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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.

Tracy Johnson (www):
Is an amicus brief by retired judges recommending for or against something in the Department of Justice, carry as much weight as a group of retired Generals recommending for or against something in the Department of Defense?

Case in Point: Recommending Rumsfeld's ouster?

(Personally, I didn't care either way since it was a political news item from last year, it just sounded sooooo similar and I just couldn't get it out of my head.)
1.3.2007 10:39am
Kempermanx (mail):
WAY OFF TOPIC

Why have you not addressed the Dec 15 Duke Lacrosse hearing and the Dec 28 NC Bar Complaint against Nifong in Durham.

Seems to me to be a ripe topic, DA accused of dishonestly, fraud, etc. Hiding evidence from a Judge, etc. Lot more meat than some of your latest posts, and a lot more important to the law in the country.

Inquiring minds want to know?
Kemp
1.3.2007 10:44am
R:
I'm not a lawyer and know next to nothing about legal ethics so bear with me, but what's the problem with a judge being influenced by a legal seminar, even it's free?

What's the more ethical position? For a judge to say, "I'm attending this seminar in the hopes that I will learn something new for the precise purpose of potentially influencing future decisions," or, "I'm just going for the fun time and am going to plug my ears during the actual seminar so as not to learn anything that could possibly influence my future decisions"?

Or is the fear that judges might make decisions that they don't really agree with to pay back the "bribe" of the free seminar?
1.3.2007 11:17am
Ragerz (mail):
R makes an excellent point. If seminars don't influence judges, then why have them go at all? On the other hand, if they do influence judges, then perhaps we should be suspicious of certain ideological organizations (like the Federalist Society or the ACLU or ACS or whoever) anxious to provide a "free" seminar in order to "educate" the judge.

Overall, if we believe that organizations that sponsor these "free" seminars are not simply moronic, presumably when they spend scarce resources on "educational" events they hope to get something worthwhile from them. Presumably, that something worthwhile in this case is the opportunity to influence people in important positions.

A famous economist once said there is "no such thing as a free lunch." May I suggest that there is also no such thing as a "free seminar." It is wrong for certain ideological groups to have privileged access to federal judges to "educate" them to their point of view; access that is gained by offering "free" educational seminars with nice perks. If we believe Federal judges lack adequate education, perhaps we should have the Federal government pay for it. Then, if Federal judges choose to go to a non-free seminar by some organization, fine. At least they were not induced to go by any perks that are not fully paid for by the organization.

The Democratic Congress should step in with a statute making attendance at these "free" educational seminars illegal.
1.3.2007 11:31am
Hei Lun Chan (mail) (www):
Ragerz, by that logic free blogs should be illegal, or are you not aware that Prof. Adler is brainwashing you AT! THIS! VERY! MOMENT!
1.3.2007 11:42am
Justin (mail):
In response to R, for the difference between "proper" and "improper" corruption, see The Transparency Myth, an article written in the Connecticut Public Interest Law Journal, dealing with the difference in proper and improper influence in terms of corruption. Focus on Part II at 311-22.
1.3.2007 11:46am
GMUSL 3L (mail):
I'm at the point where whenever the CRC, any of its politboro, its Leninist founder Doug Kendall say something, I believe the opposite. If those Kelo-supporting schmucks said that the sun was going to rise in the east tomorrow, I'd expect it to come up in the west.

For them to be so wrong on so many issues is pretty impressive.
1.3.2007 12:07pm
Nate F (mail):
Hei Lun Chan,

So far as I can tell, reading this blog doesn't have any perks beyond the educational aspect. Unlike, say, these seminars.
1.3.2007 12:14pm
Tim Dowling (mail):
Dear Jonathan,

In my email to you and Professor Volokh, I took issue with the misrepresentation set forth in your 12/30 post, in which you asserted that CRC made the "ridiculous" allegation "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." My email explained that (1) we haven't made any such allegation, (2) we expressly counseled our readers against drawing such conclusions, and (3) with respect to the Florida Audubon case in particular, we specifically distinguished the post-ruling seminar attended by Judge Sentelle from the eight pre-ruling seminars attended by his colleagues on the case.

