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SAN FRANCISCO - Critics have found plenty in California Supreme
Court Justice Janice Rogers Brown's rulings and speeches to
brand her as a conservative ideologue.
But as the U.S. Senate weighs Brown's nomination to the
nation's most prestigious federal appellate court, it might
help to understand where she comes from, politically speaking,
by looking at her off-the-bench activities as a student.
If Brown is partly a product of her schooling, her intellectual
development didn't end with her economics degree from Sacramento
State and her law degree from UCLA in 1977, at which point
she still considered herself a liberal.
Since joining the state's highest court in 1996, Brown has
ventured well beyond the standard continuing-education fare
for state judges, attending privately funded seminars sponsored
by conservative organizations on subjects ranging from how
to interpret the Constitution to how to apply economics to
legal disputes.
In accepting these invitations during her formative years
as a jurist, Brown stepped into a wider debate that continues
today.
Some question whether a judge belongs at such seminars,
saying they appear to be pushing an agenda, while others defend
them as legitimate outlets for judges to broaden their intellectual
horizons.
Brown's studies have twice taken her on expense-paid trips
to resort islands in south Florida. In May 1997, she traveled
to Key West for a three-day conference jointly hosted by an
Indiana-based libertarian foundation called the Liberty Fund
and the Center for Judicial Studies at Claremont McKenna College,
a small, conservative school outside Los Angeles whose most
famous alumni include Richard Nixon, Newt Gingrich and Pete
Wilson.
In 1999, Brown again hit the road, first going to the University
of Kansas and then to Sanibel Island in the Gulf of Mexico,
where she received tutoring in free-market economics in a
program popular with state judges that was heavily underwritten
by conservative foundations and corporations.
Complicating the picture, Brown more recently has shifted
back into the academic mainstream and is now, at age 54, completing
a master's degree in judicial studies through one of the nation's
leading public law schools at the University of Virginia,
where she spent six weeks each of the last two summers along
with several other appellate judges from California.
Brown does not grant interviews to reporters, but friends
and associates commend her commitment to higher learning and
say it would be an insult to suggest that such an independent
judge could be indoctrinated with conservative dogma.
No one has accused Brown of violating any statutes or ethics
rules by participating in privately funded seminars. But critics
from the left say they raise questions about what judges bring
back to the bench.
"This is the sort of thing where activists go to train
in how to advance a cause," said James Wheaton, an Oakland
lawyer who is president of the Environmental Law Foundation
and senior counsel to the First Amendment Project. "Judges
have no place as eager students as part of somebody's movement."
The 1990s proliferation of privately funded seminars for
judges, some held at luxury resorts and most sponsored by
conservative groups, attracted a spate of negative publicity
at the end of the decade, prompting legislation in Congress
to prohibit them.
Sen. Patrick Leahy, D-Vermont, minority co-chairman of the
Judiciary Committee, is sponsoring a bill that would bar federal
judges from attending private seminars unless they are approved
and paid for by the Federal Judicial Center, the federal bench's
headquarters for government-sponsored continuing education.
Leahy's bill, which has yet to be heard in committee, also
would impose strict disclosure requirements for sponsors and
presenters at private seminars.
Federal bench and bar groups and the U.S. Judicial Conference
oppose such legislation on the grounds that it would deprive
judges of valuable educational forums that are already governed
by ethical guidelines.
The California Judicial Conduct Handbook says judges can
attend private seminars as long as they don't create an appearance
of impropriety.
"Only if the nature of the organization or the event
would cast reasonable doubt on the judge's ability to be impartial
is there is a problem," handbook author and former Los
Angeles Superior Court Judge David Rothman wrote. "Such
events can assist judges in the performance of their duties
and prevent them from becoming isolated in their communities."
About a year after she was appointed to the high court by
Wilson, Brown joined two other California Supreme Court justices,
Ming W. Chin and Marvin Baxter, at a Liberty Fund seminar
on constitutional interpretation and the judiciary.
Community Rights Counsel, a Washington, D.C., liberal advocacy
group, put the media's spotlight on the Liberty Fund in 2000,
when it reported that the fund was one of three conservative
organizations that together paid for 237 federal judges to
attend more than 500 seminars, many at pricey resorts. (The
"Nothing for Free" report, gleaned from financial
disclosure forms over a six-year period, did not focus on
state judges.)
The Liberty Fund is sometimes confused with the Liberty
Federation of Virginia, which had formerly been known as the
Moral Majority Foundation. Actually, the Liberty Fund was
founded in 1960 by Indianapolis industrialist Pierre Goodrich
to promote libertarian and conservative ideals.
