HOW IS THIS LEGAL?
Federal judges remain free to accept lavish gifts and vacations from lawbreaking corporations they’re supposed to hold accountable under the law
By Matthew Goodkin-Gold, Demand Progress Intern
Picture this: A federal judge votes to uphold a key provision of the Endangered Species Act against attacks from timber companies. Less than two weeks later, those same timber interests pay for that judge to fly out to scenic Island Park, Idaho, stay for a week in luxurious accommodations, and enroll in a seminar series on the merits of “free market environmentalism.” When the judge returns from the expenses-paid vacation, he grants a rehearing to his timber company benefactors, changes his vote, and writes an opinion striking down the Endangered Species Act provision.
This isn’t a hypothetical. This really happened, and situations like it continue to happen throughout the country: Corporate-sponsored, “educational” junkets are a fixture of the American judicial system — at times drawing as many as one in ten federal judges each year — and they are deeply unethical.
The standard judicial junket involves oil, pharmaceutical, and insurance companies contributing massive gifts in the form of expenses-paid retreats, often flying judges to cushy resort locations where they can be wined, dined, and “educated” in highly biased pro-Big Business economic and legal theory. Corporate executives are occasionally even allowed to give the educational presentations to judges themselves. Despite a public outcry against this highly troubling practice from ethics experts, the editorial boards of more than thirty publications, and judges themselves, very little has been done to stop it.
Judicial seminars are brought to you by fossil fuel companies, insurance agencies, big pharma firms, and the personal foundations of the Koch brothers and other members of their political network. As these groups surely know, seminar-going judges are quite likely to see the corporations paying for their vacations in court later on. There have even been multiple instances of judges attending seminars sponsored by corporations involved in cases that those judges were presiding over at the time of the seminars.
These judicial junkets are unethical for three reasons. First, the size of the gifts that seminar sponsors provide to judges by paying their seminar expenses is enormous. For some seminars, judges are effectively reimbursed more than $10,000 each per trip. Accepting a gift of any size and nature can subtly affect a judge’s attitude toward a litigant. But accepting a $10,000 gift toward resort accommodations in locations such as the small island of Duck Key, Florida and the famed tourist town of Steamboat Springs, Colorado should set off blaring alarms that a judge’s impartiality could be compromised.
Second, the sources of funding for these seminars is dubious. Seminars would be far less problematic if funding were provided by groups truly interested in judicial education for its own sake. However, this is not the case: judicial junket sponsors have direct financial interests in swaying the opinions of judges. Sponsor lists read like a who’s who of companies that frequently appear in federal court and thus stand to directly gain from judges subscribing to their free market ideology.
The third problem with private judicial seminars is their clear and extreme bias. Defenders of judicial junkets like to frame the trips as opportunities for judges to be educated by experts on the cold hard facts of issues such as the intersection of law and economics. This characterization is wildly misleading. Not only do the vast majority of judicial junkets demonstrate an obvious and radical bias, they all tend toward the same radical bias: “pro-market, anti-regulatory seminars offering a single and unchallenged line of reasoning in areas of law with many competing views.”
It is unreasonable and obviously disingenuous to pretend that judicial junkets are philanthropic endeavors to provide continuing education to the federal judiciary. The George Mason University Law and Economics Center — currently the most prolific provider of judicial junkets — proudly admits its bias right on its website. GMU LEC characterizes its views as “recogniz[ing] that the US civil justice system imposes tremendous burdens on American businesses through high discovery costs, regulation through litigation, class action abuses, and litigation or the threat of litigation.”
GMU LEC’s “highly respected experts” tend to come from institutions known for their unabashed anti-regulation slant: the Mercatus Center, the Hoover Institute, the Reason Institute, and George Mason Law School. While token moderates and liberals are occasionally thrown into the mix, one of the leading forces behind GMU’s seminars has been caught admitting to the liberals’ role as punching bags for the free-market folks. George Mason’s seminars, and others like them, do not exist for the sake of education. They exist for the sake of corporate indoctrination.
Current judicial ethics rules theoretically already prohibit judicial junkets. As part of their ethical obligation to promote “public confidence in the integrity and impartiality of the judiciary,” judges must avoid circumstances in which their “impartiality might reasonably be questioned.” There should be no doubt that federal judges who attend private seminars are failing to promote confidence in the integrity and impartiality of the judiciary.
When a judge accepts lavish gifts from a corporation and then issues a favorable ruling to that corporation, the appearance of corruption is unshakeable. When at least one in every four judges who attended a GMU LEC seminar since 2013 went on to issue a favorable ruling to a sponsor, the entire judicial junket system reeks of corruption. Whether these favorable rulings are actually corrupt is irrelevant: judicial conduct is unethical if it even appears corrupt.
Sure enough, evidence indicates that sponsors’ returns on providing lavish vacations to judges have been fantastic: the Community Rights Counsel found that in all ten of the most activist anti-environmental court rulings of the 1990s, the opinion was written by a judge who had attended a privately funded judicial seminar. Meanwhile, several of the nation’s most conservative federal judges did not attend privately funded seminars, and subsequently did not issue a single “strikingly activist” anti-environmental opinion between them.
Attendance at corporate-funded seminars must be banned for judges. Without an outright ban from the Judicial Conference — the policy making body for the federal court system — judges will continue to be fed one-sided economic principles that corporate sponsors hope they will later use to justify pro-business rulings.
So far, the Judicial Conference’s only substantive action against private judicial seminars was a 2007 ruling requiring transparency in seminar attendance.
The conference may have believed that transparency would clean up judicial junkets, but time has shown that hope to be completely unrealistic. Between 2008 and 2012, about 185 federal judges attended judicial education seminars. From 2012 to today, 73 judges have disclosed attendance at privately funded seminars. Corporations are still sponsoring seminars, and judges are still giving them favorable rulings.
The Judicial Conference must recognize that transparency measures have not and will not fix this problem. At this September’s meeting, the Judicial Conference must ban judges from accepting lavish gifts from corporations if they seek to protect the impartiality of the judiciary.
Want to make your voice heard and impact this issue? Click here to sign the petition urging the Judicial Conference to ban corporate-sponsored judici