In your response, you do not apologize for your misstatements, but instead launch a broadside attack on our 2000 report. Your commentary today is strewn with similar mischaracterizations. I won't burden you with a point-by-point rebuttal, in part because I suspect it would lead to further misstatements on your part, but I do want to correct one important myth you continue to perpetuate.

You state that our concern with these trips is motivated by a "fear [of] exposing judges to a variety of viewpoints on broad issues of public importance." Wrong. If a federal judge concludes that the next step in a proper judicial education is to explore latest libertarian musings on, for example, why the science of global warming is a vast left-wing conspiracy, I will defend to the death the judge's first amendment right to do so. I ask only that the judge do so in an appropriate place and in appropriate circumstances, and not at a FREE seminar/vacation in Bozeman, Montana where the travel and lodging is paid for by private interests.

The legislative solutions we support are designed to remove the taint of private funding, not chill debate. They apply to all groups across the board, regardless of philosophical or jurisprudential disposition (including the Aspen Institute), and they contain appropriate exceptions for bar associations and similar groups. These bills would create a public funding mechanism that could be used even at seminars at which you, as a panelist, could spend countless hours excoriating CRC to your heart's content. I'm not sure how we could be more encouraging of free debate than that. Remove the private funding, and then have at it.

Chief Justice Roberts recognizes that the area needs reform, and we publicly and enthusiastically hailed the news rules on private judicial seminars issued in 2006 by the Judicial Conference under his leadership. We look forward to working with the judiciary and the Congress to achieve additional reforms.

Cordially,
Tim
1.3.2007 12:15pm
Jeff Hartley (mail):
Ragerz

It is wrong for certain ideological groups to have privileged access to federal judges to "educate" them to their point of view


Can you list for us the ideological groups that should have priveledged access to federal judjes ?

Thanks,

Jeff
1.3.2007 12:54pm
Tim Dowling (mail):
Jonathan writes: "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, 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."

Well, no we didn't. We said the opinion is a "striking example" of how lower courts have expanded standing doctrine. Follow the progression. P.75, stating: "Certain lower federal courts have been particularly aggressive in following Justice Scalia's lead in expanding standing barriers to exclude environmental plaintiffs." We then give two examples, with the very next sentence stating that "perhaps the best example" is PIRG (discussed on pp 75-77) and then followed by "another striking example" in Florida Audubon (pp. 77-78), which is then followed by a big bold heading called "The FREE/Big Three Connection" (p.78) which absolves Judge Sentelle and contrasts his post-ruling seminar with the eight pre-ruling seminars attended by his colleagues on the case.

I leave it to your good readers to review our reports for themselves and make thier own judgment.
1.3.2007 1:04pm
Tim Dowling (mail):
Jonathan writes: "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, 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."

Well, no we didn't. We said the opinion is a "striking example" of how lower courts have expanded standing doctrine. Follow the progression. P.75, stating: "Certain lower federal courts have been particularly aggressive in following Justice Scalia's lead in expanding standing barriers to exclude environmental plaintiffs." We then give two examples, with the very next sentence stating that "perhaps the best example" is PIRG (discussed on pp 75-77) and then followed by "another striking example" in Florida Audubon (pp. 77-78), which is then followed by a big bold heading called "The FREE/Big Three Connection" (p.78) which absolves Judge Sentelle and contrasts his post-ruling seminar with the eight pre-ruling seminars attended by his colleagues on the case.

I leave it to your good readers to review our reports for themselves and make their own judgment.
1.3.2007 1:04pm
RI Lawyer:

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.


We should be worried.

I'm less concerned about a federal judge knowingly reaching a result in order to "reward" an organization that has provided an attractive benefit than I am by the subtle psychological dynamic that leads someone to act favorable towards a benefactor without even being aware that it has occurred.

A good friend of mine is a practicing psychiatrist and can have dinner 4 nights a week at the best restaurants in town courtesy of various drug companies interested in "educating" him about their product, if he chose to do so. In fact, he has, on occasion, made presentations on behalf of these companies.

