Judicial Seminars -- Dowling Complains; Adler Responds:

In my last post on the D.C. Circuit’s rejection of an amicus brief submitted by former judges, including former D.C. Circuit Judge Abner Mikva, I responded to Mikva’s suggestion that Judges Sentelle and Randolph rejected the brief because of his opposition to privately funded seminars for federal judges. Among other things, I wrote:

As for my accusation against Judge Mikva, he endorsed a report attacking privately funded seminars for judges that included ridiculous charges against sitting judges, including judges with whom he served. One of the charges was that a judge's vote in a case was influenced by having attended a seminar — even though the case was decided before the judge attended the seminar where his mind was allegedly poisoned with "anti-environmental" views.
I also linked to an NRO article of mine about these charges.

Timothy Dowling of Community Rights Counsel believes that my characterization of CRC’s work on privately funded judicial seminars was inaccurate. Dowling writes:

I am writing to correct your recent misrepresentations regarding Community Rights Counsel’s position and statements on private judicial seminars. In a 12/30 post at The Volokh Conspiracy, you accuse us of making the “ridiculous” accusation “that a judge's vote in a case was influenced by having attended a seminar even though the case was decided before the judge attended the seminar where his mind was allegedly poisoned with ‘anti-environmental’ views.”

Your post does not identify the case you have in mind (is it Florida Audubon?), but to my knowledge we have never made any such accusation. In fact, our reports on private judicial seminars expressly note the timing of such post-ruling seminars precisely to eliminate any suggestion of influence (e.g., p. 78 of “Nothing for Free,” observing that Judge Sentelle did not attend a FREE seminar until after his vote in Florida Audubon, and contrasting his situation with judges on the case who attended pre-ruling seminars).

Even with respect to pre-ruling seminars, our reports caution against casual inferences of influence or causation. And in our ethics petitions filed with federal appellate courts, we likewise have made clear we are not accusing any judge of improper conduct in a particular case, or of being unduly influenced by any particular seminar. We object to the inevitable appearance problems raised by these seminars as a general matter. We also express concern about the specific appearance issues raised in individual cases when judges attend a private seminar held in close proximity (either shortly before or shortly after) the issuance of a ruling. Litigants in these cases and leading ethics experts have joined us in expressing these concerns.

More to the point, the central ethical problem remains regardless of the seminar’s timing or content. Our position is straightforward: Federal judges should be held to the same ethical standards respecting the travel gifts that attend private seminars as the federal prosecutors that practice before these judges. USDOJ attorneys, other federal attorneys, and indeed all Executive Branch employees are prohibited from personally accepting substantial travel gifts, including those associated with continuing education, offered to them by virtue of their official position. Federal judges should be held to the same standard, as I argue in this Legal Times op-ed.

If you believe that federal judges should be subject to less demanding standards than those that apply to federal attorneys, I’d be interested in hearing your reasons. Alternatively, if you believe Executive Branch employees should be allowed to cash in on their official positions and accept travel gifts for seminars at Hilton Head, Bozeman, and other vacation hot spots offered to them by virtue of their positions as public servants, again I would welcome your contribution to the public dialogue. But your misrepresentations of our position in an attempt to score cheap debater’s points are a disservice to our profession.

I stand by my representations of CRC’s attacks on privately funded judicial seminars, in particular my representation of CRC’s July 2000 report, Nothing for Free. The report is filled with inaccuracies, such as the claim that conference sponsors pay for judges’ leisure activities; that FREE conferences are held at luxury resorts; that the conferences in question “present a single and unchallenged line of reasoning in areas of law with many competing views”; and that “These seminars amount to a veiled effort to lobby the judiciary under the guise of judicial education.” (p. 1) CRC personnel also participated in misleading news reports, such as one appearing on ABC’s “20/20”, that suggested private funders were paying to take judges golfing, rather than sponsoring intensive educational programs. In Nothing for Free, CRC called for a "ban" on privately funded judicial seminars.

The primary thrust of the report was that private judicial seminars are altering judicial opinions, and “breeding a new conservative judicial activism” (p. 2). Nothing for Free warned of

the emergence of a growing anti-environmental judicial activism developing in lockstep with the ideological goals promoted by the Big Three [sponsors of judicial education conferences]. Four key legal issues are focused on, and remarkably, in each area, the author of every leading activist decision has attended at least one Big Three seminar. Most of the judges attended numerous trips, sometimes while a pertinent case was before the court, and sometimes ruling in favor of a litigant backed by the same special interests that sponsored the judge’s trip. (pp. 2-3)
One of the “four key legal issues” addressed in the report is standing. The only two standing cases the report suggests were influenced by attendance at judicial seminars are Florida Audubon Society v. Bentsten (D.C. Cir. 1996) and PIRG v. Magnesium Elektron (3rd Cir. 1997) (pp. 74-78). To stress the point, the report has a text box highlighting the fact that the authors of the two opinions, Judges David Sentelle and Jane Roth, respectively, both attended conferences sponsored by FREE or other organizations (p. 77). Later on in the report, one finds that Judge Sentelle did not attend a conference until after his opinion was issued. Yet Florida Audubon is supposed to be a “striking example” (p. 77) of the “new conservative judicial activism” fostered by privately funded seminars for judges.

