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Los Angeles Daily Journal Extra
Monday, December 2, 2002
Joan Osterwalder
The hotel, meals and plane ticket are paid for,
luring judges to vacation spots from San Diego to the Gulf
of Mexico. All the jurists have to do is attend a few seminars
on topics such as business law, property rights and constitutional
history. The sessions are given at the locales often by conservative
organizations such as the George Mason Law & Economics
Center and the Foundation for Research on Economics and the
Environment.
Critics say the junkets come at the cost of judicial impartiality.
Law professors, public interest attorneys and consumer advocates
contend that the seminars are designed to indoctrinate judges
with the corporate point of view, which could sway rulings
and opinions from the bench in consumer, environmental and
product liability lawsuits.
At the very least, they say, there is the appearance that
judges are being bought for the price of a vacation.
"I don't think most judges get brainwashed by a free
golf game, but it looks like it," says Abner Mikva, a
visiting law professor at the University of Chicago and former
White House counsel to President Clinton. "The perception
of justice is almost as important as the reality of justice."
But the seminar sponsors and their defenders, including some
judges, say the critics have it wrong. The programs, while
generally conservative in their curricula, help the judges
understand complex issues that crop up in court battles, they
contend. They also say that plenty of liberal-leaning seminars
are available to jurists.
"These trips are burdens rather than benefits for these
judges," says Chapman University law professor John Eastman,
who is director of the Claremont Institute Center for Constitutional
Jurisprudence. "I would encourage more of these kinds
of training programs, not less."
The seminars have been around for decades in some cases.
The most heavily attended seminars for federal judges are
hosted by the George Mason Law & Economics Center in Virginia,
the Foundation for Research on Economics and the Environment
in Montana, and the Liberty Fund in Indianapolis, all of which
are funded by conservative groups.
The critics, however, say these seminars are unnecessary
because enough educational opportunities don't give the appearance
of corporate America lobbying the judiciary.
For example, the Federal Judicial Center, created by Congress
in 1967, offers three-dozen programs a year, ranging from
orientation sessions to seminars on environmental law, intellectual
property and scientific issues.
Up to 175 judges attend each program, which is funded by
tax dollars. Government rates apply to the judges, who stay
in such places as the historic U.S. Grant Hotel in San Diego.
"They are totally independent," Erwin Chemerinsky,
constitutional law professor at the University of Southern
California, says of the government-sponsored seminars. "I
think it's very dangerous when it's paid for by people who
are going to be litigants with an interest before their courts."
Public Citizen, a national consumer advocacy group, says
corporations aren't charitable institutions and wouldn't spend
money to put on seminars without the goal of influencing the
judiciary to view them more favorably.
"It's quite bizarre to essentially have litigants in
the system to pick up the tab," says Brian Wolfman, a
staff lawyer with the organization. "I think it's a bad
idea."
The Association of Trial Lawyers of America has no official
position on the issue, but its spokesman, Carlton Carl, says
some seminars are "clearly biased" and receive funding
from anti-consumer and anti-environmental sources.
"It just so happens that some of the more biased presentations
tend to [be] in resort settings, where it's not just presentations
... but lobbying of judges in social situations," Carl
says. "We think the judiciary should be independent."
In 2000, U.S. Sens. Russell Feingold and John Kerry, Democrats
from Wisconsin and Massachusetts, respectively, introduced
legislation that would have barred judges from attending privately
funded seminars. It died in committee, however, because of
Republican opposition.
The bill was reintroduced earlier this year but has been
overshadowed by post-Sept. 11 events and the need to select
judicial nominees, according to Kerry's office.
Kerry was re-elected to another six-year term in November.
He is contemplating running for the presidency in 2004.
The American Bar Association is considering drafting an opinion
on whether participating in the programs is ethical.
Sponsors say the programs are growing in popularity. They
say the seminar packages are worth up to $3,000, but critics
say the total cost of the trip can exceed $7,000.
The seminar destinations offer activities ranging from golfing
and horseback riding to white-water rafting and fishing. Judges
stay in places such as the Elkhorn Ranch in Montana or condos
on Sanibel Island, Fla. A two-bedroom condo in the latter
destination costs as little as $112 a night in December, according
to organizers.