A Web site for the Liberty Fund describes it as a tax-exempt
education foundation that does not engage in politics or political
action. President and CEO Chris Talley said the fund has sponsored
some 1,300 round-table discussions nationwide "to foster
a discussion about liberty and individual freedom" for
early-career professionals in a variety of occupations. He
said that only 16 seminars have been convened specifically
for judges, none of which were publicly advertised.
"We try to get a balance of views among the participants
so that we have a good discussion," Talley said. "The
readings are selected to provide all sides of the issues and
they don't have any particular bent to them."
The Daily Journal confirmed the identities of nine of the
16 participants in the Key West seminar, including the three
Republican-appointed justices who make up the conservative
wing of the California Supreme Court and half a dozen federal
judges appointed by Republican presidents.
The Claremont McKenna political science professor who organized
the conference and invited the judges, Ralph Rossum, did not
return phone calls.
In "Nothing for Free," Community Rights Counsel
found that those attending Liberty Fund seminars, with titles
such as "Freedom and Federalism" and "Liberty
and the Meaning of Rights," were almost exclusively Republican-appointed
judges.
Community Rights Counsel executive director Doug Kendall
said the Liberty Fund seminars, with no backing from corporate
donors, are not as objectionable as some of those sponsored
by business interests that frequently appear in court as litigants.
"But it's still a large gift from an organization that
is using this education to advance a particular legal agenda,
and the fact that the benefactor is dead and not a large corporation
improves the situation only slightly," he said.
Doug Kmiec, a Pepperdine University Law School professor
and friend of Brown, said such criticism is misguided. He
said the seminars require participants to do heavy reading
and thinking and are appropriately balanced for legal scholars
of "every ideological persuasion."
"The programs are run in such a way that they do not
implicate any particular business, such as lobbying for a
particular outcome in a given case or a public matter,"
he said.
Baxter said he took into account that he would encounter
a "philoposphical view point" when he went to the
Liberty Fund seminar in Key West, just as he'd anticipated
a more liberal agenda when he had paid his own way years earlier
to attend a judges' symposium sponsored by the Roscoe Pound
Institute, a civil justice forum named for the late Harvard
Law School dean.
"It's interesting, it's challenging, it makes you think,''
he said. "The thought that someone who goes to this is
going to come out brain-washed is hard for me to accept."
Two years after the Liberty Fund seminar, Brown enrolled
in a two-week institute for state judges sponsored by the
Law and Organizational Economics Center, a joint project of
the business and law schools at the University of Kansas.
Specifically designed for judges who handle civil litigation,
the program is intended to help judges understand the consequences
of their decisions by teaching them to think like economists.
More than 1,000 judges nationwide have participated, including
scores of trial and appellate judges from California and a
number of supreme court justices from other states. Applications
are accepted on a first-come, first-serve basis, but recruitment
of judges is done through word-of-mouth referrals.
The Daily Journal found that about two-thirds of the California
participants between 1995 and 1999 were Republican-appointed,
which might simply reflect that Republicans outnumbered Democrats
on the bench at that time.
"Our program presents standard economics, finance and
statistics," said professor Henry Butler, director of
the seminars. "We're just providing it to the judges
because many of them did not have these topics in college,
but it's very important for them because they are called on
a regular basis to make decisions involving these topics."
Fourth District Court of Appeals Justice Thomas Hollenhorst,
who sits on the board of advisers for the center, acknowledged
that it's controversial because the "law and economics"
movement "tends to be bottom-line-ish and market-driven
and absent of societal values. It's more about dealing with
resources and money than dealing with people."
But he said the Kansas program filled a void for many West
Coast judges, himself included, who had not studied its concepts
during their formal education and didn't realize there are
other ways of looking at litigation remedies.
"I don't know anybody who has taken these classes and
has become a pure disciple,'' he said. "But people tell
me they find it useful in understanding legal arguments that
lawyers are making who have this law and economics background."
While the program has won high marks from many judges who
have said it taught them new tools with no partisan slant,
not all the publicity surrounding the institute has been flattering.
Two months after Brown returned home from her first week
of study at the university's Lawrence, Kan., campus, the Wall
Street Journal reported that Koch Industries, which provided
the seed money and significant ongoing funding for the seminars,
was also the driving force behind a controversial scoring
system that rated judges in the Great Plains states during
election season on how their decisions affected the business
community.
Some Midwest judges also reacted angrily to Butler's suggestion,
published in a letter in an Oklahoma newspaper, that pressure
on judges to be more business-friendly may explain why the
program had become so popular. Butler's professorship was
itself endowed by Koch Industries.
