|
For four years, Senator Kerry of Massachusetts has fought
a largely unheralded battle to restrict the attendance of
judges at privately funded educational seminars billed by
critics as "judicial junkets."
The effort by Mr. Kerry, who is the likely Democratic nominee
for president, has irritated judges of various political stripes
and led to claims that his proposals would infringe on First
Amendment rights and threaten the independence of the federal
judiciary.
Mr. Kerry's opening salvo on the issue came in July 2000,
when he introduced the "Judicial Education Reform Act,"
a bill that would make it illegal for judges to accept free
trips unless they were invited speakers.
The senator's move took place just days after a liberal
public-interest law firm, Community Rights Counsel, released
a report asserting that more than 200 judges had taken trips
sponsored by entities the firm described as "right of
center. "The report also asserted that much of the travel
was bankrolled by companies or foundations involved in pending
court cases.
In a floor speech, Mr. Kerry said the practice threatened
to undermine public confidence in the justice system. "The
notion that federal judges are accepting all-expense-paid
trips that combine highly political legal theory with stays
at resort locations from persons with interests before their
courts creates an appearance of conflict that is unacceptable
and unnecessary," the senator said.
The legislation did not make much of a splash, but the prospect
of finding federal judges vacationing on someone else's dime
was too tantalizing for television magazine show producers
to pass up. In December of that year, a camera crew with ABC's
"20/20"caught up with a group of judges on a golf
course in Tucson, Ariz.
"You wouldn't call this a junket?" ABC correspondent
Brian Ross shouted to the judges as they played a par five.
"I wouldn't. Oh, no, well, it depends what you mean
by junket," replied Judge William Osteen, who sits on
the federal district court in Greensboro, N.C.
While the judge's Clintonian response may not have helped
his cause, those who organize the judicial conferences defend
them as balanced and essential to keeping judges informed.
"There is no program that I know of that has a stronger
academic content than our programs," said Francis Buckley,
a law professor at George Mason University and the director
of the school's Law and Economics Center. Mr. Buckley said
the faculty for the seminars are drawn from a variety of academic
institutions, including Harvard, Princeton, and the University
of Virginia.
According to Mr. Buckley, last year, more than 2,000 federal
judges applied for one of the school's seminars.
The most prominent critic of Mr. Kerry's legislative effort
on the issue is Chief Justice Rehnquist. In May 2001,he blasted
the measure as "antithetical to our American system and
its tradition of zealously protecting freedom of speech."
In particular, Justice Rehnquist objected to a provision
in the bill that would have put a government body, the Federal
Judicial Center, in charge of approving privately run judicial
seminars. Judges who attended approved seminars would be allowed
to do so with federal funds.
"The notion that judges should not attend private seminars
unless they have been vetted and approved by a government
board is a bad idea," he said.
Justice Rehnquist's attacks and criticism from a variety
of bar associations and judicial groups doomed Mr. Kerry's
first volley. Last year, he tried again. In April, Mr. Kerry
joined with Senator Leahy of Vermont to offer the "Fair
and Independent Federal Judiciary Act." This time the
restriction on judicial education programs was coupled with
language promising a pay hike of roughly $10,000 for each
federal judge.
The Leahy-Kerry legislation stalled after Senate Republicans
pushed through their own proposal for a judicial pay hike.
That measure died in the House because of a dispute related
to congressional pay raises.
The Leahy-Kerry bill is pending, though Senate aides said
no action is expected on it in the near future.
Mr. Kerry's office did not respond to requests for information
about the status of the legislation. In March, in a statement
prompted by the controversy surrounding Justice Scalia's participation
in a duck-hunting trip with Vice President Cheney, Mr. Kerry
said, "There is absolutely no question that when judges
accept vacations and gifts from the parties before them it
erodes public trust in the courts."
One sponsor of free seminars for judges said he is not concerned
about Mr. Kerry's legislative proposals. The director of the
Foundation for Research on Economics and the Environment in
Bozeman, Mont., John Baden, described his group as the "primary
target" for critics of such programs.
"I just don't pay much attention to it, quite frankly,"
he said.
Mr. Baden described the attacks on his seminars for judges
and law professors as "totally without foundation."
"In terms of the substance of the program, the quality
of the program, I think it's as close to bulletproof as anyone's
ever seen, "Mr. Baden said. He described speakers at
the foundation's judicial seminars as, generally, "the
top people from the top places." Scholars like George
Priest of Yale University and Philip Heymann of Harvard University
have spoken at the foundation's retreats.
The executive director of Community Rights Counsel, Douglas
Kendall, said the benign description of the judicial seminars
is misleading. He described the foundation as "a group
that takes judges to old Western ranches, takes them flyfishing,
and talks to them about why they should strike down environmental
laws." Mr. Kendall's reports note that the Montana-based
group has received donations from large corporations, the
conservative John M. Olin Foundation, and from foundations
bankrolled by Richard Mellon Scaife.
Mr. Kerry has echoed the liberal group's complaint that
some of those paying for the judges' trips have important
cases pending in court.
Mr. Baden said only foundations funded by people who are
deceased are allowed to support the judicial programs. "In
my cosmology, they are not likely to appear before judges,"
he said.
While Mr. Baden's group says its funding is completely transparent,
the George Mason program takes the opposite approach.
"On the advice of our board of judicial advisers we
keep confidential our list of donors," Mr. Buckley said.
Another law professor at the university, Ronald Rotunda,
said the policy insulates the judges from charges that they
are being bought. "The judges often don't know the source,
so it can hardly affect their thinking," he said.
Earlier this year, Community Rights Counsel lodged formal
ethics complaints against three jurists for serving on the
board of Mr. Baden's group, the Foundation for Research on
Economics and the Environment. The complaints were directed
against the chief judge of the District of Columbia Circuit,
Douglas Ginsburg, the chief judge of the 6th Circuit, Danny
Boggs and a judge on the 3rd Circuit Court of Appeals, Jane
Roth.
Mr. Ginsburg and Ms. Roth did not return calls seeking a
response to the group's complaint. A court official said Mr.
Boggs had no comment on the allegations.
|
