saved from url=http://www.nytimes.com/yr/mo/day/oped/28mikv.html
August 28, 2000
The Wooing of Our Judges
CHICAGO -- In a lifetime as a judge, lawyer and lawmaker, I can safely say I've encountered few judges guilty of outright dishonesty. Even when I started practicing law in Chicago in the bad old days, the number of crooked judges was small. But that is not what people believed then or believe now. By ABNER MIKVA
That is why so much is built into our judicial system -- from the black robe and "all rise" custom to lifetime tenure for federal judges -- to help foster the notion of judicial integrity. It all becomes meaningless, however, when private interests are allowed to wine and dine judges at fancy resorts under the pretext of "educating" them.
Between 1992 and 1998, according to a report from the Community Rights Counsel, a nonprofit public-interest law firm, more than 230 federal judges took one or more trips each to resort locations for legal seminars paid for by corporations and foundations that have an interest in federal litigation on environmental topics.
In the seminars devoted to so-called environmental education, judges listened to speakers whose overwhelming message was that regulation should be limited -- that the free market should be relied upon to protect the environment, for example, or that the "takings" clause of the Constitution should be interpreted to prohibit rules against development in environmentally sensitive places.
Judges who attended the seminars wrote 10 of the most important rulings of the 1990's curbing federal environmental protections, including one that struck down habitat protection provisions of the Endangered Species Act and another that invalidated regulations on soot and smog. In six of these cases, according to the report, the judge attended one of the seminars while the case was pending before the court. And, the report reveals, many judges failed to disclose required information about these seminars on their financial disclosure forms.
If an actual party to a case took the judge to a resort, all expenses paid, shortly before the case was heard, the judge and the host would be perceived to be acting improperly even if all they discussed was their grandchildren. The conduct is no less reprehensible when an interest group substitutes for the party to the case.
Of course it may be a coincidence that none of the seminars financed by private interests take place in Chicago in January or in Atlanta in July. It may be a coincidence that the judges who attend usually come down on the same side of important policy questions as those who financed the meetings. It may even be a coincidence that environmentalists are seldom invited to speak. But surely any citizen who reads about judges attending fancy meetings under questionable sponsorship will have well-founded doubts about their objectivity.
I know one federal judge who has been on a dozen trips sponsored by the three most prominent special interest seminar groups. I remember at least two occasions where judges on judicial panels where I also served took positions that they had heard advocated at seminars sponsored by groups with particular interest in the litigation.
The federal judiciary has a Federal Judicial Center that provides educational seminars for judges on a wide range of legal topics.
Since it uses taxpayer funds and answers to Congress, the program locales are not exotic, but the presentations are balanced.
Unfortunately, the United States Judicial Conference, the governing body for all federal judges, has punted on the propriety of privately funded seminars, advising that judges assess their appropriateness "case by case."
Short of requiring judges to stick to federally sponsored seminars, the government could, at least, require that whenever a judge attends any professional seminar, the government must pay his or her way. Then citizens might begin to ask questions about what they were paying for -- and whether it was really likely to promote judicial fairness.
Abner Mikva, a former member of Congress and chief judge of the United States Court of Appeals for the District of Columbia circuit, was counsel to President Clinton in 1994 and 1995.