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Education of a Judge
D.C. Circuit Nominee Janice Rogers Brown Has Attended Several Seminars Sponsored by Conservative Groups

Los Angeles Daily Journal
November 3, 2003
Peter Blumberg

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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