Judges who attended the seminars caution against being fooled
by the exotic locales and fun activities.
Judge Thomas P. Griesa of the U.S. District Court for the
Southern District of New York says he has attended 10 seminars
hosted by the George Mason Law & Economics Center in such
places as Key Biscayne, Fla., Tucson, Ariz., and Santa Fe,
N.M., since 1977.
"They are a lot of work. Anyone who thinks we're down
having what is called a junket is absolutely misguided,"
Griesa says. "I might take a walk along the beach, and
I would be thinking about statistics."
Griesa says judges would boycott seminars if they thought
they were being indoctrinated.
"I would regard it as an insult," he says. "I
would not stay."
Justice Thomas E. Hollenhorst of the 4th District Court of
Appeal in Riverside says he nearly did that. Hollenhorst attended
one of the first seminars put on by the now-defunct Law and
Organizational Economics Center, which was funded by corporate
interests, including Koch Industries, in 1996.
He says he thought a speech criticizing the justice system
for allowing allegedly frivolous silicon breast-implant cases
to proceed was one-sided and "almost walked out."
But Hollenhorst says the two-week program, held one week
in Kansas and the next week in Florida, helped him better
understand arguments from attorneys in contract remedy, torts,
real property and governmental cases.
"It's put arguments in a better context and probably
made me a little more aware of the global choice of remedies
rather than maybe look at existing case law," he says.
Hollenhorst brushes off critics. If people were so worried
about a brainwashed judiciary, then reading the Wall Street
Journal would be inappropriate, as well, he says.
"I really have some profound resentment of people who
want to edit what I can listen to, hear, read or see,"
Hollenhorst says. "I think I'm a discerning enough listener
and jurist where bad ideas get scrapped and good ideas get
considered."
U.S. District Judge Robert J. Kelleher in Los Angeles says
he attended three George Mason Law & Economics Center
seminars and found them "thoroughly worthwhile."
The economics training has helped him evaluate damages in
complex securities cases, he says.
"I had no impression whatsoever that my mind was being
infiltrated," Kelleher says. "I don't know who it
was who was paying that was asking me to do anything, if anything."
The majority of attendees are Republican-appointed judges,
according to a 2000 report by the Community Rights Counsel,
a public interest law firm based in Washington, D.C.
The group represents state and local governments to help
save environmental protections from court challenges.
The Community Rights Counsel reviewed the financial disclosure
forms of all active federal judges between 1992 and 1998 and
found that 10 percent travel annually to one of the seminars
of the George Mason Law & Economics Center, the Foundation
for Research on Economics and the Environment and the Liberty
Fund. The organization also concluded that one out of nine
judges failed to report the trip on his or her financial disclosure
form. The group will release an updated report early next
year.
Doug Kendall, the Community Rights Counsel's executive director,
says he knows of no left-of-center equivalent to the seminars
funded by conservative groups. The Sierra Club or American
Civil Liberties Union, for example, doesn't sponsor such trips.
After the Community Rights Counsel issued its report, the
Kerry-Feingold bill was proposed.
The legislation would have barred federal judges from accepting
"anything of value in connection with a seminar."
A government board would have approved seminars that "maintain
the public's confidence in an unbiased and fair-minded judiciary."
The current guidelines instruct judges to evaluate the propriety
of attending a seminar on a case-by-case basis.
"Any American should know if they walk into a court,
they have every bit of an opportunity to make their case as
everyone else," says David Wade, a spokesman for Kerry's
office. "If judges are wined and dined by powerful interests,
it undermines the average citizen's sense of basic fairness."
Funding for the programs come from conservative groups such
as the John M. Olin Foundation, founded by inventor and philanthropist
John M. Olin, a promoter of free enterprise and the capitalist
system; the Sarah Scaife Foundation, chaired by Republican
billionaire Richard M. Scaife; and the Claude R. Lambe Charitable
Foundation, controlled by Koch Industries Inc.; as well as
corporate donors. But not all of the seminar sponsors, such
as the George Mason Law & Economics Center, disclose their
sources of income.
