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Leading With The Right
The jury is out on whether junkets for judges are out of order


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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