The Injudicious Judiciary: Private Judicial Seminars and the Public Trust

An Interview with Doug Kendall

Doug Kendall is executive director of Community Rights Counsel, a public interest law firm with a mission of helping local governments defend land use laws, typically against challenges brought by developers under the U.S. Constitution's Takings Clause. In July, Community Rights Counsel issued the report, "Nothing For Free: How Private Judicial Seminars Are Undermining Environmental Protections and Breaking the Public's Trust."

Multinational Monitor: What motivated Community Rights Counsel to look at the issue of private seminars for judges?

Doug Kendall: One of the first things I did after starting Community Rights Counsel was to look at all of the efforts by property rights groups to move "takings" cases - where property owners demand compensation for government regulations that they allege diminished the value of their land - through the court system. We studied efforts of groups like the Pacific Legal Foundation to bring takings challenges against local governments and the efforts of lobbying groups like the National Association of Home Builders to promote legislation that helped developers move cases through the court system. We also discovered that a Montana-based property rights outfit called the Foundation for Research on Economics and the Environment (FREE) was hosting seminars for federal judges. FREE teaches judges why federal and other environmental protections are inefficient, why these laws should be replaced by market solutions to environmental problems and how judges can use provisions like the Takings Clause of the U.S. Constitution to strike down environmental protections and return to the unfettered free market. In April 1998, we released our first report. It was titled "The Takings Project: Using Federal Courts to Attack Community and Environmental Protection." That report triggered a front-page story in the Washington Post exposing FREE's seminars. The issue about the propriety of these seminars was raised by several members of Congress at oversight hearings. However, the judiciary released a report in which they essentially rubber stamped judges' attending these seminars. This seemed like a mistake and it convinced us that a more detailed study was needed to explain fully why the judiciary was wrong to permit private funding of judicial education.

MM: What was the methodology for the judges' seminar report?

Kendall: We looked at every federal judge's financial disclosure form filed for the years 1992-1998. We looked at about 1,100 senior and active federal judges. We wanted to find out what privately funded trips judges were taking, how frequently judges were attending privately funded seminars, who was conducting these seminars, what viewpoints seminars emphasized.

MM: What did you find out?

Kendall: We found that the marketplace of privately funded seminars is dominated by right-of-center, anti-regulatory organizations such as FREE, George Mason University's Law and Economics Center (LEC) and the Liberty Fund.

MM: Is it legal for judge's to accept free trips to seminars?

Kendall: The Ethics Reform Act of 1999 prohibits any federal official from taking gifts, subject to reasonable exceptions authorized by each branch's ethics office. The ethics office for the Executive Branch prohibits Department of Justice attorneys from accepting gifts in conjunction with educational activities. In other words, a Justice Department attorney could not accept a FREE seminar. The judiciary has established a case-by-case standard whereby judges are to obtain and consider a host of information about the seminar, the seminar's sponsors and what the seminar is about. The judges are then supposed to compare this information to their litigation docket and make a judgment as to whether or not it is appropriate to receive a gift worth several thousand dollars in attending a seminar. It is our contention that that standard does not work.

MM: There are members of Congress who want to introduce a different standard. What is that?

Kendall: Several senators are planning to introduce legislation that would put in place a ban similar to that already in effect for executive branch officials. Under this proposal, judges would not be able to accept gifts from special interests in association with obtaining judicial education. They would be able to still attend seminars put on by the Federal Judicial Center, which is an agency within the judiciary that is designed to provide unbiased education for federal judges. The proposed legislation would also increase the funding for the Federal Judicial Center to permit the Center to sanction and pay judges' way to non-Federal Judicial Center seminars.

MM: Who is the driving force behind the three right-leaning organizations that pass out the majority of the free trips for judges?

Kendall: Henry Manne was the founder and until recently the director of the Law and Economics Center. He emphasizes the right-leaning Chicago School's view of antitrust, property rights and tort reform. FREE is a Bozeman, Montana-based non-profit started by John Baden. It is funded by corporations, corporate foundations and right-wing foundations such as those controlled by Richard Mellon Scaife. It promotes what is called free market environmentalism. FREE tells judges why the free market rather than federal environmental protections is always the best way to protect the environment. The third big organization hosting seminars is the Liberty Fund, which does seminars for judges in association with the Manhattan Institute's Center for Legal Policy.

