From the WSJ Opinion Archives
FROM THE HEARTLAND
Junket-Yard Dogs
The Democrats' latest phony attack on judicial nominees.
A year ago, Democrats in Congress were hot and bothered that several dozen Bush administration appointees and judicial nominees belonged to the Federalist Society, a conservative Washington-based organization with chapters at most law schools around the country. When it turned out that the Federalist Society wasn't guilty of much more than organizing debates on legitimate legal issues--debates in which liberals invariably participated--the harassment abated.
But it's never long before the vast right-wing conspiracy is spotted anew. In confirmation hearings before the Senate Judiciary Committee last week, Democrats interrogated Judge D. Brooks Smith, a nominee for the Third U.S. Circuit Court of Appeals, about his participation in seminars held by two organizations that are often viewed as bastions of conservative thought, the Foundation for Research on Economics and the Environment of Bozeman, Mont., and the George Mason University Law and Economics Center of Alexandria, Va.
Sen. Russell Feingold, a Wisconsin Democrat, was particularly exercised that Mr. Smith, currently a federal district judge in western Pennsylvania, attended no fewer than a dozen weeklong, expenses-paid seminars held by the two groups between 1992 and 2001. The seminars, held in Montana dude ranches and Arizona resort hotels, had a total value of $30,000, Sen. Feingold asserted. And since both FREE and LEC receive donations from corporations and conservative-oriented foundations, the implication was clear: When it comes to President Bush's judicial nominees, justice is for sale.
It's not a new charge from Mr. Feingold, who along with Sen. John Kerry, a Massachusetts Democrat, two years ago sponsored a bill that would limit judges to seminars approved by the Federal Judicial Center, an arm of the courts. The legislation died after Chief Justice William Rehnquist lambasted the idea as an attack on "our American system and its tradition of zealously protecting freedom of speech." He noted that legal and ethical provisions already exist barring judges from accepting benefits from parties that appear before them.
But that hasn't stopped the attacks. A self-described "public interest law firm," the Community Rights Counsel of Washington, has for years made a specialty of mining judicial expense reports and sending out alerts to newspapers, TV networks and others about "junketing judges" and "ideological boot camps." Douglas Kendall, CRC's director, charges that there have been "close correlations" between several of Judge Smith's rulings and "what he may have learned at the George Mason programs."
But Judge Smith, a Republican, may have been inclined to rule in such a fashion anyway. And the argument that the seminars represent a "gift" that might sway judicial rulings, as Mr. Kendall charges, is highly dubious too. Both FREE and LEC sport a highly diversified list of contributors; no single company provides more than 2% of their funding. And FREE uses only foundation money to support its judicial programs.
Besides, if there is something tainted about the programs, it doesn't seem to have occurred to the more than 600 judges who have participated in LEC seminars over a 25-year period and the more than 100 who have attended FREE seminars since 1993.
George Steeh, a Detroit-based federal district judge appointed by President Clinton in 1998, has attended both groups' seminars. "In both cases it was hard work and I personally didn't detect the bias that the critics assume," says Judge Steeh, who considers himself a political liberal. "There were speakers from both sides."
Not that the organizers of the seminars hide their free-market viewpoint. The George Mason programs are rooted in a 25-year-old "law and economics" movement that seeks to educate lawyers about the economic dimensions of many legal issues--antitrust law or regulation of the airwaves, for example. FREE was established in 1993 by John Baden, who has run environmental-studies programs at Montana State, Utah State and the University of Washington. He believes that use of market forces and property rights is often a better way to protect the environment than government regulation. (If Mr. Baden is a tool of industry, however, it will come as news to many corporations. He stoutly opposes government subsidies to the private sector.)
In any case, notes Judge Steeh, "Our training as judges is to think critically about everything. To suggest we should be exposed to such thoughts . . . is just ridiculous. It's anti-intellectual."
A look at the Web sites of both organizations also suggests that if these are ideological boot camps, they are boot camps of a very high order. At a one-week LEC seminar on "Science in the Courts" last year, for example, the presenters ranged from a Berkeley philosophy professor talking about "Philosophical Realism" to a Harvard expert on risk assessment talking about "The Value of Life in Legal Context." Participants are expected to read on average 500 pages of background material before they even arrive. "It was of the highest intellectual quality of any seminar I have attended since going on the bench almost 22 years ago," Judge Richard Arnold, a Carter appointee who sits on the Eighth Circuit in Little Rock, Ark., said after a FREE session two years ago.
What seems to bug the left is the notion that conservative ideas should be discussed at all. In this view, there is only one true faith, and any deviation from it is considered, well, deviant. A former Judiciary Committee chairman, Delaware Democrat Joe Biden, at least was honest last week when he declared that while he didn't doubt Judge Brooks's integrity, he intended to vote against him anyway on grounds that his conservatism places him "outside the mainstream."
Rather than whining about groups like LEC and FREE, the left might be better off setting up its own "ideological boot camps" and letting the market decide the winner. That's what a group of liberal lawyers did after failing to put a dent in the Federalist Society; last year they founded the American Constitution Society, which is now attempting to establish itself as a liberal alternative at law schools--though most law-school faculties already are pretty far to the left, which is one reason that groups like the Federalist Society got started in the first place.
Of course, as FREE's Mr. Baden notes, there may be a reason the left has been reluctant to compete: "Why take the risk of exposing yourself to the sort of questions you get from experienced, tough-minded federal judges if what you have to say doesn't make much sense?"
Mr. Bray is a staff columnist at the Detroit News. His OpinionJournal.com column appears Tuesdays.