He tells me that the drug companies can and do track prescribing patterns from docs who attend these seminars almost in real time and there is no question that they begin prescribing the drug at a significantly increase rate immediately following these sessions. And I bet if you ask those docs, most will say, and probably believe in their heart, that the dinner and drinks had nothing to do with the change in behavior.

I have no problem with judges learing more about the law, but let them do it like I do, on their own dime.
1.3.2007 1:08pm
Byomtov (mail):
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.

What good does disclosure do? That's reasonable for elected officials, whose constituents can throw them out if they think they are overly influenced by contributions, trips, and the like. With Federal judges there is no such possibility.

And why does exposing judges only to the viewpoints of those who can afford to pay for them to attend seminars lead to a wider array of perspectives than giving the judges a budget that let's them go to any they deem worthwhile?

As for the cheap line about taxpayers, well, the judges work for the taxpayers. If further education helps them do a good job we shouldn't mind paying for it.
1.3.2007 1:20pm
R:
Justin,

I couldn't open that link.

Ragerz,

Thank you for the compliment but you seem to be misunderstanding my point. While I am asking, "If seminars don't influence judges, then why have them go at all?", am also asking if they do influence judges, why is that a problem?

I'm just asking for someone to walk me through the worst case scenario. Say a judge goes to seminar that he wouldn't attend if not for the free drinks and the pretty locale. He'll either be influenced by the content of the seminar based on the merits or he won't be. Is anyone really accusing judges of selling their decisions for free-bees, or that these seminars have some kind of brainwashing techniques that will unduly influence otherwise reasonable judges? People just seem to have a problem with the fact that these seminars are privately funded.

JA seems to address my point best in his update:

"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."

Aren't judges qualified to, well, judge, what arguments are compelling, regardless of where they come from?
1.3.2007 1:22pm
Justin (mail):
Works for me, R. If you have Lexis or Westlaw, its 4 Conn Pub Int L J 308
1.3.2007 1:33pm
David M. Nieporent (www):
I'm less concerned about a federal judge knowingly reaching a result in order to "reward" an organization that has provided an attractive benefit than I am by the subtle psychological dynamic that leads someone to act favorable towards a benefactor without even being aware that it has occurred.
We should all be concerned about that -- but that's not at issue here, because their benefactors aren't the people they have an opportunity to act favorably or unfavorably towards. If FREE were a litigant in a case before the judge, of course such a seminar would be improper. But that's an entirely different scenario.
A good friend of mine is a practicing psychiatrist and can have dinner 4 nights a week at the best restaurants in town courtesy of various drug companies interested in "educating" him about their product, if he chose to do so. In fact, he has, on occasion, made presentations on behalf of these companies.

He tells me that the drug companies can and do track prescribing patterns from docs who attend these seminars almost in real time and there is no question that they begin prescribing the drug at a significantly increase rate immediately following these sessions. And I bet if you ask those docs, most will say, and probably believe in their heart, that the dinner and drinks had nothing to do with the change in behavior.
I don't see your point here. I utilize calculus a lot more after being educated about it than I did before. Doctors utilize a particular drug a lot more after being educated about it than they did before. How does that demonstrate "influence" of the sort we're concerned about? You're assuming that the education at these pharmaceutical seminars is a sham. How about not? What if they're actually being educated?
1.3.2007 2:14pm
John (mail):
Shouldn't we check judges to see who taught them in college, grad school and law school? After all, they were probably more impressionable then.
1.3.2007 3:17pm
Nate F (mail):

I don't see your point here. I utilize calculus a lot more after being educated about it than I did before. Doctors utilize a particular drug a lot more after being educated about it than they did before. How does that demonstrate "influence" of the sort we're concerned about? You're assuming that the education at these pharmaceutical seminars is a sham. How about not? What if they're actually being educated?


I take it you don't know much about psychiatric pharmaceuticals. Speaking from both personal experience from awhile back and anecdotes from others with personal experience, they are seriously over- (and mis-) prescribed. I don't believe for a second that pressure from the industry doesn't have anything to do with that.
1.3.2007 4:14pm
r78:
Thread should be titled "Dowling complains - Adler avoids retracting incorrect statement.