MM: Is there any balance provided at these seminars?

Kendall: We carefully studied the seminars put on by FREE. With FREE's seminars, there is no balance whatsoever in the principal messages they impart to federal judges. They try to put a fig leaf of balance on the seminars by inviting moderates from within the environmental community to give one or two lectures out a total of 17 at the seminars. But even these token environmentalists typically share FREE's general view that market solutions are better than command-and-control environmental regulation.

MM: What impact do these seminars have?

Kendall: We looked at rulings in four critical areas of environmental law - Takings Clause, Commerce Clause, environmental standing and regulatory oversight. These are four areas in which certain lower federal courts have made dramatic doctrinal changes which have curbed or in many cases struck down federal environmental protections. We identified within those four areas a total of 10 cases which we think are objectively the most remarkable departures from established precedent, the most activist rulings in terms of hostility to the environment. And using our database, we looked at the authors of those 10 rulings. We found that in all 10 cases, the judges writing the opinions had, over the period 1992 to 1998, attended at least one Big Three seminar. In six of those cases, we found that the judge attended the seminar while the case in question was pending before the court. In at least three of those cases, we found that the judge had ruled in favor of a litigant funded at least in part by the sponsors of the seminar in question.

MM: You also point out that most of the judges who attend these seminars already agree - before they attend the seminar - with the points of the view that are presented at the seminar. The vast majority of judges who attend these seminars are conservative judges.

Kendall: There are two schools of thought among conservative judges. There are judges President Reagan wanted - judges who shared Reagan's philosophy of judicial restraint, judges who interpret laws, not make them. Then there are judges who do not believe in judicial restraint and believe in being activists in advancing their conservative political philosophy. FREE's seminars are about advancing and encouraging judges to adopt this second philosophy - to be activists in the area of environmental law. Take, for example, James Huffman, who is the dean of the Lewis and Clark Law School in Oregon and the most frequent lecturer at FREE seminars. Huffman said in a speech that he gave to the Heritage Foundation that "the most significant accomplishment of the Reagan/Bush administration is the staffing of the federal courts with intelligent judges. My fear is that the Reagan revolution will come to nothing as these judges sit on their hands in the name of the simplistic theory of judicial restraint." The funders of FREE seminars are not content with judges that practice judicial restraint - judges that merely interpret laws. They want judges that strike down laws. They want judges to free them of the obligations placed upon them by our system of federal environmental protections. That is what FREE seminars are all about.

MM: Are there any instances where a funder of one of these groups specifically targeted a judge who was ruling on a case affecting that funder?

Kendall: FREE's funders also bankroll federal court litigation. So, for example, Richard Mellon Scaife's foundations fund both FREE and Pacific Legal Foundation (PLF). So you have judges ruling in cases in favor of litigants like PLF that are funded by the same foundations that paid for their seminars. Is that illegal? Probably not under the current standards. But it does seem to create an appearance problem for the judges.

MM: What about corporate funders?

Kendall: FREE and Law and Economics Center each get a sizeable portion of their budgets directly from corporations, but they generally will not disclose the identity of these funders. A Law and Economics Center annual report from 1992 reveals that it received funding directly from many of the largest U.S. companies - including Philip Morris, Shell and General Electric. We know that FREE gets funding from corporate foundations - Shell Oil, Amoco, Burlington Resources, GE, Temple-Inland, Texaco.

MM: Senator John Kerry, D-Massachusetts, has proposed a ban on the practice of judges taking free trips to seminars. If the proposal becomes law, will it change the bottom line on how judges decide these cases?

Kendall: I hope it will. At these seminars, judges spend a week in a lovely setting listening to ideologues talk about why judges should find in their favor. It's hard to imagine that this has no influence on judges' thinking on critical legal issues that are being decided in the federal courts. I would expect that if judges receive a more balanced education on these topics, we would see fewer rulings that are overtly hostile to environmental protections.

MM: What does a judge get when he signs up for a seminar?

