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Selective Concern over Judicial Conferences:

For the past several years Community Rights Counsel has been crusading against privately funded conferences for federal judges. I have been critical of this campaign (see, e.g., here). Based on my read of the charges, and my attendance at some of the conferences that have been criticized, I think that CRC's claims that such conferences pose an ethical problem for judges are unfounded. If federal judges are so malleable that hearing presentations on various issues by prominent academics is a threat to judicial integrity, judicial seminars would be the least of our concerns.

CRC purports to be motivated by a concern for judicial ethics, rather than a specific ideological agenda. This article by Ed Whelan casts doubt on that claim. While targeting conferences hosted by George Mason University's Law and Economics Center or the Foundation for Research on Economics and the Environment in conjunction with Montana State University, CRC failed to critique conferences run by the Aspen Institute. CRC's Doug Kendall claims the relevant Aspen seminars have "a much more balanced profile" than those he attacks, but Whelan's article casts doubt on that claim too. If anything, the Aspen seminars have been less balanced. But this is a sideshow anyhow, as CRC has never suggested that balanced programs would obviate its concern about the private funding of such programs. If privately funded seminars for federal judges are a problem — and I do not beleive they are — then there is no reason to let Aspen off the hook.

UPDATE: In the comments below, Steve Lubet takes issue with my argument that: "If federal judges are so malleable that hearing presentations on various issues by prominent academics is a threat to judicial integrity, judicial seminars would be the least of our concerns."

By that reasoning, very little short of outright bribery would be an ethical concern. You could make the same claim about: most ex parte communications; investments in parties to the litigation; gifts from litigants; prior firsthand knowledge of fact in dispute; and relatives appearing as counsel. Yet we have statutes and rules — that are by and large uncontroversial among the judiciary — that either prohibit such conduct or provide for disqualification.
See also his comment here.

I don't think the analogy is apt. As another commenter named Steve notes, these rules all involve parties to litigation appearing before the judge or otherwise concern pending cases. CRC's criticism of the various judicial conferences is not so narrow — and if it were they would have no case, as these seminars (with only one exception of which I am aware) typically involve presentations by other judges and academics on broad legal and economic issues, not presentations by representatives of litigants. Thus, the bulk of CRC's attacks have focused on the content of these seminars or the sources of funding — even though corporate funders are typically not present at the conferences.

My point is that if simply attending privately funded seminars and hearing presentations is a concern — as CRC suggests it is — then we should be concerned abot judges' ability to evaluate and assess the arguments put forward in their courts by litigants. In the end, I find CRC's arguments unpersuasive — as, apparently, has the Judicial Conference, which recently adopted rules for such conferences far less stringent than CRC has sought.

FURTHER UPDATE: CRC's Doug Kendall comments here.

Steve Lubet (mail):
Without getting into comparisons between Aspen and FREE, I do want to address one Jonathan's arguments. He writes,

"If federal judges are so malleable that hearing presentations on various issues by prominent academics is a threat to judicial integrity, judicial seminars would be the least of our concerns."

By that reasoning, very little short of outright bribery would be an ethical concern. You could make the same claim about: most ex parte communications; investments in parties to the litigation; gifts from litigants; prior firsthand knowledge of fact in dispute; and relatives appearing as counsel. Yet we have statutes and rules -- that are by and large uncontroversial among the judiciary -- that either prohibit such conduct or provide for disqualification.
10.13.2006 11:51am
MS (mail):
What, if not access, are the foundations that support FREE and Aspen buying?
10.13.2006 12:00pm
HLSbertarian (mail):
Steve: What about "that reasoning" leads you to put "hearing presentations on various issues" on the same level as bribery and financial interest in the litigation?
10.13.2006 12:26pm
Steve Lubet (mail):
Federal judges are disqualified if they hold any financial interest, "however small," in a party to the litigation. Most judges, of course, could overlook relatively small financial positions. Thus, following the reasoning in question, one might argue,

"If federal judges are so malleable that 'owning a few thousand dollars worth of stock' is a threat to judicial integrity, that would be the least of our concerns."

In the same vein, most judges could overlook ex parte importuning by prosecutors. Hence,

"If federal judges are so malleable that 'going to lunch with prosecutors' is a threat to judicial integrity, then 'ex parte communications' would be the least of our concerns."

Bribery, of course is different and could not be similarly minimized. But that's the problem with the template for Jonathan's argument, it can be used to trivialize everything short of bribery.
10.13.2006 1:24pm
Don Miller (mail):
What, if not access, are the foundations that support FREE and Aspen buying?

It would seem easy to me. I guess you could define it as "access", but all these foundations want is to possibly expose judges to new or different lines of legal thought.

I believe the goal, in the long run, is to change judicial philosophy. I don't believe they have any intention of changing the outcome on a specific case or for a specific individual or company.

Competing foundations could put on conferences that have lecturers that discuss cases that are friendly to their viewpoint, living constitution, originalism, etc.

If someone believes that this is a bad thing, then they should criticize all organizations that host such events equally. To criticize one organization and not another is to expose ones self as objecting to the content and not the practice as claimed.

not a judge, never been to a judicial conference
10.13.2006 1:39pm
Steve:
The key factor in all the examples Steve cited is that they all involve actual parties to, or issues in, pending litigation.

Attending a judicial conference and listening to academics argue that the law ought to be X or Y is not much different from reading the latest issue of the law review.
10.13.2006 2:10pm
elChato (mail):
Gosh, we have sure taken our time to get up in arms over such pernicious influence as that exerted over Harry Blackmun by the Aspen Institute.