Look, I have no idea what the CRC said. But you said they made a particular ridiculous statement. Dowling said not so in pretty clear terms. Then Adler skips over that and launches a bunch of other allegations.

Why not just have the balls to say you were wrong? (If in fact you were)(And, yes, even if the CRC is in bed with the devil, that doesn't make a lie about them any more correct.)
1.3.2007 4:37pm
David M. Nieporent (www):
I take it you don't know much about psychiatric pharmaceuticals. Speaking from both personal experience from awhile back and anecdotes from others with personal experience, they are seriously over- (and mis-) prescribed. I don't believe for a second that pressure from the industry doesn't have anything to do with that.
Well, your "belief" does not constitute evidence. I can agree that they're overprescribed; that doesn't mean one can attribute it to "pressure" (what "pressure" would that be, anyway) from the drug manufacturers. Maybe it's due to "pressure" from patients (or their parents)? Or schools? Or the courts? Or just due to a misguided belief in their utility?
1.3.2007 5:49pm
Tim Dowling (mail):
Dear Jonathan:

In your "Final Update" you write: "The Nothing for Free report repeatedly stresses that the author of 'the judges [sic] 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."

My goodness, this is becoming quite tiresome. All the mentioned judges did attend seminars, including Judge Sentelle, and as we point out right in the discussion of Florida Audubon (not "buried" somewhere), Judge Sentelle's attendance occurred after the ruling, whereas his colleagues on the case attended eight seminars before the ruling. You seem concerned that someone might read pages 1-77, and then in the middle of the discussion of the very case that prompted your screed, fail to turn the page to page 78, where the timing is fully discussed, and then also fail to see the bold all caps heading in the middle of page 78 that introduces the discussion distinguishing correlation from causation. If you know of anyone who stopped reading the discussion of Florida Audubon in the middle, please encourage him or her to turn the page and read the entire account, where the timing is fully disclosed, and where the significance of the ruling and its connection to private seminars is explained by reference to the other judges.

Oy vey.

Cordially,
Tim
1.3.2007 5:54pm
David M. Nieporent (www):
r78: Jonathan was wrong on one point; in his NRO column he calls CRC an "environmental group," when in fact it's simply a power grab by local governments, as they themselves admit in the fine print of their website:

CRC began as a project of the International City/County Management Association (ICMA)--a national association representing over 8,000 city and county managers from around the country--and was housed within ICMA's offices until July 1998.
1.3.2007 6:05pm
Jonathan H. Adler (mail) (www):
Tim --

You're right. It is tiresome. It took me about 20 seconds to find a news account of the 2000 study (in Greenwire) that noted the attack on Sentelle without the qualification.

Regards,

JHA
1.3.2007 6:18pm
r78:
Adler

You are hitting a new low. Are you seriously suggesting that CRC is responsible for media misinterpretations of its report?

Just admit that you were wrong about the one point that he called you on and get on with your other attacks.

Be a grown up.
1.3.2007 9:27pm
Christopher Cooke (mail):
the real problem with Sentelle was his gerrymandering of Starr's appointment as Clinton's grand inquisitor (sorry, Independent Counsel) via his lunch with Lauch Faircloth.

And, having read Professor Adler's posts and Mr. Dowling's responses, it seems clear that Professor Adler is ducking the issue: did Professor Adler misstate CRC's position when he accused the CRC of taking the "riduculous position" that a judge was influenced in his decision in a case by having attended a seminar AFTER he voted? It seems to me, by his refusal to cite to, or quote from, the portion of the CRC report that states such a position, that he did misstate the position. Also, Professor, why not hold judges to the same standards as federal government attorneys? I used to be at the SEC, and we had very strict rules on gifts. Why should judges have more lenient ones? Because they write their own ethics rules and police all ethics complaints made against them? Except for your point about having someone else pay for the seminars, and your confidence in the ethics of the judges, I don't see you address why there are one set of standards for government attorneys and another for federal judges.
1.3.2007 11:19pm
Jonathan H. Adler (mail) (www):
r78 --

Tim Dowling suggested it was unreasonable to expect some to read the executive summary or opening pages of the CRC report, in which broad charges are made, without getting to the qualification on p.78, and I found a prominent example with less than a minute of effort. Indeed, I've had discussions with reporters where I've had to point out the very qualification at issue, because they somehow wrote, produced or investigated the story without noting it on their own.

