Junkets for Judges: At the risk of becoming a one-horse blogger, I think it's worth commenting on the efforts of special interest groups, especially those on the right, to influence American federal judges. I've already discussed the left's failure to fund think-tanks. Here's one place where that failure really hurts. Consider this report from the Community Rights Counsel (CRC):

[R]ight-leaning, anti-regulatory organizations dominate private judicial education. Indeed, the three organizations hosting the most trips—the Law and Economics Center (LEC), the Foundation for Research on Economics and the Environment (FREE) and Liberty Fund (collectively “the Big Three”), with 246, 194 and 100 trips reported by judges, respectively—share a remarkably similar conservative/libertarian ideology and structure their seminars to advance this ideology.

Reported attendance at Big Three seminars increased significantly between 1992 and 1998, with a record 88 judges taking trips in 1998. With about 800 active judges at any given time, this means that about 10% of the federal judiciary takes a Big Three trip each year.

A couple years ago, ABC's 20/20 did a story about a group of federal judges who were vacationing in Tuscon under the aegis of an “educational” seminar sponsored by the Law and Economics Center of George Mason University. That story, along with documentation from the CRC, prompted Senator John Kerry and Senator Russ Feingold to propose the Judicial Education Reform Act of 2000, which would have would have prohibited “seminar gifts” and established a Judicial Education Fund for the payment of reasonable travel and accommodation expenses incurred by judges attending “panel discussions, conferences, colloquia, symposia, and other similar events.” The Judicial Reform Act was never enacted. Indeed, its most prominent critic was Chief Justice Rehnquist. At a meeting of the American Law Institute, Rehnquist took the unusual step of attacking a piece of pending legislation. Setting aside the question of whether it was appropriate for Rehnquist to comment on the issue, I want to ask whether his criticisms are valid. Here's his first argument:

One could easily get the impression . . . that the real problem is too many judges playing golf in the middle of the afternoon in Tucson in February. There was a time when federal judges worked less than they do now; I remember many years ago a judge referring to an appointment to one of the courts of appeals as being a "dignified form of semi-retirement." If that was ever true, it long ago ceased to be. The pressure to keep up with ever-increasing dockets requires and receives hard work from these judges. And so far as the locale of any seminar is concerned, does anyone really think that a seminar in Tucson in August or in Milwaukee in January would attract as many participants if the scheduling were reversed? If you do think that, I suggest you schedule the next meeting of the ALI here in Washington for the middle of August.

Just in case we thought federal judges were really interested in being "educated," Rehnquist sets the record straight. They're only interested in being educated at seasonal resorts. Seminars in climate-controlled hotels aren't worth the trouble.

Sarcasm aside, though, the problem with this first reply is that it doesn't meet the main objection to junkets for judges. Rehnquist thinks that the public might worry that federal judges aren't working hard enough. But the issue isn't that federal judges take time off for vacations. The issue is that those vacations are funded by a handful of special interest groups who are paying nicely for access to federal judges. Judges get to play their 18-holes, but only on the condition that they attend seminars geared toward promoting the agenda of the group sponsoring the trip. The central charge against junkets for judges is essentially one of corruption. Judges get extravagant vacations sponsored by corporations and foundations seeking to advance their interests. The bottom line is: no "education," no vacation. Which just means: no access, no money. Rehnquist simply doesn’t meet the objection that junket trips and other "educational" gifts undermine the appearance of judicial propriety and that, consequently, they diminish public trust and confidence that judges will make impartial decisions.

Rehnquist has a second, and more important, argument based on the freedom of speech:

The notion that judges should not attend private seminars unless they have been vetted and approved by a government board is a bad idea. It is contrary to the public interest in encouraging an informed and educated Judiciary, and contrary to the American belief in unfettered access to ideas.

Now, depending on how trips for judges are regulated, I agree that there might indeed be free speech concerns. But even if we reject the idea of regulating the content of educational seminars for judges, legislation could be tailored to prohibit judges from accepting reimbursements over reasonable levels to cover the cost of transportation and accommodation to such seminars. (If you really want to go to that seminar in Hawaii, maybe you need to pay for it yourself.) No more rounds of golf on the dime of the Scaife Foundation. I don't see any problem with judges attending Liberty Fund seminars (disclosure: I've been to one myself). But I do see a problem when judges accept large gifts in the form of what are essentially paid vacations.

At the moment, there is no pending legislation on this issue--and hardly any public discussion about it. Which raises the question: what should the left do about it? It seems to me that there are two options. The first is to work toward reintroducing something like the Kerry-Feingold legislation--perhaps with some modification to meet legitimate concerns about the freedom of speech. Second, and as you might expect, I think left and center-left foundations should sponsor their own "educational" seminars. Some people on the left will probably want to take the moral high ground here by continuing to criticise federal judges who go on junkets trips. But, short of successful legislation, I think the better strategy is for the left to get itself into the game. And, to come back to my earlier posts, that takes big money.

The Community Rights Counsel has done some very good work on this issue. Its report, available here, is a must read. Its called Nothing for Free: How Private Judicial Seminars Are Undermining Environmental Protections and Breaking the Public's Trust. Former Chief Judge Abner Mikva wrote the forward for the CRC report, but he also submitted this article to the New York Times. Also courtesy of the CRC, you might want to read the transcript of ABC's 20/20 story. ABC News did a write-up on their televsion segment called "Lobbying the Judiciary." Finally, if you want to check in on your favorite federal judge, the CRC keeps a database that can be searched by organization, judge, court, and year (from 1987 - 1998).