Wednesday, June 21, 2023

Found The Back Door

There's always a "back door" to these stories. The Lovely Wife works for the Superintendent of the local school district. Every Xmas H‑E‑B sends the Superintendent a huge and delicious coconut cake. The former superintendent refused to take it home for himself, for fear it would give an appearance of impropriety. He would put it in the break room and invite all and sundry to take a piece. Just sayin’… "Federal Jury Practice and Instructions” February 2023? When did this fishing trip occur, again? Methinks the gentleman doth protest too much.

It’s an awful lot of thunder over an article he hadn’t even read yet.  Here’s what the article says:
In early July 2008, Samuel Alito stood on a riverbank in a remote corner of Alaska. The Supreme Court justice was on vacation at a luxury fishing lodge that charged more than $1,000 a day, and after catching a king salmon nearly the size of his leg, Alito posed for a picture. To his left, a man stood beaming: Paul Singer, a hedge fund billionaire who has repeatedly asked the Supreme Court to rule in his favor in high-stakes business disputes. 
Singer was more than a fellow angler. He flew Alito to Alaska on a private jet. If the justice chartered the plane himself, the cost could have exceeded $100,000 one way.
It’s not just a question of “facilities.” And $100,000 is a lot of “hospitality.” And that’s just to get there. What about “there”?
On another day, the group flew on one of the lodge’s bush planes to a waterfall in Katmai National Park, where bears snatch salmon from the water with their teeth. At night, the lodge’s chefs served multicourse meals of Alaskan king crab legs or Kobe filet. On the last evening, a member of Alito’s group bragged that the wine they were drinking cost $1,000 a bottle, one of the lodge’s fishing guides told ProPublica. 
In his op-ed, Alito described the lodge as a “comfortable but rustic facility.” The justice said he does not remember if he was served wine, but if he was, it didn’t cost $1,000 a bottle. (Alito also pointed readers to the lodge’s website. The lodge has been sold since 2008 and is now a more downscale accommodation.
Makes me wonder a bit more about that “2023” citation. Anyway, time to go in the weeds. First Singer bought Argentina debt on the cheap in 2001. When the government and economy recovered years later, Singer sued for full measure rather than pennies on the dollar.
In 2007, for the first but not the last time, Singer’s fund asked the Supreme Court to intervene. A lower court had stopped Singer and another fund from seizing Argentine central bank funds held in the U.S. The investors appealed, but that October, the Supreme Court declined to take up the case. 
On July 8 of the following year, Singer took Alito to Alaska on the private jet, according to emails, flight data from the Federal Aviation Administration and people familiar with the trip. 
The group flew across the country to the town of King Salmon on the Alaska peninsula. They returned to the East Coast three days later. 
In Alaska, they stayed at the King Salmon Lodge, a luxury fishing resort that drew celebrities, wealthy businessmen and sports stars. On July 9, one of the lodge’s pilots flew Alito and other guests around 70 miles to the west to fish the Nushagak River, known for one of the best salmon runs in the world. Snapshots from the trip show Alito in waders and an Indianapolis Grand Prix hat, smiling broadly as he holds his catch. 
“Sam Alito is in the red jacket there,” one lodge worker said, as he narrated an amateur video of the justice on the water. “We take good care of him because he makes all the rules.” 
“The exception only covers food, lodging and entertainment,” said Virginia Canter, a former government ethics lawyer now at the watchdog group CREW. “He’s trying to move away from the plain language of the statute and the regulation.” 
The Alaska vacation was the first time Singer and Alito met, according to a person familiar with the trip. After the trip, the two appeared together at public events. When Alito spoke at the annual dinner of the Federalist Society lawyers convention the following year, the billionaire introduced him. The justice told a story about having an encounter with bears during a fishing trip with Singer, according to the legal blog Above the Law. He recalled asking himself: “Do you really want to go down in history as the first Supreme Court justice to be devoured by a bear?” 
The year after that, in 2010, Alito delivered the keynote speech at a dinner for donors to the Manhattan Institute. Once again, Singer delivered a flattering introduction. “He and his small band of like-minded justices are a critical and much-appreciated bulwark of our freedom,” Singer told the crowd. “Samuel Alito is a model Supreme Court justice.” 
Alito did not disclose the flight or the stay at the fishing lodge in his annual financial disclosures. A federal law passed after Watergate requires federal officials including Supreme Court justices to publicly report most gifts. (The year before, Alito reported getting $500 of Italian food and wine from a friend, noting that his friend was unlikely to “appear before this Court.”)

And the “thoroughness” of the citations is revealing. Especially for what they don’t say:
His op-ed pointed to language in the judiciary’s filing instructions and cited definitions from Black’s Law Dictionary and Webster’s. But he did not make reference to the judiciary’s regulations or the law itself, which experts said both clearly required disclosure for gifts of travel. ProPublica found at least six examples of other federal judges disclosing gifts of private jet travel in recent years.
But...Black’s Law Dictionary…. If you remember the old “Perry Mason” show, you remember the props of “Corpus Juris Secundum.” One of the first things I learned in law school was that those books were virtually useless. Black’s is in that category; good for starting a legal analysis; terrible for ending one. Short version: if you’re relying on Black’s in a legal analysis, you’ve lost. Alito relies heavily on Black’s and on tertiary sources. Notably, he doesn’t cite primary sources, like the law itself.

Maybe he should have read the article before publishing his op-ed. Pro Publica certainly had the advantage of Alito’s op-ed before they published their report.

Singer tried several times to get the Supremes to take his case(s) against Argentina. In 2016, he finally got his hearing, and a victory that eventually netted him $2.4 billion.
Abbe Smith, a law professor at Georgetown who co-wrote a textbook on legal and judicial ethics, said that Alito should have recused himself. If she were representing a client and learned the judge had taken a gift from the party on the other side, Smith said, she would immediately move for recusal. “If I found out after the fact, I’d be outraged on behalf of my client,” she said. “And, frankly, I’d be outraged on behalf of the legal system.” 
The law that governs when justices must recuse themselves from a case sets a high but subjective standard. It requires justices to withdraw from any case when their “impartiality might reasonably be questioned.” But the court allows individual justices to interpret that requirement for themselves. Historically, they’ve almost never explained why they are or are not recusing themselves, and unlike lower court judges, their decisions cannot be appealed. 
Alito articulated his own standard during his Senate confirmation process, writing that he believed in stepping away from cases when “any possible question might arise.”
Can’t help but say $100,000 for the flight alone raises a lot of possible questions.

Or maybe it’s all about politics, rather than ethics:
In his statement, Leo did not address detailed questions about the trip, but he said “no objective and well-informed observer of the judiciary honestly could believe that they decide cases in order to cull favor with friends, or in return for a free plane seat or fishing trip.” He added that the public should wonder whether ProPublica’s coverage is “bait for reeling in more dark money from woke billionaires who want to damage this Supreme Court and remake it into one that will disregard the law by rubber stamping their disordered and highly unpopular cultural preferences.”
Given Alito wrote (and I still say, leaked) the Dobbs decision, one upsetting American politics and likely to be spoken of in the same way as Plessy or Dred Scott, complaining about “highly unpopular cultural preferences” is a bit rich. It’s also very revealing. Leonard Leo championed Alito’s nomination to the Court. He also is the common denominator between Singer and Alito. This story is less about Alito and a fishing trip, and more about how the rich and powerful stay rich and powerful. Read the report; there’s much more to this.

And it’s not like billionaires don’t have several advantages already:
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