For the past several years Community Rights Counsel has been crusading against privately funded conferences for federal judges. I have been critical of this campaign (see, e.g., here). Based on my read of the charges, and my attendance at some of the conferences that have been criticized, I think that CRC's claims that such conferences pose an ethical problem for judges are unfounded. If federal judges are so malleable that hearing presentations on various issues by prominent academics is a threat to judicial integrity, judicial seminars would be the least of our concerns.

CRC purports to be motivated by a concern for judicial ethics, rather than a specific ideological agenda. This article by Ed Whelan casts doubt on that claim. While targeting conferences hosted by George Mason University's Law and Economics Center or the Foundation for Research on Economics and the Environment in conjunction with Montana State University, CRC failed to critique conferences run by the Aspen Institute. CRC's Doug Kendall claims the relevant Aspen seminars have "a much more balanced profile" than those he attacks, but Whelan's article casts doubt on that claim too. If anything, the Aspen seminars have been less balanced. But this is a sideshow anyhow, as CRC has never suggested that balanced programs would obviate its concern about the private funding of such programs. If privately funded seminars for federal judges are a problem — and I do not beleive they are — then there is no reason to let Aspen off the hook.

UPDATE: In the comments below, Steve Lubet takes issue with my argument that: "If federal judges are so malleable that hearing presentations on various issues by prominent academics is a threat to judicial integrity, judicial seminars would be the least of our concerns."

By that reasoning, very little short of outright bribery would be an ethical concern. You could make the same claim about: most ex parte communications; investments in parties to the litigation; gifts from litigants; prior firsthand knowledge of fact in dispute; and relatives appearing as counsel. Yet we have statutes and rules — that are by and large uncontroversial among the judiciary — that either prohibit such conduct or provide for disqualification.

I don't think the analogy is apt. As another commenter named Steve notes, these rules all involve parties to litigation appearing before the judge or otherwise concern pending cases. CRC's criticism of the various judicial conferences is not so narrow — and if it were they would have no case, as these seminars (with only one exception of which I am aware) typically involve presentations by other judges and academics on broad legal and economic issues, not presentations by representatives of litigants. Thus, the bulk of CRC's attacks have focused on the content of these seminars or the sources of funding — even though corporate funders are typically not present at the conferences.

My point is that if simply attending privately funded seminars and hearing presentations is a concern — as CRC suggests it is — then we should be concerned abot judges' ability to evaluate and assess the arguments put forward in their courts by litigants. In the end, I find CRC's arguments unpersuasive — as, apparently, has the Judicial Conference, which recently adopted rules for such conferences far less stringent than CRC has sought.

FURTHER UPDATE: CRC's Doug Kendall comments here.