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Dec. 17, 2007
/ 8 Teves 5768
Here Dumbs the Judge: Sen. Jon Kyl joins a left-wing effort to censor seminars for federal judges
John H. Fund
The Senate has failed to fill a slew of judicial vacancies, including 17 that have been declared "emergencies" by the Judicial Conference of the United States. Not satisfied with that, some senators are now trying to restrict the ways judges receive continuing legal education and how often they can visit private law schools such as Tulane or Emory. For all their talk about being in favor of education, it looks as if some senators want to dumb down the judiciary.
Wisconsin Democrat Russ Feingold has teamed up with Arizona Republican Jon Kyl of Arizona, the new Senate minority whip, on an amendment to a judicial pay raise bill scheduled for a Senate vote this week. The bill itself aims to make federal judicial service more attractive to the best lawyers: Federal judges haven't had a pay increase beyond inflation in more than two decades, and soaring private-sector legal salaries make it increasingly difficult to attract the best talent for the federal bench.
But the Feingold-Kyl amendment would make it more difficult for sitting judges to attend seminars that would update them on new areas of legal analysis. It would flatly ban federal judges from attending anything other than a government-sponsored program. It appears to be a clever way for liberals to rewrite the rules so they can hobble distinguished legal programs for federal judges offered by Virginia's George Mason University and the Foundation for Research on Economics and the Environment, which partners with Montana State University in putting on its programs.
The two programs could argue that their affiliation with public universities means they shouldn't be covered by the new restrictions. Even though it receives private funding, George Mason's status as a state school gives it a stronger argument for being exempt than FREE has, but no doubt the issue would wind up in court for years. In the meantime, the ban would have a chilling effect on judges accepting invitations to their programs.
George Mason's program, who faculty has included eight Nobel laureates is the best known, having trained over 4,000 judges. Five federal appellate courts and 20 state court systems have enlisted GMU to provide the academic content of their own annual conferences. GMU seminars feature some of the best scholars in the country on such subjects as the Founders and the work of John Stuart Mill. But because GMU also teaches judges how to apply economic and scientific analysis in the courtroom, liberal groups have long railed against the seminars, calling them "a way for corporations to reach out to judges" and taint their rulings. Mr. Feingold has long crusaded against what he calls "privately funded judicial education with an ideological agenda."
In truth, corporate sponsors account for less than 10% of the budget for George Mason's seminars. Judges must publicly disclose their participation, and George Mason doesn't sponsor any entertainment or recreation at the seminars. Judges are expected to absorb 500 to 600 pages of readings and attend 21 hours of seminars, spread over five days. Lecturers at the GMU conferences address only general principles of how the law intersects with economics; they do not discuss red-hot topics such as tobacco, asbestos litigation, abortion and racial preferences. Similar guidelines apply at the FREE seminars in Montana, whose lecturers have included former solicitor general Charles Fried and Nobel laureate Thomas Schelling, a co-founder of Harvard's Kennedy School of Government.
Judges of all persuasions agree on the value of the seminars. Justice Ruth Bader Ginsburg wrote after participating in two of George Mason's programs: "For lifting the veil on such mysteries as regression analysis, and for advancing both learning and collegial relationships among federal judges, my enduring appreciation."
Justice Ginsburg and other jurists know that the issues confronting them are becoming more complex and often involve sorting out competing claims about scientific evidence as well as issues that go beyond traditional legal maxims. They understand the value and importance of keeping up with changes in the law, and a wide variety of groups representing all persuasions offer such training. It's just that George Mason and FREE do a better job than most at it, and that has attracted envy and enemies.
Critics of judges learning economic principles have been trying to shut down the programs for years. In 2000, Sen. John Kerry joined with Mr Feingold to push a bill that would have allowed universities to hold such seminars but only if they were approved by career bureaucrats at the Federal Judicial Center. The late Chief Justice William Rehnquist opposed the Kerry bill, saying it smacked of government censorship and would "dramatically" restrict the information flow available to judges. "The notion that judges should not attend private seminars unless they have been vetted and approved by a government board is a bad idea," he wrote.
James Q. Wilson, a well-regarded scholar at Pepperdine University who has taught at the George Mason seminars, notes that attempts to shut down it and similar legal education seminars have been inspired by the Community Rights Counsel, an environmental group that receives significant funding from left-wing financier George Soros. Mr. Wilson notes that the CRC is primarily concerned with helping governments enact environmental regulations "without worrying about the takings clause of the federal Constitution." In 2005, the CRC raised questions about the qualifications of John Roberts and Samuel Alito to serve on the Supreme Court, notwithstanding that both won top ratings from the American Bar Association.
The proposed amendment would also bar any federal judge from accepting more than $1,500 in food, lodging or other reimbursement for any travel event not sponsored by a government, and more than $5,000 in total a year. Many might not mourn the fact that Justices Antonin Scalia, Anthony Kennedy and Stephen Breyer couldn't attend subsidized conferences in Europe anymore. But such a limit would also discriminate against less well-known but respected judges who are asked most frequently to participate in academic conferences and moot courts at private law schools. Harvard Law will always attract top-flight judges, but Pepperdine or Boston University might have a hard time persuading them to come on their own dime. The overall limit of $5,000 would be quickly reached for the best-regarded judges, who are just the kind that moot court organizers want to attract. The travel limits would also be especially hard on judges who live away from major airline hubs, not to mention those from Alaska and Hawaii.
Given the origin of the opposition to legal education seminars that aren't sponsored by governments, it's a surprise to see Mr. Kyl, a staunch conservative, sign on to Mr. Feingold's amendment. If senators approve the amendment, they may think they're striking a blow for greater judicial integrity. But the effort to "insulate" federal judges from intellectual influences is foolish. Federal judges are supposed to be some of the most thoughtful and knowledgeable men and women in the country. The notion that they are in danger of having their thoughts corrupted by other people's opinions is absurd.
When the Constitution was adopted, lots of people worried that the federal judiciary would over time become aloof and removed from the everyday thoughts and concerns of the people. Putting federal judges in an intellectual straitjacket would only make the judiciary more aloof and less informed.
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JWR contributor John H. Fund is author, most recently, of "Stealing Elections: How Voter Fraud Threatens Our Democracy". (Click HERE to purchase. Sales help fund JWR.)
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© 2006, John H. Fund