The George Mason Law & Economics Center has been offering
its weeklong seminars since 1976. Seven hundred judges, including
U.S. Supreme Court Justices Ruth Bader Ginsburg and Clarence
Thomas, have attended the courses. The center says it doesn't
pay for entertainment or spousal expenses.
For 2003, the center is offering nine seminars on topics
ranging from "Science in the Courts" to "The
Economics of Corporate Law," with lectures on "Corporate
Structure, the Market for Corporate Control, Shareholder Litigation."
The Foundation for Research on Economics and the Environment
holds five seminars a year. The weeklong programs, inaugurated
in 1992, focus on economics. Attendees are required to read
the foundation's book, "A Federal Judge's Desk Reference
to Environmental Economics," before arriving.
The Liberty Fund says only two of its 180 annual programs
are for judges. The four-day seminars, offered since 1975,
provide teachings on the principles of the Founding Fathers.
The foundation's mission is to "encourage the study
of the ideal of a society of free and responsible individuals."
Judges reported attending conferences on subjects such as
"Liberty and the Separation of Powers," "Freedom
and Federalism," and "Law, Liberty and Responsible
Individuals," according to the Community Rights Counsel.
The Liberty Fund is funded by an endowment left by Pierre
F. Goodrich, a libertarian industrialist.
The University of Kansas created a similar program for state
judges in 1995. The seed money for the Law and Organizational
Economics Center came from the philanthropic wing of Koch
Industries, the nation's second-largest privately held corporation
that has operations in oil and gas, agriculture and chemicals.
One thousand judges participated in the two-week seminars
until the program was shut down earlier this year, after moving
to Chapman University in 2001.
The program was most popular among judges from California,
according to its founder, Chapman University economics professor
Henry Butler, who brought it with him when he left Kansas
for Orange County last year. Butler says he decided to suspend
it because it was too time-consuming.
"We just decided that we didn't want to run it anymore,"
Butler says. "Its popularity did not drop at all."
The seminar hosts say nothing about the funding or content
of the programs is inappropriate.
John H. Baden, founder and chairman of the Foundation for
Research on Economics and the Environment, says the Community
Rights Counsel report was "flat wrong" in attempting
to convey the impression that judges are being unduly influenced.
Baden says funding for his seminars comes from "dead-man
foundations," or foundations whose benefactor is dead.
"Someone who is deceased is most unlikely to appear
before a federal judge," Baden says. "I'm acutely
aware of the sensitivity the judges have for propriety and
conflict of interest."
Baden says the programs his foundation offers are tailored
to the interests of judges and not corporations. Judges are
polled about their interests at the seminars, he says.
Butler, who ran the Law and Organizational Economics Center,
says the seminars steep judges in the basic principles of
economics, finance, accounting, statistics and scientific
method, which are taught at every university. He says they
help judges distinguish better between valid and invalid arguments
in complex cases and determine the credibility of experts.
"Judicial ignorance of these important subjects means
that litigants do not have a level playing field," Butler
says. "The ordinary consumer benefits dramatically by
having the court system be fair."
The seminars also allow judges to ask questions they would
be too embarrassed to ask in a courtroom, Butler says. He
also defended the judges' leisure activities.
"You need to give them some time to breathe the air,"
Butler says. "The classroom is an intense learning experience."
"They're pro-education," says Liberty Fund Chairman
T. Alan Russell of his programs. "None of these are designed
... to be political."
Russell says his organization hosts the same programs on
topics such as economics, literature and opera for high-school
teachers, journalists and businesspeople.
Frank Buckley, the head of the George Mason Law & Economics
Center, was unavailable for comment, citing a busy schedule.
Chief Justice William H. Rehnquist also spoke out in favor
of expenses-paid trips offered by private groups. The seminars
offer valuable education that is unavailable elsewhere, Rehnquist
said in a speech to the American Law Institute last year.
"The notion that judges should not attend private seminars
unless they have been vetted and approved by a government
board is a bad idea," Rehnquist said.
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