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Despite 'vindication,' judges shouldn't let advocacy groups pamper them

The Courier-Journal
June 15, 2005
David Hawpe

The Wall Street Journal editorial page -- whence cometh talking points for all those right-wing radio and TV types -- has weighed in with congratulations for our local boy, Danny Boggs, chief judge on the U.S. 6th Circuit Court of Appeals.

When last we checked, three other judges had quit the board of the Foundation for Research on Economics and the Environment, which provides free "study" trips to Montana resorts for folks on the federal bench.

But our man Boggs, the object of a judicial misconduct complaint by Doug Kendall from the Community Rights Counsel, decided not to quit, obviously hoping that his counterpart on the 11th Circuit who was handling the complaint, James Loken, would absolve him and provide cover for his continued service on the FREE board.

Loken did just that, noting that Boggs (1) got an advisory opinion from the Committee on Codes of Conduct before joining the FREE board, (2) is not accused of taking any specific position or action that would suggest a quid pro quo for free trips, and (3) has "paid due regard to the relevant ethical standards."

Loken contends nothing in the complaint "casts doubt on Judge Boggs' statement that FREE does not litigate and does not take official positions." Further, two former U.S. attorneys found, after review, that FREE seminars present "a varied, balanced, intellectually challenging and rigorous series of educational opportunities for participants."

All of which prompted the WSJ this week to revel in Boggs' "vindication" and "victory," which "is shared by all federal judges who attend privately funded judicial seminars with the honorable goal of learning something." While enjoying the resort-type amenities, of course.

But let's hold up on the balloons and confetti. Loken found no evidence that FREE takes positions? How about the footnote in his own decision, which quotes the FREE Web site itself as saying the organization "has consistently fought corporate subsidies fostering exploitation, and strongly advocates such efforts as wolf reintroduction to the federal lands." True, those two sound like tree-hugger positions, but the point is, they're proof of advocacy.

The WSJ and Loken argue that no judge would ever learn anything if it were necessary to drop out of seminars whenever somebody charged bias. Obviously that's ludicrous. All a judge has to do is pay for his or her own educational trip. Then nobody can complain, even if it includes trail rides in the Rockies.

Loken's decision notwithstanding, any judge who accepts one of FREE's $10,000 multi-day trips to Montana resort country owes the public an explanation. As the CRC and Kendall point out, FREE is substantially funded by corporations such as Texaco, which provide speakers to coach judges on their version of environmental law, including the "rejection of command-and-control environmentalism."

Kendall says FREE takes money for the excursions from foundations that are "simultaneously providing six-figure support for other organizations that challenge environmental laws in federal court, often before the judges who take FREE trips (or serve on FREE's board)."

What Loken actually concluded was that each judge should decide, individually, whether to take FREE's travel bennies. Boggs should decide to pay his own way, and get off FREE's board.

Loken warns against isolating judges from civic life, but that begs the question: Should judges' civic participation be financed by advocacy groups -- whether they favor wolves or the most piggish exemplars of free market capitalism? The answer is, they shouldn't.

But conservatives train their folks to expect nice things. For example, the Heritage Foundation is taking very good care of its 64 summer interns. Jason DeParle of The New York Times reports, "They are young and bright and ardently right. They tack Ronald Reagan calendars on their cubicle walls and devote brown bag lunches to the free market theories of Friedrich von Hayek. They come from 51 colleges and 28 states, calling for low taxes, strong defense and dorm rooms with a view." About half are "housed in a subsidized dorm at the group's headquarters, complete with a fitness room." And walk-in closets.

One of the cosseted is a recent Western Kentucky University graduate, Joel Peyton, who considers privatizing services in national parks a grand idea. After three summers in a Kentucky state park, he thinks government-run operations stink. Which prompted Heritage Foundation senior fellow Ronald Utt to shout, "Get this guy!"

In case you're wondering, our Courier-Journal editorial intern, Andrew Martin from the University of Kentucky, is a libertarian conservative. The apartment he's sharing at the Kentucky Towers has fairly high ceilings and a walk-in closet.

We're doing our part.

David Hawpe's columns appear Wednesdays and Sundays on the Editorial page. You can read them online at

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