Meanwhile, some critics accused the family owners of Koch
Industries, the nation's second-largest privately held company,
of developing the seminars as a veiled means of influencing
judges in jurisdictions where the company was frequently involved
in litigation.
The Koch family's conservative politics and philanthropy are
well documented.
Family-controlled foundations generously support several
right-leaning and libertarian legal advocacy groups, including
the Institute for Justice, the Federalist Society and some
of the regional public interest law firms modeled after the
Sacramento-based Pacific Legal Foundation, according to records
posted on www.mediatransparency.org, a Web site that tracks
charitable giving by foundations.
Butler and University of Kansas economics professor Keith
Chauvin insisted in interviews that concerns about corporate
influence in the Law and Organizational Economics Center are
vastly overblown. Butler noted that the center's funding comes
from "a broad base" of several dozen foundations
and corporations, just as many university programs do.
The professors said it's ridiculous to worry that judges
would allow themselves to be duped by an agenda-driven curriculum.
"The fundamental premise underlying that criticism is
that judges can't distinguish between valid and invalid arguments,"
he said. "The reason they are judges is that someone
along the way decided they are pretty good at that."
California judges, far removed from the media flap over
Koch Industries, have continued to participate in the program.
In December 1999, Brown finished her University of Kansas
economics training with a week in sunny Florida. All the participating
judges were given the option of spending their second week
in the program either in Sanibel Island, Fla., or at a Rocky
Mountain ski resort.
When the media broke the story a few years ago of federal
judges attending privately bankrolled seminars at Wyoming
ranches, Arizona golf resorts and elsewhere, critics were
quick to call for reform.
"It may be a coincidence that the judges who attend
these meetings usually come down on the same side of important
policy questions as the funders who finance these meetings,"
Abner Mikva, former chief judge of the U.S. Circuit Court
of Appeals, wrote in The New York Times. "It may even
be a coincidence that environmentalists seldom are invited
to address the judges in the bucolic surroundings where the
seminars are held. But I doubt it. More importantly, any citizen
who reads about judges attending such fancy meetings under
such questionable sponsorship will doubt it even more."
In 2001, Chief Justice William Rehnquist shot back, calling
the proposed reforms in Congress an attack on the free speech
rights of judges. His remarks helped to kill a bill sponsored
by Democratic Senators John Kerry of Massachusetts and Russ
Feingold of Wisconsin.
"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 in a speech. "It
is contrary to the public interest in an informed and educated
judiciary, and contrary to the American belief in unfettered
access to ideas."
Today, the economics program for judges is no longer affiliated
with the University of Kansas, nor does it offer judges free
trips to resorts. After a brief relocation to Chapman University
in Orange County, the program now is jointly run by the American
Enterprise Institute and the Brookings Institute, two of the
nation's leading establishment think tanks, and all seminars
are taught in Washington, D.C., according to Butler.
Brown, meanwhile, has taken her studies to a higher level.
In 2002, she enrolled in an elite program for appellate judges
at the University of Virginia that allows them to earn a master's
of laws of the judicial process degree after 12 weeks of classes
and completion of a thesis.
The program offers judges the chance to study new trends
in jurisprudence and brush up on specialized areas of the
law. Brown is one of a half-dozen California judges who finished
their on-campus coursework this summer and have until next
spring to finish their research papers.
Judges who've graduated from the program describe it as
an intense grind, but also say it gave them a fresh perspective
and a deeper understanding of the law.
"It's not like going to these weekend seminars where
you are updated," Judge Marc Poché, a 1982 alumnus,
said in August. "We literally went back to law school
and had to read cases."
Lawyers who've followed Brown's career acknowledge it's
impossible to say how her experiences in continuing education
have influenced her philosophy or guided her to outcomes in
specific cases.
Brown's supporters see nothing wrong with taking advantage
of opportunities to engage in lofty thinking off the bench.
"I think these [Liberty Fund] programs inspire judges
to learn more about the history and structure of the American
constitution and I think that can only be a good thing,"
Kmiec said.
Kendall, who studied at University of Virginia as an undergraduate,
said he has "absolutely no problem" with Brown earning
an LLM degree at his alma mater, which he described as a leader
in the conservative law and economics movement.
"That is exactly the type of judicial education that
is impossible to question,'' he said.
But Kendall and Wheaton say it doesn't inspire public confidence
for judges to go to seminars whose sponsors have strong ideological
views.
"The problem I see from her speeches and her opinions
is that she sees her judicial position as a soapbox to express
her personal views," Wheaton said. "These seminars
are of a piece with that in that she goes to them to learn
how to advance her personal views rather than how to become
a better judge."
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