| Remarks by Chief Justice
William H. Rehnquist
American Law Institute's Annual Meeting
The Mayflower Hotel, Washington, D.C.
Monday, May 14, 2001
Thank you Traynor for the kind introduction. This was to be Charlie
Wright's last meeting as President of the American Law Institute and I
know that the Institute and our profession miss him. I thought I would
speak today about one of Charlie's favorite subjects: legal education.
Last July, legislation was introduced in Congress that would sharply
limit the educational opportunities available to federal judges. The bill
was proposed after a private organization issued a report critical of
judges' attending private educational seminars at the expense of the
seminar sponsors. Known as the Kerry-Feingold bill, it would prohibit
federal judges from accepting "anything of value in connection with a
seminar." The bill would give the Board of the
Federal
Judicial
Center
the power to authorize government funding for judges to attend only
"seminars that are conducted in a manner so as to maintain the
public's confidence in an unbiased and fair-minded judiciary."
Critics of privately funded seminars refer to them as
"junkets"; the television program 20/20 recently aired a segment
about a seminar held last winter at a resort in
Tucson
that was attended by a number of federal judges. One could easily get the
impression from this presentation 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.
The principal vice of the Kerry-Feingold bill is that it lays down a
vague standard: "The seminar must not be conducted in a fashion that
might undermine 'the public's confidence in an unbiased and fair-minded
judiciary'" and it confides to a government board -- the board of the
Federal Judicial Center -- the obligation to administer this standard --
an obligation which the Board has firmly requested not be placed upon it.
The approach of the Kerry-Feingold bill is antithetical to our American
system and its tradition of zealously protecting freedom of speech.
Justice Holmes famously noted (in his dissent in Abrams v. United
States, 250 U.S. 616, 630 (1919)), "that the ultimate good
desired is better reached by free trade in ideas -- that the best test of
truth is the power of the thought to get itself accepted in the
competition of the market . . . . [W]e should be eternally vigilant
against attempts to check the expression of opinions that we loathe . . .
. "
In his essay "On Liberty," John Stuart Mill pointed out the
risks inherent in suppressing ideas:
But the peculiar evil of silencing the expression of an opinion is,
that it is robbing the human race; posterity as well as the existing
generation; those who dissent from the opinion, still more than those who
hold it. If the opinion is right, they are deprived of the opportunity of
exchanging error for truth: if wrong, they lose, what is almost as great a
benefit, the clearer perception and livelier impression of truth, produced
by its collision with error.
Existing legal and ethics provisions quite properly restrict judges
from accepting benefits from parties to litigation before them and provide
for disqualification in any instance where a judge's impartiality might
reasonably be questioned. The current financial disclosure requirements
also ensure that information regarding attendance at private seminars at
the expense of the seminar sponsors is readily available to the public.
Both the Judicial Conference of the
United States
and the Board of the
Federal
Judicial
Center
are on record as opposing the Kerry-Feingold bill. And the FJC Board has
pointed out that the legislation would jeopardize the
Federal
Judicial
Center
's ability to cosponsor seminars with law schools and other organizations.
The legislation is also opposed by the Federal Judges Association and the
deans of a number of law schools.
The
Federal
Judicial
Center
has done an exceptional job providing continuing education for federal
judges and court personnel. But the Center cannot provide education to
every federal judge each year on the wide array of subjects that judges
confront every day, especially issues that are primarily local. And the
FJC Board should not be asked to decide for individual judges which
seminars they may attend. As Adam Smith explained in the context of
economic regulation 225 years ago,
[E]very individual, it is evident, can, in his local situation, judge
much better than any statesman or lawgiver can do for him. The statesman,
who should attempt to direct private people in what manner they ought to
employ their capitals, would . . . assume an authority which could safely
be trusted, not only to no single person, but to no council or senate
whatever, and which would no-where be so dangerous as in the hands of a
man who had folly and presumption enough to fancy himself fit to exercise
it.
Seminars organized by law schools, bar associations and other private
organizations are a valuable and necessary source of education in addition
to that provided by the
Federal
Judicial
Center
. The effect of the Kerry-Feingold bill would be dramatically to restrict
the information made available to federal judges through seminars by
requiring that the content of that information and the identities of its
presenters be weighed against a prediction of public confidence in
fair-mindedness. Who knows whether seminars sponsored by one or another
law school, or even by this body -- the ALI -- would pass that test?
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. Thank you.
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