibilities and can separate what we hear in a public forum from our duty to decide cases impartially,” he said, adding that as long as they don’t comment on legal issues that are likely to appear before them on the court, or express views on their ongoing cases, they’re not breaking any rules or endangering their neutrality.
The Judicial Code of Conduct states that a judge shall not be swayed by partisan interests; shall uphold independence of the judiciary; shall avoid impropriety and the appearance of impropriety; shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary; and a judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.
ALEC is partially funded by the Koch Brothers and its conference is held for conservative state legislators to coach them into pushing model conservative bills.
Mark Harrison, an attorney who specializes in attorney ethics, said the mere attendance at the ALEC conference is not a violation of the Judicial Code of Conduct unless the justice expressed views or participated in activities.
This isn’t the first instance that accusations of breaking that clause of the code of ethics have been levied against Bolick. It was a common critique of his political behavior when he texted Ducey to name Bill Montgomery as John McCain’s replacement in the Senate last year.