The other example in the standing section of the report is hardly more compelling. Yes, Judge Jane Roth did attend more conferences than Judge Sentelle – a grand total of three during the period in question. She too attended a conference after authoring the decision in question. She also attended one beforehand – but it was two years beforehand. This, CRC tells us, is a “compelling example of the appearance problems that can result” from such conferences. To me this charge is, as I said in my prior post, “ridiculous.”

Judge Mikva authored the Foreword to the report, in which he suggested that “private interests are allowed to wine and dine judges at fancy resorts under the pretext of ‘educating’ them about complicated issues.” (p. iii). I would certainly understand if this upset Judge Sentelle and other judges with whom Mikva served who are attacked in the report, but I do not believe it would influence their judgment in legal matters. In any event, Judge Mikva’s endorsement of the report was particularly unfortunate because, as Judge Randolph documented in this article, the actual seminars, as conducted, present no ethical problems for federal judges.

While CRC’s attacks on judicial conferences have become more nuanced and responsible since the Nothing for Free report, they are still based on misrepresentations of the conferences and the faulty premise that we have something to fear from exposing judges to a variety of viewpoints on broad issues of public importance. (Set aside that CRC conveniently gives some sponsoring organizations, such as the Aspen Institute, a pass; p. 18).

At this point, I think that there is little question that these seminars, as conducted, comply with all of the relevant conflict-of-interest rules for federal judges. Indeed, courts and independent reviews have repeatedly rejected ethical complaints and recusal motions alleging otherwise. For instance, CRC filed an ethics complaint against Chief Judge Danny Boggs for serving on FREE's board. This complaint was dismissed in an opinion finding many of CRC’s attacks lacked “factual foundation” and “typif[ied] the character assassination that is all too common in our Nation's Capital, much of it intended to further the accuser's legislative agenda.” This opinion and various reviews of FREE’s conferences are available from FREE’s website here.

The Federal Advisory Committee on Codes of Conduct of the Judicial Conference’s Advisory Opinion 67 outlines the requirements for privately funded judicial seminars. I believe this opinion (revised as recently as 2004) sets a sensible standard, and there is little question that the programs CRC attacks comply. Among other things, the opinion notes:

The education of judges in various academic and law-related disciplines serves the public interest. That a lecture or seminar may emphasize a particular viewpoint or school of thought does not necessarily preclude a judge from attending. Judges are continually exposed to competing views and arguments and are trained to consider and analyze them.
I agree with this wholeheartedly. It is rather clear to me that at least some of Tim Dowling’s colleagues at CRC feel otherwise.

UPDATE: Tim Dowling responds in the comments below. I did not apologize for my characterization because I believe my post was accurate. CRC's report stated Judge Sentelle's opinion was a "striking example" of the ideological corruption caused by these seminars, insinuating his opinion was altered [influenced by the seminar], and then noted he had yet to attend a conference at which his mind could be polluted by presentations, debate, and discussion on economic and environmental subjects with other judges.

As for CRC's motivations, Dowling's colleagues have reaptedly warned of the allegedly dangerous ideological agenda of the sponsors of the seminars they attack, while (in the 200 report) giving the Aspen Institute a free pass (even though Aspen, unlike some CRC attacks, has even paid the expenses of judges' spouses). If this is not an issue, why is it so central to the 2000 report and other CRC output on the subject? And if ideology is no concern, why does CRC continually misrepresent the content of these seminars? If CRC's position has changed, that is great news, and I will be happy to publish a prominent post noting CRC's repudiation of its prior statements, and acknowledging that many of my criticisms no longer apply.

In the end, Dowling wants the taxpayers to pay for more judicial education, while I am happy to have it done by non-profit organizations, universities and others, while requiring judges to make appropriate disclosures. I think it is clear which approach will expose judges to a wider array of perspectives and educational opportunities. As I've said before, 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.

UPDATE TO THE UPDATE: I corrected a typo above as indiciated. "Altered" was not the word I intended.

FINAL UPDATE: Tim Dowling responds again. Dowling focuses on what may have been an overstatment on my part — did CRC "charge" Sentelle with having been influenced, or merely insinuate as much — without choosing to defend the report as a whole. It's worth noting here that Dowling's own work on this subject, such as the op-ed linked above, is significantly more nuanced and judicious than the report at issue.

The Nothing for Free report repeatedly stresses that the author of "the judges writing the decade’s most activist, anti-environmental opinions have all attended" objectionable seminars (p. 4, emphasis added; for similar statements see pp. 2-3, 62, 78). This would certainly seem to include Sentelle. The "Scorecard" boxes that appear through the report emphasize the point. That, in reconting the details, the report tacitly acknowledges that the case against some judges, such as Sentelle, is weaker than others does not mean CRC did not suggest "all" of the judges were influenced. The broad insinuation is made repeatedly, while the qualifications are tacitly buried well into the text.

In any event, if I'm over-interpreting CRC's language — and seeing more of an attack on Judge Sentelle (for whom I clerked, though not during the case in question) than the language will bear — that hardly exonerates the report, or makes the basic charges less "ridiculous." See, for instance, the report's treatment of Judge Roth who authored the only other standing case it discusses. Thus, I don't believe I owe CRC an apology, though the folks at CRC may wish to consider whether they owe apologies to the judges written about in their reports.