For the past several years, a small environmental group, Community Rights Counsel (CRC), has been waging a not-so-quiet war against privately funded educational seminars for judges. In June, CRC’s campaign suffered a major setback when a federal judge dismissed its ethics complaint against Danny J. Boggs, chief judge of the U.S. Court of Appeals for the Sixth Circuit.
Since 1998, CRC has waged a public relations assault on judges who have attended seminars sponsored by the Foundation for Research on Economics and the Environment (FREE), the Law and Economics Center at George Mason University, and Liberty Fund, suggesting such programs either bribe or brainwash federal judges.
Personal Attacks Launched
CRC filed ethics complaints against four federal judges who had agreed to serve on FREE’s board of directors to assist in the development of programming and outreach to federal judges. Three of the four judges quickly resigned rather than fight CRC’s allegations.
Judge Douglas H. Ginsburg of the U.S. Court of Appeals for the District of Columbia Circuit explained, “I am not in a position to constantly be correcting the false impressions and calumnies that appear in the press.”
Danny J. Boggs, chief judge of the Sixth Circuit Court of Appeals, did not resign, however, stating he would be “happy to abide” by any judicial ruling on the complaint. That ruling came on June 1, when Judge James Loken of the U.S. Court of Appeals for the Eighth Circuit dismissed CRC’s complaint.
According to Loken, “the fact that many have criticized privately sponsored judicial education does not make it unethical for a judge to support the concept and to participate in organizations that sponsor bona fide educational programs.”
Charges Lacked ‘Factual Foundation’
Loken specifically concluded that many of CRC’s allegations lacked “factual foundation.” More pointedly, Loken wrote CRC’s allegations “typify the character assassination that is all too common in our Nation’s Capital, much of it intended to further the accuser’s legislative agenda.”
According to CRC, exposing federal judges to aspects of economic analysis and critical perspectives on environmental policy threatens the integrity of the judicial system. CRC made this charge in numerous reports and essays and vigorously shopped the story to major media outlets.
CRC’s primary argument has been that allowing judges to attend privately funded educational seminars undermines the appearance of impartiality of the federal judiciary.
“Each year dozens of federal judges were being wined, dined, and indoctrinated at anti-environmental ‘junkets for judges,'” CRC charges on its Web site. These seminars, CRC claims, are “breeding grounds” for anti-environmental “judicial activism.” On these grounds, CRC has sought to prohibit federal judges from attending such expense-paid events.
Education, Balance Cited
Those who have attended FREE conferences have a difficult time recognizing the sinister brainwashing sessions portrayed in CRC’s materials. “I have participated in 168 hours of lectures and discussion at FREE and have never witnessed anything that an observer could interpret as remotely corresponding to that characterization,” wrote noted economist Thomas Schelling earlier this year.
A federal judge called the seminars “the most cogent, informative learning experiences in environmental law and policy offered to federal judges.” An independent review conducted by two former U.S. Attorneys who served under President Bill Clinton likewise concluded the seminars present “a varied, balanced, intellectually challenging and rigorous series of educational opportunities” that are “valuable” for the participants.
Such Seminars Are Common
Privately funded education seminars are nothing new, and judicial participation in such conferences has been repeatedly reviewed and approved. In an advisory opinion first issued in 1980, revised and reissued in 1998, the U.S. Judicial Conference Codes of Conduct Committee stressed that “the education of judges in various academic disciplines serves the public interest.”
It is not a problem if a given lecture or program stresses “a particular viewpoint or school of thought,” the opinion noted, as “judges are continually exposed to competing views and arguments and are trained to weigh them.”
Trend May Reverse
For a time it appeared CRC’s initial campaign might be successful. The high-profile media reports and subsequent congressional inquiries into judicial conferences discouraged some judges from attending nongovernment seminars, which represent a large share of judges’ educational opportunities.
With the dismissal of CRC’s complaint, that trend may now reverse.
Jonathan H. Adler ([email protected]) is associate professor and associate director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law. This article is adapted from a longer article that appeared on National Review Online.