Kendall: All of the judge's expenses are paid for during the five days to two weeks that they spend at these seminars. They receive tuition, room, board, transportation, some recreational activities. It is essentially a paid vacation, with an educational component to it.

MM: Have you ever attended one of these seminars?

Kendall: No. FREE will not let anyone besides the judges attend their seminars.

MM: Where are these seminars held?

Kendall: FREE seminars are held either at resorts or dude ranches out in Montana near Yellowstone National Park.

MM: Do judges get to take their spouses?

Kendall: Our research shows that a fairly large percentage of the judges take spouses. Some judges have reported that their spouses' expenses are paid for. Other judges have suggested that they pay their spouses' expenses. It is thus unclear how frequently FREE and other groups will pay for the spouses to attend.

MM: Do you put a dollar figure on what these trips cost?

Kendall: Judges have estimated the value of FREE seminars at upwards of $2,000. Judges have estimated the value of Law and Economic Center seminars, held at Florida resorts, at over $7,000.

MM: Do you have any sense as to what percentage of time spent at these resorts is actually the classroom as opposed to playing golf or horseback riding?

Kendall: A typical day at a FREE seminar includes two to three 90 minutes sessions in the morning. Most of the afternoon is devoted to recreational activities such as fly fishing or horseback riding. There is a cocktail hour at about 7 p.m. followed by a dinner where there is typically an evening speaker.

MM: One of the cases that you highlight in your report is the case of Judge Stephen Williams. Could you detail the facts of that situation?

Kendall: The Sweet Home v. Babbitt case is one of the decade's most important environmental decisions. The case was brought by the timber industry to challenge the ability of the Department of the Interior to regulate habitat modifications on private lands that harm endangered species. The question was whether the Endangered Species Act could be applied to private lands. The case was initially decided by the U.S. Court of Appeals for the D.C. Circuit in July 1993 on a 2-1 vote. Judge Abner Mikva wrote an opinion for himself and Judge Williams upholding the Department of Interior regulations and rejecting the challenge. Judge Williams reports that two weeks later he flew to Island Park, Idaho to attend a FREE seminar. He returned, granted rehearing, switched his vote, and wrote an opinion striking down the habitat protection provisions.

MM: What conclusions do you draw from that fact pattern?

Kendall: The conclusion I draw is that these trips can cause an awful appearance problem for the federal judiciary. The collection of evidence that we have compiled in the "Nothing for Free" report convinces me that these seminars do have some influence on judicial thinking on environmental topics.

MM: Judge Mikva, who wrote the introduction to the report, seems to think that the Judicial Conference has the power to crack down on these free trips. Why don't they act?

Kendall: The judiciary is an independent body that does not respond well to criticism. The response of the judiciary has in general been, "How dare you suggest that we can be swayed by these seminars?"

MM: Claiming that federal judges are underpaid, Chief Justice Rehnquist has suggested that judges should be able to collect honoraria for speeches. How do you view this proposal in light of your findings?

Kendall: I was shocked and saddened by Chief Justice Rehnquist's letter supporting an Appropriation's rider that would lift the ban on judicial honoraria, but I think it explains a lot. The Chief Justice clearly has a blind spot when it comes to understanding how actions judges take can undermine public confidence in the judiciary. Permitting judges to receive cash from corporations for speeches is a horrible idea. But given the Chief Justice's support for permitting honoraria, it is hardly surprising that the Judicial Conference, which he heads, would refuse to take any action to curtail judicial junkets. I also find it ironic that the Chief Justice would support the lifting of the honoraria ban through a rider provision slipped into the Court's appropriations bill by Senator McConnell without public debate. If ever a provision needed a full public debate, it is the lifting of the honoraria ban. At the same time, the Judicial Conference opposed the Kerry/Feingold bill to ban the junkets, demanding more time for "study and review." There is a double standard at work here. All that said, I support the judiciary in their criticism of Congress for withholding cost of living adjustments. Judges should earn a good salary (right now they make between $140,000 and $175,000) and their pay should increase to keep up with inflation. The answer to this problem, however, is not to take payments or free vacations from corporate special interests.