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Change of ethics guidelines for federal judges criticized

USA Today
December 17, 2004
Jim Drinkard

WASHINGTON - The committee that sets ethics rules for federal judges has quietly revised its guidelines in a way that critics say will make it easier for judges to accept privately financed educational junkets paid for by interests that seek to influence their decisions.

The rules change, posted in August on the federal judiciary's Web site, was in part a response to concerns raised by members of Congress and watchdog groups that special interests were pushing their views on judges through secretive seminars at luxurious resorts.

In May 2003, Sen. Patrick Leahy, D-Vt., halted his push to write new ethics rules into the law and deferred to the federal judiciary to write its own rules.

"Self-regulation would be the preferred approach," Leahy said at the time. But he said the new rules should include a requirement that seminar organizers "fully disclose the financial and litigation interests of their sponsors."

When the judicial Committee on Codes of Conduct posted its new rules, they seemed to narrow the conditions in which attending a seminar would be seen as unethical. For example, if financial backers of a seminar's sponsor didn't specifically earmark their gifts for the seminar, or if they were part of a broad group of backers, a judge could conclude that is "too minor ... to create ethical concerns," the advisory says.

Leahy expressed disappointment in the new guideline. He said it loosens, rather than tightens, standards and makes disclosure of trips less rigorous.

Leahy said he will renew his push to curb the practice of judges accepting private seminars and will use upcoming confirmation hearings for judges as a platform to press the issue.

"Gift-disclosure rules apply to presidents and Cabinet officials and members of Congress," Leahy said. "There's no reason why judges in lifetime jobs should not have the same kind of accountability."

The new guidelines "go in the wrong direction," said Sen. Russ Feingold, D-Wis. "This was not what needed to be done to discourage congressional interest in this issue."

The Administrative Office of the U.S. Courts issued a statement defending its committee's new ethics advice. It said the language is intended to give judges more considerations to weigh when they decide whether to attend privately financed seminars. "This opinion should assure that judges are less likely to make choices that could appear problematic," the statement said.

But Steven Lubet, an expert on judicial ethics at Northwestern University, said the new guidance "ought to give more straightforward advice. It ought to say there are seminars that are thinly cloaked efforts at indoctrination, and judges should not go to them."

Parts of the old rule did that better, he said. "At best, this is a sideways move."

"The truth is these trips are very attractive, and if a judge wants to go on one, it's quite easy to argue that the trip is allowed" under the new rules, said Stephen Gillers of New York University, another legal ethics authority. "This is unlikely to do much to change behavior."

The chairman of the rules panel when the new rules were issued, U.S. District Judge William Osteen of North Carolina, was caught on film in 2001 while on a privately financed educational trip to a golf resort in Arizona.

The ABC program 20/20 described judges playing golf, swimming laps and sunbathing while at a seminar sponsored by George Mason University, which paid for the seminar with support from corporate donors.

Osteen, who has since left the ethics panel, declined to comment on the rules change. So did current chairman Gordon Quist, a district judge in Michigan.

A judicial watchdog group, the Community Rights Counsel, said in a letter to Osteen and Quist that the rules change "paves the way for interested parties to lobby federal judges."


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