For years, CRC issues press releases including Sentelle's opinion as evidence that "Corporate special interests are attempting to buy judicial influence at the highest levels and it appears to be working," repeatedly includes Sentelle's opinion in its litany of anti-environmental judicial activism spurred on by privately funded judicial seminars, promotes these charges with a professional PR campaign so as to generate news stories to support the claims of an "appearance" problem, and then should bear no responsibility when I or others complain that reporters accept the general charge without noting a qualification on page 78 of the accompanying report? Please.

JHA
1.3.2007 11:30pm
Steven J. Eagle:
As a faculty member at George Mason and as a participant in FREE and Liberty Fund programs for judges, I've had the opportunity to become acquainted with how privately sponsored judicial education programs work. I've also read the Community Rights Counsel reports objecting to the programs, and the benefit of discussions with my friend Tim Dowling.

CRC materials feature overheated rhetoric about "Corporate special interests [] wining and dining judges at fancy resorts under the pretext of 'educating' them about complicated legal issues."

Coach airfare and fairly basic accommodations are supplied. So are hundreds of pages of readings and many hours of sessions. Perhaps it is the opportunity for judges in their limited free time to go hiking, or -- at their own expense -- rafting or horseback riding, that makes these programs into "junkets."

I have seen no indication that the CRC is objecting to the intellectual substance of the judges' programs. The underlying objection, it seems to me, is that judges find it useful to acquire skills in such disciplines as economics, cost benefit analysis, and public choice theory that might help them in their work. If judges had fewer skills, they might rule differently. That would be the result, and conceivably the goal, of discouraging their participation.
1.4.2007 2:07am
Tim Dowling (mail):
Dear Jonathan,

Good grief. I will give this one more shot. It is entirely appropriate for us to refer to the Florida Audubon case in the Introduction to our report, given that judges in that case attended eight seminars prior to the ruling. But your complaint addresses our treatment of Judge Sentelle, who is mentioned by name in connection Florida Audubon first on page 77, with the exculpatory discussion on timing provided on the very next page in a section with a big bold heading (THE FREE/BIG THREE CONNECTION) that explains the relevance of the case to the problem with seminars. I'm surprised you view the report as a sucker punch. It isn't.

You don't favor us with the offending sentence from the Greenwire blurb, but if (as I suspect) it was a general reference to Judge Sentelle's role in the problem of private seminars, it was justified. He was on the attendance list for a Bozeman seminar at which counsel of record in the ATA case was allowed to lecture on the central legal issue in ATA while the case was pending in the D.C. Circuit. This is highly problematic, regardless of whether the attorney mentioned the ATA case by name. You also might ask Judge Sentelle whether he's been entirely scrupulous in reporting his private seminar travel gifts on his financial disclosure forms (see his July 2002 trip to Bozeman). Since you support full disclosure, this should concern even you.

To my friend Steve Eagle, hello and Happy New Year. It's nice to hear from someone at GMU who doesn't view CRC as a bunch of "Leninists" (see yesterday's 12:07pm comment). It's true that the central ethical problem with private seminars obtains regardless of ideological content, but the content of many seminars makes them especially problematic, as CRC has exhaustively documented. The ATA case is a prime example. Everyone has every right to produce books, articles, and amicus briefs on legal and policy issues, and federal judges have every right to read or ignore them. We'll have to agree to disagree on whether anyone should have the right to fly federal judges to Hilton Head, Amelia Island, and Bozeman for week-long stints, paid for by private interests, to read those writings.

Finally, to David Nieporent (6:05pm comment), sssshhhh about CRC's connection to ICMA. We have that carefully "buried" in a portion of our website cleverly and deceptively called "About CRC." Mum's the word.

Cordially,
Tim
1.4.2007 10:34am
Jonathan H. Adler (mail) (www):
(sigh)

Tim --

If the early general references to the case focused on panel participants, rather than authoring judges, I'd concede your point. But, as I've noted repeatedly (and documented with direct quotations), the report references Sentelle as the author of Florida Audubon. That this or subsequent reports critique his role in other cases, or criticize other participants in the case does not change that fact.