I'm confident the Community Rights Counsel did what it could to stop his long, slow slide into his position in <i>Callins v. Collins</i>.
10.13.2006 2:25pm
John Doe (mail):
Second Steve: Not so quick -- Lubet might agree that it's problematic for judges to read law review articles. At least Republican-appointed judges (if he applies the same double standard whereby he condemns the FREE seminars but doesn't want to comment on the Aspen seminars).
10.13.2006 3:25pm
Steve Lubet (mail):
Further to Jonathan's update: My comment goes to the rhetorical strength of his argument, not to its content.

To give you another example, in Justice Scalia's non-recusal opinion in the Cheney case (again, I am not writing about the merits), he allowed that he had received a few hundred dollars worth of air travel, and then said (I'm paraphrasing from memory): If a Supreme Court justice could be bought so cheaply, then the republic is in greater danger than i feared.

I think that's a rhetorical trick, unworthy of Scalia, because it trivializes the alleged problem rather than confront it.

Same thing with judicial seminars. They ought to be addressed on the merits (as Jonathan mostly did), rather than compared to "much worse things that we have to worry about, once we are worrying about this.
10.13.2006 3:29pm
Steve:
Well, that's a fair point, but I think once one has adequately addressed the merits, there's nothing wrong with throwing in a rhetorical twist at the end. It would be different if the rhetorical twist represented the entirety of the argument.
10.13.2006 3:40pm
Doug Kendall (mail):
Given the Judicial Conference's recognition of the problems that can stem from private judicial trips, and the positive steps the Conference took last month to regulate trips by both LEC and Aspen Institute, Ed Whelan's NRO rant (and Jonathan's posting here) seems both sad and beneath response. Nonetheless, a few factual errors in Whelan's piece merit correction.

While there are legitimate grounds to distinguish Aspen Institute and LEC -- most objectively, Aspen is a bit player, running 1 federal judicial trip for every 6 run by LEC -- Community Rights Counsel's position has always been that gifts associated with Aspen Institute judicial programs should be banned along with gifts associated with LEC programs.

That's precisely what legislation introduced in January 2006 by Senator Patrick Leahy would do. To reach the opposite conclusion, Whelan conflates and mischaracterizes two provisions of Senator Leahy's bill. The first exempts from the definition of the term "private judicial seminar" programs run by bar associations and run by and at the campuses of institutions of higher education where judges are not the primary audience. This would actually allow George Mason Law School to host judges at certain programs in Arlington, if it chose to do so, but it wouldn't offer any advantage to Aspen.

The second provision allows reimbursement for the expenses incurred by judges on the day they participate in a panel discussion. This provision allows judges to accept gifts as part of participation in panels run by groups like the Federalist Society and the American Constitution Society. It allows multi-day Aspen Institute programs to go on only to the extent that judges come despite only being reimbursed for their expenses on the day or days they participate in panel discussions.

I expressed significant misgivings about these provisions to Senator Leahy's staff (and to answer one of Whelan's many insulting insinuations, I didn't write Senator Leahy's bill), out of concern that LEC or Foundation for Research on Economics and the Environment would abuse them, by for example, moving their trips at the beach at Pepperdine Law School and then claiming the trips were on the campus of an institute of higher education. I would wholeheartedly support any efforts by Whelan to work with Senator Leahy in closing these loopholes to ensure large gifts associated with both LEC and Aspen programs are banned. But that, I suspect, isn't what this is all about.

It is just a lie to for Whelan to say CRC doesn't disclose its support from the Open Society Institute (the Soros-affiliated institution that has generously supported CRC's work over the past five years). We disclosed all of our supporters, including OSI, in the acknowledgements page of our report Tainted Justice. This is up on our website and has been there for years. Moreover, unlike the corporate funders of LEC, private charities like OSI have an obligation to disclose their contributions on their tax form.

Anyone willing to spend 5 minutes at the Foundation Center in Washington DC could get a complete picture of who OSI funds and in what amounts and who funds CRC (CRC receives no money from corporations). Until the Judicial Conference passed its new rules, no one, even the judges who participated in LEC's programs could find out what corporations fund LEC. LEC still refuses to disclose how much particular corporations donate to their programs.

As mentioned above, I applauded the Judicial Conferences' demand for greater transparency by trip hosts and disclosure by participating judges. This was an important step, but it doesn't solve the root problem. Only when Congress passes legislation creating a Judicial Education Fund, allowing judges to enter the market of private judicial education as paying customers, will the stain of corporate sponsorship be removed from the judicial branch. Once such legislation is passed, I would have no problem if judges were to choose to pay their own way to LEC programs and not Aspen's.

You can agree or disagree with this solution, but it is certainly not the product of some vast left wing conspiracy. It is, instead, the best way I know of protecting judicial indepence and public confidence in the judicial branch.

Doug Kendall
Executive Director
Community Rights Counsel
10.13.2006 10:18pm
David M. Nieporent (www):
Until the Judicial Conference passed its new rules, no one, even the judges who participated in LEC's programs could find out what corporations fund LEC. LEC still refuses to disclose how much particular corporations donate to their programs.
And as Whelan points out, if judges don't know, then it by definition can't bias them.

It seems like the only purpose of requiring disclosure is to enable left-wing groups later to demonize judges by saying, "Look at the evil corporations with whom they're associated." (Note how Doug says "the stain of corporate sponsorship." (emphasis added))

And I note he doesn't address the point about lack of balance.


(By the way, doesn't the name of an organization like "Community Rights Counsel" show how far modern "liberalism" has departed from actual liberalism? Communities don't have rights; only people do.)
10.13.2006 10:33pm
Steve:
Communities don't have rights; only people do.

Well, since you say so. I won't tell the corporations if you won't.
10.13.2006 11:01pm