Posted by Jonathan Adler:
Judicial Seminars -- Dowling Complains; Adler Responds:
http://volokh.com/archives/archive_2006_12_31-2007_01_06.shtml#1167835939
In my [1]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 [2]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 [3]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, [4]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 [5]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 [6]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.
[7]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 [8]here.
The Federal Advisory Committee on Codes of Conduct of the Judicial
Conference�s [9]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.
References
1. http://volokh.com/archives/archive_2006_12_24-2006_12_30.shtml#1167500289
2. http://www.nationalreview.com/adler/adler200506230755.asp
3. http://www.communityrights.org/PDFs/LT7-18-05.pdf
4. http://www.tripsforjudges.org/crc.pdf
5. http://www.tripsforjudges.org/nothingforfree.html
6. http://www.free-eco.org/pdfs/Randolph.pdf
7. http://www.communityrights.org/PDFs/Loken6-1-05.pdf
8. http://www.free-eco.org/evaluations.php
9. http://www.uscourts.gov/guide/vol2/67.html
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