Howard J. Bashman's appellate columns, etc.

Privately-Sponsored Educational Junkets For Federal Judges -- Should They Be A Cause For Concern?

By Howard J. Bashman
Monday, September 9, 2002
The controversy over privately-sponsored educational junkets for federal judges is back in the news. Opponents of the nomination of D. Brooks Smith to serve on the U.S. Court of Appeals for the Third Circuit tried to seize on his attendance at such events as a basis for criticizing his ethics. And, in June 2002, the Director of the Administrative Office of the United States Courts criticized the American Bar Association for considering the issuance of an ethics opinion that would address judges' attendance at such seminars.

Do lawyers and the general public have legitimate cause for concern when federal judges attend privately-sponsored educational junkets? The answer to that question is both yes and no.

The leading critic of privately-sponsored educational junkets for federal judges is a Washington, DC-based group known as Community Rights Counsel. CRC is a fervent supporter of judicial ethics in general, but some have criticized CRC's work because the group has most often questioned the conduct of conservative Republican judges.

CRC's concerns regarding judicial education seminars focus on two separate but related issues. First, the seminars are privately-funded, with even the travel and meal expenses of attending judges paid not by the judges or the federal government, but rather by the sponsors of the seminars. And, not surprisingly, the seminars tend to occur in desirable locations.

Second, according to the CRC, the subjects taught at the seminars often promote a conservative, pro-business agenda. This, the CRC maintains, stems from the fact that groups supporting a conservative agenda sponsor most of these seminars. It is difficult to determine why well-funded liberal groups have not attempted to sponsor their own seminars for judges at which those groups could proselytize a more liberal agenda.

In the CRC's view, federal judges who attend these seminars are improperly indoctrinated into the conservative fold. Thus, the CRC contends that judges who attend these seminars emerge to deliver rulings that are pro-business, anti-consumer, and anti-environment.

Those who oppose privately-sponsored educational junkets for federal judges because those seminars preach a conservative outlook are focusing on the wrong issue. Federal judges are in the business of evaluating opposing viewpoints and determining what result the law and the facts demand. By nature, judges tend to be skeptical people, especially when they are hearing only from one side of a disputed issue.

It is beyond question that liberal Ninth Circuit Judge Stephen Reinhardt could attend thousands of conservatively-oriented seminars and emerge unchanged, or that U.S. Supreme Court Justices Antonin Scalia and Clarence Thomas could consume a steady diet of liberally-oriented programs and remain unrepentantly conservative.

In fact, judges should be encouraged to remain as informed as possible in the marketplace of ideas. No one could reasonably advocate attempts to insulate federal judges from conservative or liberal viewpoints. Just as there would be no basis to criticize a federal judge who purchased a book about law and economics, or about companies that have tried to shirk responsibilities owed to their customers, employees, or the public, there is no basis to criticize privately-funded educational seminars due to their content or socio-political orientation.

Much more troubling, however, is that the judges who attend such seminars have their travel and food expenses reimbursed by the organization that sponsors the program. If someone gave me an all-expenses-paid trip to a desirable location, I would undoubtedly feel thankful toward that person. And, if my sponsor were someone who could repeatedly send me on such free trips, I might begin, consciously or unconsciously, to try my best to remain in that person's good graces.

Furthermore, the privately-funded educational junkets that the CRC has focused on are not capable of accommodating all members of the federal judiciary. Thus, the sponsoring organizations must have some way of determining whom to invite or which RSVPs to honor. Sponsoring organizations could rationally conclude that it was in their best interest to keep inviting only those judges whose rulings reflect an acceptance of the doctrines that are being taught. Even if all federal judges are responsible enough not to let the prospect of free travel influence their actions as judges, an appearance of impropriety does arise.

Attempts to address concerns about privately-sponsored educational junkets for federal judges should therefore focus on the all-expenses-paid aspect of the arrangement, rather than on the fact that the seminars preach certain viewpoints. While I see no reason why the seminars themselves cannot remain free of any tuition charge or attendance fee, either the federal government or the judges themselves should be required to pay the cost of travel and meals associated with these events. And, before federal judges are required to shoulder the expenses personally, they should receive greatly-needed substantial pay increases.

Sponsors of educational junkets for federal judges should also be encouraged to refrain from engaging in favoritism in deciding which judges will be invited to attend. It would be impossible to hold a seminar that all sitting federal judges could attend, but there are ways of ensuring that all judges on a given circuit or district court are invited, or that attendees are randomly selected from RSVPs received before a stated deadline.

Those who criticize privately-sponsored educational junkets for federal judges based on the political orientation of the curriculum are misguided. The only acceptable solution to having too many conservatively-oriented seminars is for liberal groups to offer more liberally-oriented programs. The First Amendment to the U.S. Constitution would seem to allow no other answer.

The concern whether substantially underpaid federal judges might improperly try to curry favor with interest groups that can regularly offer those judges expense-free travel to exotic locations is more significant. The solution, though, is not to ban privately-sponsored seminars or to require that the curriculum lack any relevant point of view.

Rather, policies should be adopted that require either the federal government or the judges themselves (after receiving a suitably large increase in their unfortunately low wages) to pay for travel and meal expenses incurred in attending such seminars, and to ensure that all judges have an equal opportunity to attend.

This article is reprinted with permission from the September 9, 2002 issue of The Legal Intelligencer © 2002 NLP IP Company.