Between 1992 and 2000 Judge Brooks Smith took a total of
12 privately-funded "junkets for judges". For
a list of trips that he has taken, click
here. Most judges shun these controversial trips altogether;
only four judges in America have taken more trips over the
same period than Judge Smith. These trips have been valued
at more than $37,000. They are funded by oil, gas, and pharmaceutical
companies and conservative foundations that are simultaneously
bankrolling federal court litigation. There
have been numerous cases where Judge Smith has presided
over companies that financed junkets that he attended. To
view a list of such cases, click
here.
Reprinted below is a letter
Community Rights Counsel sent to the Senate Judiciary Committee
chronicling the appearance problem stemming from Judge Smith's
private travel. Legal ethics experts Stephen Gillers and
Monroe Freedman have written opinion letters to the Senate
Judiciary Committee echoing Community Rights Counsel's conclusions.
Click here to see
the Gillers letter in PDF format; click
here to see the Freedman letter.
May 17, 2002
The Honorable Patrick J. Leahy
Chairman
Senate Judiciary Committee
United States Senate Washington, D.C. 20510
The Honorable Orrin G. Hatch
Ranking Member
Senate Judiciary Committee
United States Senate
Washington, D.C. 20510
Dear Senators Leahy and Hatch:
I am writing to comment on the written responses submitted
by Judge D. Brooks Smith to questions posed by Senator Russ
Feingold concerning Judge Smith's attendance at privately-funded
judicial seminars. In summary, Judge Smith's assertions
that (1) he had no obligation to investigate the corporate
and foundation sources of funding of his privately-funded
trips and (2) that he had no obligation to report the value
of the seminar gifts, cannot be reconciled with the ethical
obligations imposed under the Code of Conduct for United
States Judges.
Overview of Issue
Privately-funded judicial seminars are enormously controversial.
Senators John Kerry (D-MA) and Russ Feingold (D-WI) have
introduced legislation to ban these trips. Abner Mikva,
the former chief judge of the DC Circuit, has decried the
"perception of dishonesty that arises when judges attend
seminars and study sessions sponsored by corporations and
foundations that have a special interest in the interpretation"
of legal issues. The editorial boards of more than 30 major
papers including The New York Times, The Washington Post,
and USA Today have condemned the trips. As the Post concluded:
"when * * * judges take educational vacations on the
dime of private groups, they do so at the expense of the
judiciary's reputation for impartiality, even if not impartiality
itself."
Because they are so controversial, most judges shun these
"junkets for judges" altogether. Between 1992
and 2000, only 4 federal judges in America took more trips
than Judge Smith. During this time period, Judge Smith took
twelve trips to resorts in places like Hilton Head, South
Carolina and Sanibel Island, Florida. These trips have been
valued at more than $37,000. They are funded by oil, gas,
and pharmaceutical companies and conservative foundations
that are simultaneously bankrolling federal court litigation.
The Appearance Problem Stemming From Judge Smith's Trips
A review of the intersection between one of Judge Smith's
trips, one of its corporate funders, and two of Judge Smith's
more controversial opinions plainly illustrates why these
trips are so problematic.
In June 1993, Judge Smith spent a week at a resort in Hilton
Head, South Carolina attending a seminar on "Risk,
Injury, and Liability" conducted by the Law and Economics
Center (LEC), a free-market think tank housed at George
Mason University. One judge attending this trip with Judge
Smith valued this trip at $2,754. In the Center's words,
this risk seminar "examines the role of private insurance,
as an alternative to civil liability, in reducing risks
and allocating their burden." The seminar "demonstrates
the superiority of a legal system that assigns liability
to those best able to avoid injury over a system that seeks
only to spread losses by assigning them to the 'deepest
pockets.'"
Pending before Judge Smith in June 1993 were two important
products liability cases. In Metzgar v. Playskool, Judge
Smith granted summary judgment to Playskool in a case brought
by the parents of a 15-month old child who died choking
on a Playskool block. Less than three months after learning
about "alternatives to civil liability" and ways
to "assign liability to those best able to avoid injury"
in Hilton Head, Judge Smith decided that the choking risk
was so obvious that no warning was necessary and that, because
only 11 children die annually from choking on small toys,
there was not a "reasonable threshold of risk"
justifying imposing liability on Playskool. Judge Smith's
ruling was reversed unanimously and rather pointedly by
three Republican appointees to the Third Circuit.
The second case is even more disturbing because it involved
Medtronic, one of LEC's funders in 1993. Ronald Gerber sued
Medtronic alleging that his Medtronic pacemaker was defective
and its failure required him to undergo life-threatening
surgery. In May 1994, Judge Smith granted summary judgment
to Medtronic, finding that Mr. Gerber's state law tort claims
were "preempted" by federal law. Kip Viscusi,
a lecturer for two full days at Judge Smith's Hilton Head
risk seminar, wrote a paper that same year entitled Deterring
Inefficient Pharma-ceutical Litigation: An Economic Rationale
for the FDA Regulatory Compliance Defense, arguing in favor
of such preemption. In Viscusi's words: "courts should
be prohibited from co-regulating pharmaceuticals through
the award of tort damages." The Supreme Court ruled
two years later in a case called Lohr v. Medtronic that
the type of state tort claims at issue in Gerber were not
preempted by federal law.