As for the Greenwire story, it is based on the Wash Post account that focused on Sentelle's role as the author of Florida Audubon, but did not include the qualification included at the end of the Post's story (as, I suspect, syndicated versions of the Post did not either -- but I cannot verify this suspicion on Westlaw).

As for CRC's real concerns, is it not accurate to say that CRC's focus on this issue arose from its research and opposition to "The Takings Project," and not an abstract concern with judicial ethics? If so, is it not fair to say that CRC's concerns -- at least as framed by your colleague Doug Kendall over the years -- are primarily ideological? (I readily admit that your writings on the subject have been more ideologically neutral.)

Regards,

JHA
1.4.2007 11:11am
Tim Dowling (mail):
Dear Jonathan --

Ditto on the sigh.

Again, you don't favor us with a quotation or citation, which makes a response difficult, but the July 25, 2000 Washington Post article on our report states in black and white that Florida Audubon was written in 1996 and that Sentelle attended his first FREE seminar in 1998. Evidently, the Post reporter turned the page from 77 to page 78 of our report. The article also notes that CRC criticized Sentelle's ruling on the merits, which we most certainly did. The article also notes that CRC "was not claiming cause-and-effect between the seminars and the court decisions," evidently because the reporter read and heard our repeated statements that we were not claiming a cause and effect relationship.

As for my motives, Jonathan, and "CRC's real concerns," I suspect that anyone who values federal environmental protection would find the FREE seminar agendas disturbing.

Cordially,
Tim
1.4.2007 12:02pm
Tim Dowling (mail):
Oops, I see I misread your post. You were not criticizing the Post article, but instead speculating that some syndicated version of it might have portrayed Judge Sentelle in an unfair light. I can't speak to the unquoted sentence from Greenwire, since you don't quote it, but don't you think we've come a little far afield with speculation on how a syndicated version might have been written?

One more word on seminar content: Yes, I am very concerned about the content of the major players in this area, but that doesn't reduce my dismay at how judges (but not federal prosecutors and other Executive Branch employees) are allowed to accept these travel gifts as a pure ethical matter. In our 2000 report (p.79), we noted that several prominent libertarian and conservative judges had declined to accept these gifts, including Judges Kozinski, Easterbrook, Silberman, Wilkinson and Posner. If only all federal judges would follow this example.
1.4.2007 12:17pm
John Doe (mail):
Dowling is technically correct that page 78, in a single sentence, clarifies that Florida Audubon was issued two years before Sentelle attended a seminar.

However, Dowling is being rather slippery here. CRC clearly did its best to mislead reporters and other readers on page 77. CRC spends that entire page condemning the decision in Florida Audubon. Then, page 77 features a huge box titled "Keeping Score: FREE and Big Three Trips By Judges Curtailing Environmental Standing." That box contains a chart showing that Sentelle attended one FREE seminar. The chart does NOT give any hint that Sentelle's attendance came two years after the decision.

So yes, it is quite possible that a report or other reader would be misled by CRC's decision to use a huge box to highlight Sentelle's attendance, right on the same page that discusses Florida Audubon, with NO mention of the timing.

Dowling is also being slippery in claiming that the CRC report introduced Florida Audubon as a "striking example" of judges following Scalia's lead, not as a "striking example" of improper influence. The reference to judges following Scalia's lead came two pages earlier, in the middle of page 75. While Dowling could be technically accurate, given that the entire CRC report is aimed at alleging improper influence or impropriety, the use of the phrase "striking example" on page 77 was, at best, very unclear. Again, the casual reader or reporter could easily be misled into thinking that Florida Audubon was a "striking example" of impropriety -- the thin that the whole report is supposedly about -- rather than a "striking example" of something offhandedly mentioned two pages earlier.
1.4.2007 12:38pm
r78:

Tim Dowling suggested it was unreasonable to expect some to read the executive summary or opening pages of the CRC report, in which broad charges are made, without getting to the qualification on p.78, and I found a prominent example with less than a minute of effort.

That's b.s. and you know it.

