Return to First Principles by STEVE FRIAS

Opening the revolving door to the Supreme Court

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Recently, Sen. Erin Lynch Prata announced she is seeking a R.I. Supreme Court judgeship.

State law and an Ethics Commission regulation prohibit legislators from seeking or being appointed to a judgeship until they have been out of office for one year. Lynch Prata claims there is an exception to revolving door ban for “seeking or being elected for any other constitutional office.” However, Supreme Court justices are not elected by the public, and since 1994, they are not elected by the Grand Committee (the Senate and House meeting as one body and voting jointly). Instead, Supreme Court justices are nominated by the governor and confirmed by the Senate and House of Representatives separately.

Lynch Prata ignores the law’s wording and the history surrounding it. Her appointment would represent a partial return to the scandalous judicial selection politics of an earlier era.

Justice Oliver Wendell Holmes Jr. opined that “a page of history is worth a volume of logic.” This is true for the revolving door law. From 1985 to 1994, scandals engulfed Rhode Island. For example, in 1986, Chief Justice Joseph Bevilacqua resigned because of his connections to organized crime. As House Speaker, Bevilacqua had engineered his own election to the Court.

In 1991, the Ethics Commission adopted a regulation prohibiting legislators from seeking or accepting state jobs, including judgeships, until a year after they left office. Although Gov. Bruce Sundlun questioned the Ethics Commission’s authority, the Supreme Court upheld it.

This changed State House political calculations dramatically. Previously, the House had passed a revolving door ban that exempted judgeships. After the Supreme Court decision in June 1992, the Senate passed a revolving door ban which prohibited legislators from seeking judgeships. In response, the House passed a bill nearly identical to the Senate bill, but it exempted elected officials seeking election to a constitutional office. House Judiciary Chairman Jeffrey Teitz explained to Phil West, the Common Cause lobbyist, that “getting a job through election is categorically different from a revolving door appointment.” The bill became law.

The controversy was not over. When a Supreme Court vacancy arose, Teitz now interpreted the exemption in the revolving door law as permitting legislators to become Supreme Court justices because justices were elected by the Grand Committee. Senate Judiciary Chairman Thomas Lynch said it was “an open question.” Senate Majority Leader John Bevilacqua declared that “it would fly in the face of the ethics reform everyone just supported.” Ethics Commissioner Mel Topf threatened to file a complaint. When the Grand Committee subsequently met to fill the vacancy, no sitting legislator or anyone who had been a legislator within the past year was nominated.

Meanwhile, although Sundlun had signed the revolving door law, after he was reelected, he challenged it. The Supreme Court determined it was valid. The Court interpreted the exemption for seeking a constitutional office and concluded that “public positions to which the revolving-door legislation applies are appointed positions or are positions elected from a state … governing body. They are not positions that are elected by the general electorate.”

In Rhode Island history, the pace of government reform is usually set by the speed at which scandalous behavior is exposed. While the Court was interpreting ethics laws, it was being rocked by an ethics scandal. In 1993, Chief Justice Thomas Fay and former House Speaker Matthew Smith were enveloped in scandal and resigned. A merit-based judicial selection constitutional amendment was adopted in 1994, which eliminated the Grand Committee election for Supreme Court justices. With that, any interpretation that the revolving door law permitted legislators to seek to be elected to the Supreme Court was eliminated. For the last quarter-century, during which eight Supreme Court vacancies occurred, no sitting legislator sought a Supreme Court judgeship.

The revolving door prohibition has had a beneficial impact. Since 1993, the Rhode Island judiciary has avoided an ethics scandal. Judgeships are now held by fewer former legislators. In 1992, all five Supreme Court justices were former legislators. Four had gone from the legislature directly to a judgeship and the other justice had gone from the legislature to the governor’s office and then to the bench. Now, there are only two Supreme Court justices who are former legislators.Although politics undoubtedly plays a role in picking judges, the revolving door ban hinders legislators from trading their votes to gain a judgeship for themselves. The R.I. Supreme Court explained that the “revolving-door legislation addresses the imbroglio of public officials who use their present positions and contacts as unfair bargaining tactics in gaining future employment.” Also, Stephen Carlotti, chairman of the Judicial Nominating Commission, emphasized that with the revolving door rule “we solved a multitude of problems. There is no person more powerless than a former office holder. No one has to pay any attention to a former Speaker of the House.”

Rhode Island history is rich with scandals over the unseemly scramble for spoils in which sitting legislators go through the revolving door to the bench. Perhaps the most blatant example of a legislator using his office to get a judgeship involved Chief Justice Edmund Flynn. In 1935, Democrats devised a plan to seize control of state government. But the plan almost went awry when House Majority Leader Flynn insisted on being made Chief Justice.

Flynn “let it be known that unless he were made Chief Justice, there would be a great deal trouble pushing the Governor’s contemplated reforms through the House of Representatives.” One administration official stated: “He held a gun to our heads.”

Flynn was given the spot. The most important political event in 20th century Rhode Island history only went forward after a legislator was given a judgeship. The revolving door ban prevents this sort of unethical conduct from happening again. Rhode Island history records House Speaker Joseph Bevilacqua as the last sitting legislator to go directly to the Supreme Court. He should remain the last.

This is not about preventing Lynch Prata from ever becoming a judge. This is not about the qualities or qualifications of Lynch Prata to be a judge. This is about requiring all legislators to follow an ethical requirement – the revolving door ban. If Lynch Prata is permitted to seek and be appointed to the Supreme Court, legislators who are more powerful and less principled than her, more questionable and less qualified than her will seek a seat on the Supreme Court in the future.

In recent years, Rhode Island has seen powerful legislators, who were attorneys, engage in unethical conduct. If the revolving door to the Supreme Court is open to these type of legislators, one can imagine the type of unethical lengths they would go to secure themselves a position at the Supreme Court if they wanted it.

Furthermore, once the law is interpreted to permit sitting legislators to seek a Supreme Court appointment, undoubtedly other legislators will seek to extend that interpretation to other courts. The more often the revolving door swings open for legislators, the more likely the trading of votes for judgeships will creep back into the legislature.

Rhode Island cannot move forward by going backwards on ethics. The ambitions of one State House politician should not be allowed to undo the accomplishments of a generation of reformers.

Steven Frias is Rhode Island’s Republican National Committeeman, a historian, and recipient of The Coolidge Prize for Journalism.

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