June 23, 2005, 7:55 a.m.
Junkets for Judges
Contrary to critics’ beliefs, privately sponsored judicial conferences broaden judges’ minds.

For the past several years, a small environmental group called Community Rights Counsel (CRC) has been waging a not-so-quiet war against privately funded educational seminars for judges. According to CRC, exposing federal judges to aspects of economic analysis and critical perspectives on environmental policy threatens the integrity of the judicial system. CRC made this charge in numerous reports and essays, and vigorously shopped the story to major press outlets. Most recently, CRC even filed ethics complaints against four federal judges for their involvement with a seminar sponsor. This month, however, CRC's campaign suffered a major, and well-deserved, setback when a federal judge dismissed its ethics complaint against the Danny J. Boggs, chief judge of the U.S. Court of Appeals for the Sixth Circuit.

CRC's primary argument has been that allowing judges to attend privately funded educational seminars undermines the appearance of impartiality on the federal judiciary. Since 1998, CRC has waged an unrelenting public relations assault on judges who have attended seminars sponsored by the Foundation for Research on Economics and the Environment (FREE), the Law and Economics Center at George Mason University, and Liberty Fund, suggesting such programs either bribe or brainwash federal judges. (See here.) "Each year dozens of federal judges were being wined, dined, and indoctrinated at anti-environmental 'junkets for judges,'" CRC charges on its website. These seminars, CRC claims, are "breeding grounds" for anti-environmental "judicial activism." On these grounds, CRC has sought to prohibit federal judges from attending such expense-paid events.

Through a series of very misleading reports and publicity blitzes, CRC has been highly successful at having its message repeated in the mainstream press — creating the very appearance of impropriety that CRC now uses to argue judges should not be allowed to attend these seminars. Yet the frequency with which the charges are repeated does not make them any more accurate: Some of the charges are simply laughable. For example, CRC suggested a federal judge's opinion in a high-profile environmental case was the result of attending a FREE conference — even though the opinion was issued months before the conference in question. CRC also suggested that a judge skewed her decision in a case two years after attending a conference — and another one she went to shortly thereafter created a bad impression, because an amicus in the case received funding from foundations that have also given money to FREE. According to CRC's logic, this guilt by association creates a conflict of interests.

Those who have attended FREE conferences have a difficult time recognizing the sinister brainwashing sessions portrayed in CRC's materials. "I have participated in 168 hours of lectures and discussion at FREE and have never witnessed anything that an observer could interpret as remotely corresponding to that characterization," wrote noted economist Thomas Schelling earlier this year.

Another federal judge called the seminars "the most cogent, informative learning experiences in environmental law and policy offered to federal judges." An independent review conducted by two former U.S. Attorneys who served under President Clinton likewise concluded that the seminars present "a varied, balanced, intellectually challenging and rigorous series of educational opportunities" that are "valuable" for the participants.

I have personal experience with FREE conferences, having attended several as a lecturer and as a participant. There was a wide diversity of views among both the speakers and the participants, and former officials from both Democratic and Republican administrations lectured, as did judges, academics, scientists, and environmental advocates. The lengthy discussion periods were spirited and thoughtful — so much so that if these conferences were designed to "indoctrinate" judges (and law professors, who also attended) they certainly failed. Indeed, if federal judges — who spend their entire careers listening to persuasive arguments by individuals paid substantial sums to change the judges' opinions — are so easily swayed, these sorts of judicial conferences are the least of our worries.

CRC has No "Factual Foundation"

Privately funded, non-government educational seminars are nothing new, and judicial participation in such conferences has been repeatedly reviewed and approved. In one advisory opinion, the U.S. Judicial Conference Codes of Conduct Committee stressed that "the education of judges in various academic disciplines serves the public interest." The fact that a given lecture or program stresses "a particular viewpoint or school of thought" is not a problem, as "judges are continually exposed to competing views and arguments and are trained to weigh them." Of course, it's not just any privately funded seminars that attract CRC's ire: They've been remarkably silent about other seminars sponsored by universities or organizations like the Aspen Institute and the Ford Foundation, leading some to suspect that CRC's real objection is to exposing judges to views with which CRC disagrees.

CRC's latest attack is personal: It filed ethics complaints against four federal judges who had agreed to serve on FREE's board of directors to assist in the development of programming and outreach to federal judges. Three of the four judges quickly resigned rather than fight CRC's allegations. As Judge Douglas H. Ginsburg explained, "I am not in a position to constantly be correcting the false impressions and calumnies that appear in the press."

Danny J. Boggs, chief judge of the Sixth Circuit Court of Appeals did not resign, however, stating he would be "happy to abide" by any judicial ruling on the complaint. That ruling came on June 1, when Judge James Loken dismissed CRC's complaint. According to Judge Loken, "the fact that many have criticized privately sponsored judicial education does not make it unethical for a judge to support the concept and to participate in organizations that sponsor bona fide educational programs." Judge Loken specifically concluded that many of CRC's allegations lacked "factual foundation." More pointedly, Judge Loken wrote that CRC's allegations "typify the character assassination that is all too common in our Nation's Capital, much of it intended to further the accuser's legislative agenda."

Unwilling to give up, CRC responded to the ruling with a letter to Justice Stephen Breyer alleging that Judge Loken's dismissal of its complaint proves that the judicial ethics process is broken. Ironically, Justice Breyer is himself the author of a book on environmental regulation, Breaking the Vicious Circle, that advocates many of the policy views that CRC claims FREE seeks to indoctrinate in judges.

For a time it appeared that CRC's initial campaign might be successful. The high-profile press reports and subsequent congressional inquiries into judicial conferences discouraged some judges from attending non-government seminars — which represent a large share of judges' educational opportunities. With the dismissal of CRC's complaint, that trend may now reverse, which is all to the good. Intellectually stimulating judicial education programs can only serve to improve the quality of judges on the bench. As the late judge Richard S. Arnold noted, attending an educational seminar "may never help me decide a specific case, but it will broaden the minds of all those that heard it, and that's more important."

— NRO Contributing Editor Jonathan H. Adler is associate professor and associate director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.

*   *   *

YOU’RE NOT A SUBSCRIBER TO NATIONAL REVIEW? Sign up right now! It’s easy: Subscribe to National Review here, or to the digital version of the magazine here. You can even order a subscription as a gift: print or digital!