In August 2004, according to this article in the liberal New Yorker, “a clandestine summit meeting took place at the Aspen Institute, in Colorado’s Rocky Mountains. The participants, all Democrats, were sworn to secrecy” and included five billionaires who “shared a common goal: to use their fortunes to engineer the defeat of President George W. Bush in the 2004 election.” The wealthiest of these “hard-core partisans” was George Soros, who had been a “leading crusader for campaign-finance reform.”
Soros, through his Open Society Institute, provides support for the Aspen Institute, which runs various activities in support of its stated mission of “foster[ing] enlightened leadership and open-minded dialogue.” Among these activities are its “Justice and Society Seminars
,” which often have federal judges as participants. The Aspen Institute has waived the steep seminar fee (currently up to $6,950) for participating federal judges, and also has covered their expenses for travel, lodging, and meals.
Soros has also been a major funder of the Community Rights Counsel, a left-wing “public interest law firm.” In addition to its activist litigation efforts, the Community Rights Counsel has been the most vocal opponent of educational seminars for judges operated by anyone other than federal bureaucrats or bar associations. Soros’s left hand apparently knows what his other left hand is doing: The Community Rights Counsel has not criticized the Aspen Institute’s seminars for judges. Instead, one of its primary targets has been the academic programs in economics, philosophy, and history offered by the George Mason University Law and Economics Center.
In a recent defense of this disparate treatment, Douglas Kendall, executive director of the Community Rights Counsel, asserted that the Aspen Institute has “a much more balanced profile” than George Mason does. That claim of balance would seem belied by the Aspen Institute’s own list of past moderators of its seminars: “U.S. Supreme Court Justices Harry A. Blackmun, William J. Brennan, Jr., John Paul Stevens, and Ruth Bader Ginsburg; Judges Rosemary Barkett, William Fletcher, Abner Mikva, Jon Newman, and Myron Thompson; Dean Kathleen Sullivan, and Professors Peter Edelman, Louis Henkin, Harold Koh, Burt Neuborne, and Michael Sandel.” In any event, the relevant distinctions between George Mason and the Aspen Institute cut precisely in the opposite direction — in George Mason’s favor. Consider:
1. George Mason is part of an accredited university — indeed, a public university. The Aspen Institute is not.
2. George Mason’s programs, which, along with its reading lists, are posted on its website, have distinguished lecturers and are nonpartisan and academically intensive. (A five-day program typically involves 21 hours of class time, and participants are assigned hundreds of pages of difficult reading.) The quality and integrity of its programs are amply attested by the fact that, this year alone, three federal courts of appeals and nine state court systems have enlisted George Mason to provide the academic content for their annual conferences. It is far less clear that the Aspen Institute’s seminars meet the same very high standard. Compare, for example, George Mason’s program on “Origins of the American Revolution” with Gordon Wood to, say, the Aspen Institute’s seminar on “Gender and Justice” and instructors (or, rather, mere “moderators”) like Judge Barkett.
3. No representatives of corporations or of other special interests attend the George Mason programs. It appears that anyone willing to pay the steep seminar fee might find himself rubbing shoulders with judges at the Aspen Institute seminars.
4. George Mason does not provide any entertainment or recreation at its programs. The Aspen Institute trumpets: “Participants can relax and enjoy Aspen[’]s beautiful setting in the Rocky Mountains, work out in the well[-]equipped health center, or join in afternoon activities such as white-water rafting, hiking, tennis and horseback riding. Evening activities include The Aspen Music Festival, BalletAspen, public lectures, and films.”
5. Although ethics rules would permit it, George Mason does not reimburse the expenses of accompanying spouses. According to a Community Rights Counsel’s database, the Aspen Institute apparently has done so.
Last month, responding to concerns about possible conflicts of interest, the Judicial Conference of the United States — the body of judges that sets administrative policies for the federal courts — adopted a policy that effectively requires that entities like George Mason and the Aspen Institute that provide free educational seminars to federal judges disclose their sources of funding. On the sensible premise that judges who did not know the identity of its supporters could not be partial to them, George Mason had previously kept its sources of support confidential. But upon the Judicial Conference’s adoption of the new policy, George Mason immediately disclosed its donors on its website.
Support from corporations and corporate foundations accounted for less than 10 percent of George Mason’s budget for its most recent fiscal year, and no corporation or corporate foundation accounted for more than 2 percent of its budget. In addition, no support is earmarked for particular programs. The list of donors also reveals a striking fact: Of the thirty or so federal judges who made donations to George Mason, at least a dozen were appointees of Democratic presidents. That fact provides further refutation of the Community Rights Counsel’s tendentious slandering of the George Mason programs as ideologically biased.
The Aspen Institute’s annual report lists its many supporters, including over 150 corporations. So far as I could discern, its website does not make clear whether and to what extent any corporations or other special interests provide support for specific seminars that include judges.
For the Community Rights Counsel’s Kendall, the Judicial Conference’s new disclosure policy doesn’t go far enough. Kendall supports a pending bill, introduced by Senator Leahy, that would end the George Mason programs. Kendall has slyly left the impression that the legislation would likewise bar federal judges from taking part, gratis, in Aspen Institute seminars. But in fact the Leahy bill appears to have been drafted — or, rather, gerrymandered — to punish George Mason and to spare the Aspen Institute. In a bizarre exception to the prohibition that it would impose, the bill would permit judges to take part in a “private judicial seminar” if the judge is a “panel participant” — the Aspen Institute’s seminars are “roundtable sessions” — and if federal judges are “not the primary audience at the private judicial seminar.” In other words, the less likely it is that judges are actually learning something, and the more they’re mixing with potential litigants, the more they can avail themselves of the Leahy bill’s exception.
It would be interesting to discover what role Kendall had in drafting Leahy’s bill. But don’t expect any such revelations from this purported champion of transparency and disclosure. The Community Rights Counsel doesn’t even disclose its support from Soros on its website.
Soros, the erstwhile champion of campaign-finance reform, tried to use his fortune to decide the 2004 presidential election. Through Kendall and the Community Rights Counsel, he now purports to oppose judicial education that is not controlled by federal bureaucrats or bar activists, but he in fact is applying an ideological litmus test that favors the Aspen Institute and penalizes George Mason.
In announcing its new disclosure policy, the Judicial Conference emphasized that there is a “compelling need” for “continuing education of judges in law, science, history, economics, sociology, philosophy, and other disciplines.” This compelling need, the Judicial Conference has recognized, cannot be fully satisfied by the Federal Judicial Center. Programs like George Mason’s therefore perform an important public service. In a comment evidently directed at the Leahy bill, the Judicial Conference embraced the position that anyone who “seek[s] to limit judges’ access to knowledge” disserves this compelling need.
There is, in short, no reason to believe that any further restrictions on judicial seminars would serve the public interest. But one real test of the soundness of any proposal is whether it treats the George Mason programs at least as favorably as the Aspen Institute’s.
— Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s “Bench Memos” blog.