As Mr. Dowling stated above:


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.

You have never rebuttted this and instead of simply admitting that you overstated your case (or were just flat wrong) you have launched a series of other attacks and now - to avoid addressing this issue - you are once again trying to morph the debate into something else.

It's real simple, did they make that accusation in their report or not?

If they didn't you owe them an apology.
1.4.2007 1:02pm
John Doe (mail):
r78 -- read my post immediately above yours. The huge box on page 77 clearly attempts to suggest that Sentelle's ruling in Florida Audubon was influenced by the FREE seminar. That box does NOT say anything about the timing.

Anyone who designs reports like this has to know that when you emphasize a few tidbits of information in a huge box, some readers (especially those who are pressed for time) are going to pick up on that information as a key highlight, and will not catch a small textual disclaimer on the next page. CRC was doing its best to mislead a large number of readers (those who see the huge box but aren't carefully reading the text).
1.4.2007 1:11pm
Jonathan H. Adler (mail) (www):
r78 --

Also read my final update to the post above, in which I acknowledge that my use of the word "charge" rather than "insinuate" may have been an overstatement. As I wrote there:
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. . . .


JHA
1.4.2007 1:42pm
r78:
The whole import of your criticism is that CRCs accusation is "ridiculous" because the seminar occurred AFTER the ruling. You are saying: Look at what fools these people are. It is obvious that something happening afterwards could not influence something that happened before.

You make a Clintonesque retraction conceding only that you *perhaps* should have used the word "insinuate" rather than "charge."


Okay, lets try that on for size. Suppose you did say "the CRC makes the ridiculous insinuation 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."

Do you really think that is now an accurate and fair statement given the fact that the report clearly state on page 78 that the judges attendance occurred after the decision in question?

If so, you have a pretty odd definition of insinuate.
1.4.2007 5:15pm
r78:
J Doe


Anyone who designs reports like this has to know that when you emphasize a few tidbits of information in a huge box, some readers (especially those who are pressed for time) are going to pick up on that information as a key highlight, and will not catch a small textual disclaimer on the next page. CRC was doing its best to mislead a large number of readers (those who see the huge box but aren't carefully reading the text).

I confess that I have read only pages 77 and 78. I don't think it is fair to call the statements on page 78 a "small textual disclaimer" It was printed in the same size as most of the body text of the report. I think it is more accurate to say that the description on page 78 is the text.

But I suspect you have put your finger on the problem when you talk about someone who "designs" reports. My uninformed guess would be that there was a design or layout person who put together the graphics.

In any event, when someone does a report that specifically states one thing (and put it in normal text) I don't think it is fair to say that they "accuse" (or even insinuate" the opposite because of an ambiguous graphic. After all, the box just lists the number of seminars attended.
1.4.2007 5:24pm
Jonathan H. Adler (mail) (www):
r78 --

So now you admit you haven't read the whole report, when I've noted that the insinuation against Judge Sentelle as author of Florida Audubon is repeated on numerous pages?!? Time and again the report stresses that all of the judges who wrote the opinions discussed attended seminars -- insinuating (if nt chargig) that there is a conneciton between the seminars and the opinions -- and the report uses these text boxes for each subject area to help the reader "keep score" of this fact. I thought you realized this from your persistent comments. Now I know you've been hurling charges without reading the whole report. Sheesh.

JHA
1.4.2007 5:41pm
TME:
Perhaps we ought to outlaw amicus briefs? After all, organized amicus efforts require money, which comes from corporations, organizations, and individuals with an interest in influencing the oucome of the case at hand. So we have monied special interests paying for elaborate lobbying efforts related to particular pending cases, and not a peep from CRC? Perhaps it's only a problem if the briefs are so well drafted that their reading constitutes "leisure"?

What really concerns me are those who, rather than making honest arguments, make disengenuous personal or outcome-based attacks. Throwing around terms like "junket" and characterizing legal decisions as pro-environment or anti-environment (as opposed to legally correct or legally incorrect) is corrosive to our judicial process. I respect groups (whether I agree with them or not) that make honest, strait-forward policy or legal arguments. The others, not so much.
1.5.2007 5:13pm