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WASHINGTON � former judge, solicitor general and Whitewater independent counsel Kenneth Starr argued a key First Amendment case before the Supreme Court last week, he was there in his capacity as of counsel at the law firm Kirkland & Ellis. But he was also playing a lesser-known role: As dean of the Pepperdine University School of Law, Starr is also the summer employer of two of the justices who heard the case. Justices Antonin Scalia and Samuel Alito will be teaching courses for the law school’s summer programs � Scalia for two days in London and Alito for two weeks in Malibu, university officials have confirmed. Typically, the justices are paid several thousand dollars for teaching stints like these, representing one of the few opportunities justices have to make outside income. The juxtaposition of Starr as advocate and Starr as employer has surprised Starr’s adversaries in the case before the court, Morse v. Frederick. Starr represents, on a pro bono basis, high school principal Deborah Morse, who suspended student Joseph Frederick for displaying a banner with the message “BONG HITS 4 JESUS” across the street from the high school in Juneau, Alaska, during the Olympic torch run in 2002. Starr began representing the principal in May 2006 and began filing papers with the high court in the case in June, before the Pepperdine arrangements with Scalia and Alito were made. Alaska attorney Douglas Mertz, who argued on behalf of the student against Starr last week, declined to comment on Sunday. Mark Goodman, director of the Student Press Law Center, which filed a brief on the side of the student, says the justices’ employment by Pepperdine “certainly raises questions about the appearance of conflict.” Two judicial ethics experts contacted by Legal Times, however, say the facts are not grounds for recusal. The justices declined to comment for this story. Lyric Hassler, a spokeswoman for Pepperdine Law, says of Starr’s appearance before the court and the justices’ employment by Pepperdine, “I don’t know that these things can be related at all. It’s no secret that Dean Starr and these justices are close personal friends. Their associations are from way back.” Hassler referred questions for Starr to Shelley Saxer, associate dean for academics. Saxer says Alito’s engagement came about as a result of a visit he made to the school last October. Professor Douglas Kmiec, a longtime friend of Alito’s from their Justice Department days, suggested teaching the course, says Saxer, and Alito agreed to teach a two-week class on constitutional law. Scalia’s summer employment was also negotiated last fall but came about in a different way, Saxer says. Scalia called Pepperdine to say he would be in London that summer and wondered if the school would be interested in having him teach in its program there. To accommodate Scalia’s schedule, Saxer says, the London program is being extended for a week. Scalia will teach for two days on the separation of powers and federalism. Saxer says Starr as dean signed off on the employment of both justices. “He said, ‘Great, let’s do it,’” Saxer recalls. She declined to state how much the justices will be paid, though the amount is likely to be disclosed in the justices’ financial disclosure forms next year. When asked if she sees any ethical concerns with the justices’ teaching given Starr’s role as an advocate last week, Saxer says, “Law schools are trying to bring out Supreme Court justices all the time.” “To me, it was, ‘Wow, this is great.’ I hadn’t thought about [any potential conflicts],’” Saxer says. But she acknowledges, “There aren’t a lot of deans who are arguing cases before the Supreme Court.” Kmiec says he, not Starr, had arranged for both justices to teach at Pepperdine. “Pepperdine is, of course, the host or employer of both justices,” Kmiec adds. “To my knowledge, Pepperdine has no interest in the Morse case beyond the academic and has not filed any pleading in the matter.” Kmiec also notes that in the filings in the case, Starr listed Kirkland & Ellis, not Pepperdine, as his affiliation. Hassler stresses that Starr is careful to keep his role as dean separate from his work at Kirkland. “Those worlds don’t collide,” she says. In years past, justices’ outside employment and travel have influenced their participation in cases. For several years, Scalia recused himself from hearing cases in which Tulane University was a party because he taught in the law school’s summer programs. In 2002, he recused in a case in which one of the parties was the Republic of Croatia, which had reimbursed him for a trip there not long before. To be sure, Pepperdine was not a party in the case argued March 19. But the fact that Starr, as the school’s dean, approved the employment of Scalia and Alito may place the situation in a different category than if, say, an associate professor at Pepperdine had argued the case. One judicial ethics expert points to a 1985 decision by Judge Richard Posner of the Seventh Circuit U.S Court of Appeals ordering a federal trial judge to recuse in a pending trial because a headhunter working on the judge’s behalf had contacted law firms that were appearing before him. “The appearance of equal justice requires that the judge not be exploring the prospects of employment with one lawyer or all lawyers appearing in a case before him,” Posner wrote in the case PepsiCo v. McMillen. “The dignity and independence of the judiciary are diminished when the judge comes before the lawyers in the case in the role of a suppliant for employment.” New York University School of Law professor Stephen Gillers, a judicial ethics expert, says: “As a general rule, of course, a judge should not accept a benefit from a lawyer with a matter before the judge. Teaching in the Pepperdine summer program may at first blush be seen as such a benefit. Justice Scalia gets a trip to London; Justice Alito gets to spend two weeks in Malibu.” But, Gillers continues, “Pepperdine is really the beneficiary here. Having justices teach in a law school’s summer program is much more a benefit to the school than the justice. If it were not Pepperdine, it could easily be some other school.” Gillers adds, “Both justices are friends of Starr. If someone were to worry about favoritism or bias, friendship would seem the place to begin, but friendship is insufficient to disqualify a judge. I assume, indeed, that many lawyers who argue before the court have friendships with various justices.” Hofstra University judicial ethics expert Monroe Freedman, typically a hardliner on recusal questions, says this one is “a stretch,” involving “one of those unwritten exceptions” to the judicial codes of conduct. Unlike European judges who train separately from lawyers, Freedman explains, U.S. judges often come from the private bar and have frequent contacts with law schools. To interpret ethics rules in a way that would force judges to disengage from those connections would be “impracticable,” Freedman says. But another judicial ethics expert, who asked not to be named, views the same facts differently: “It illustrates the clubbiness of the upper reaches of the Washington legal establishment.” Tony Mauro is the U.S. Supreme Court correspondent for Legal Times, a Recorder affiliate based in Washington, D.C. His e-mail address is [email protected].

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