Ethical Canons Demand Consideration of the Sources of
Funding of LEC Trips
In response to questions posed by Senator Feingold, Judge
Smith asserts that because LEC is "sponsored"
by the George Mason University School of Law, "no further
inquiries into sources of funding" was required. Apparently
Judge Smith believes that judicial ethics rules would permit
him to accept a LEC seminar held at a resort and worth thousands
of dollars even if it was (1) funded entirely by a corporation
appearing before him and (2) concerned the precise topic
at issue in the litigation, as long as LEC has the blessing
of a law school.
This is not a plausible interpretation of the Code of Conduct
for United States Judges. Canon 2 of the Code of Conduct
for United States Judges requires judges to "act at
all times in a manner that promotes public confidence in
the integrity and impartiality of the judiciary." Commentary
for the Code clarifies that "[a] judge must avoid all
impropriety and appearance of impropriety. A judge must
expect to be subject of constant public scrutiny. A judge
must therefore accept restrictions that might be viewed
as burdensome by the ordinary citizen and should do so freely
and willingly."
Interpreting the judicial canons in Advisory Opinion 67
("AO 67"), the Judicial Conference's Committee
on Codes of Conduct has declared that it would be "improper
to participate in such a seminar if the sponsor, or source
of funding, is involved in litigation, or likely to be so
involved, and the topics covered in the seminar are likely
to be in some manner related to such litigation."
Judge Smith's interpretation would effectively take the
words "source of funding" out of AO 67. His answer
is directly contradicted by the Second Circuit's opinion
in Aguinda v. Texaco, 241 F.2d 194, 206 (2d Cir. 2001),
which states that "we caution judges that recusal may
be required after accepting meals or lodging from organizations
that may receive a significant portion of their general
funding from litigants or counsel to them -- whether or
not in connection with an unbalanced program." Most
importantly, it is impossible to say that a judge "promotes
public confidence" in the judiciary, as required by
Canon 2, when a judge accepts a corporate-funded seminar
at a resort location and then returns to dismiss a claim
brought against a corporate source of funding of the seminar,
on grounds discussed at the seminar.
Ethical Rules Required Judge Smith to Disclose the Value
of his Seminar Gifts
Judge Smith has taken 12 private judicial seminars over
the last 9 years and never reported the value of any of
these trips. Despite testifying before the Senate Judiciary
Committee in February that he "has studied [AO 67]
and "been guided by [AO 67]," Judge Smith plainly
violated the command of AO 67 by failing to report the value
of his numerous trips. AO 67 defines "tuition, room
and board" at private seminars as "gifts"
and declares that "[j]udges who accept invitations
to participate in such seminars, having been satisfied that
no impropriety or appearance thereof is present, must report
the reimbursement of expenses and the value of the gift
on their financial disclosure forms."
Judge Smith has responded to Senator Feingold's questioning
regarding his failure to disclose the value of his trips
by asserting that, in violating AO 67, he was just following
the directions given to him by the Financial Disclosure
Office. This does not excuse the failure to comply with
AO 67. The Judicial Conference's Code of Conduct Committee
provides the definitive word on the ethical propriety of
attending private judicial seminars. It has repeatedly reissued
AO 67 and never wavered from its demand that judges report
the value of these trips if they decide to accept invitations
to participate in these seminars. While the Financial Disclosure
Office may have the final word about the mandates of federal
financial disclosure law, it cannot trump the Code of Conduct
Committee's interpretation of the demands of the judicial
canons. Many judges have followed AO 67 and reported the
value of these trips even in the face of the confusing instructions
provided by the Disclosure Office. Judge Smith has chosen
to ignore the ethical mandates, instead complying narrowly
with the minimum disclosure required by law.
As importantly, Judge Smith fails even to recognize that
there is a severe tension between the mandates of AO 67
and the Disclosure Office's instructions regarding reporting
the value of the trips. In responding to Senator Feingold's
questions, Judge Smith should at least have been willing
to recognize the conflict between AO 67 and the Disclosure
Office's instructions and commit to ensuring that the Code
of Conduct Committee and the Disclosure Office resolve this
conflict. Instead, Judge Smith ignores the conflict and
asserts, erroneously, that the Disclosure Office's interpretation
is "controlling" and that therefore he did everything
right. More than this can be demanded of a judge seeking
a lifetime appointment to the federal appellate bench.
I greatly appreciate your consideration of these views.
Sincerely yours,
Douglas T. Kendall
Enclosures
cc (w/enclosures): Senate Judiciary Committee Members
