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The "good government" movement in Washington has taken aim at fat-cat lobbyists, free spending campaign donors, and earmark producing lawmakers. Its latest target: judge-inviting law schools?
An association of law deans and the Judicial Conference of the United States, among others, are objecting to an amendment that Sen. Russell G. Feingold successfully attached late last month to a U.S. Senate bill that would significantly elevate the pay of federal judges. Feingold, who has made his reputation in Congress largely as a proponent of government reform, through his co-sponsorship of the landmark campaign finance bill that bears his name (and that of Sen. John McCain, the leading Republican presidential candidate), sponsored an amendment that would restrict the outside income of federal judges and Supreme Court justices in two ways.
First, it would prohibit them from accepting any sort of gift, income or even travel reimbursement from programs designed to educate federal or state judges, except for programs sponsored by a bar association, a judicial association, or a government. (Programs at public universities are exempted from the exemption, and so are barred, as are private colleges.) Feingold's amendment would also limit to $2,000 the amount that a judge or justice could receive in income or reimbursement from any "single trip or event" sponsored by any entity but a bar or judicial association or a federal, state or local government. Again, public colleges, like private ones, would be subject to the limit, and a judge would have a maximum annual limit of $20,000 in such reimbursements.
Feingold, who questioned the need for the roughly $50,000 pay raise called for in the underlying bill, S. 1638, said in introducing his amendment that it was designed to "address an ethical issue that has developed over the past several years:" the possibility that judges' impartiality was being undermined by outside income they received.
"In recent years, there have been disturbing reports of judges participating in legal education seminars sponsored and paid for by organizations that simultaneously fund federal court litigation on the same topics that are covered by the seminars," he said in comments introducing his amendment. "Reports have shown that thousands of federal judges have gone to such seminars, some of which are conducted at posh vacation resorts in locations such as Amelia Island, Florida and Hilton Head, South Carolina, and last an entire week so that there is ample time for expense-paid recreation. These kinds of education/vacation trips, which have been valued at over $7,000 in some cases, create an appearance that the judges who attend are profiting from their positions. This is an appearance that is at odds with the traditions of our judiciary."
Feingold's other objection, he said, was to "the practice among some judges of accepting reimbursement for significant travel expenses and honoraria for speaking or teaching engagements." His proposed limits on such payments, he said, "should cut down on unusually lavish trips that seem more like junkets than public service. And they would eliminate large direct payments for single speeches or lectures. Sometimes these fees amount to several thousand dollars. I think that’s excessive, and certainly it is unnecessary if the large pay raise now under consideration passes."
Although Feingold did not identify any individual programs or judges as engaging in the behavior his amendment was designed to address, the first part of his measure was widely seen (particularly among conservative bloggers and media types) as a swipe, in part, at George Mason University School of Law's Law and Economics Center, one of several such programs that have come under attack from the Community Rights Counsel, which describes itself as opposing "judicial lobbying by special interests." (Not all such programs are seen as right-leaning, though; Gail Heriot, a law professor at the University of San Diego, noted on her blog late last year that a handful of other universities have programs that train judges, including a program at the University of California at Los Angeles's law school that "provides state and federal judges with substantive training on legal issues impacting lesbian, gay, bisexual, and transgender people.)
Francis H. Buckley, executive director of the George Mason program and associate dean and Foundation Professor of Law at the university's law school, insists that the center "is by no means ideological" but believes it is being targeted because of a perception that it is. "We are saddened that what is a highly academic program, which has a list of donors and supporters from all over the political spectrum, gets singled out."
While the section of Feingold's amendment aimed at restricting judicial education programs would affect relatively few colleges and universities, the limits on reimbursement for judges' travel could limit the programming of most law schools. Many schools invite Supreme Court justices and federal appeals court judges to speak to their students, judge moot court competitions, and even teach short courses, and the reimbursement caps contained in the Senate bill, as amended, would make it extremely difficult for West Coast institutions, particularly, to bring Supreme Court justices to their campuses.
"We brought Justice [Antonin] Scalia to our campus, and the airfare alone for two roundtrip, first class tickets [for the justice and his wife] was almost $5,000," said Thomas Cleary, director of community and government relations at the University of San Diego. With a $2,000 cap per trip, San Diego would "probably be unable to get him to come out again," and the $20,000 annual cap per judge -- which was raised from $5,000 in an earlier version of Feingold's amendment -- would greatly intensify competition among law schools to get in-demand judges in front of their students, he said.
The Judicial Conference of the United States, the administrative body that oversees the federal court system, agrees. In a letter last month to Sen. Patrick Leahy (D-Vt.) and Sen Arlen Specter (R-Pa.), the chairman and senior Republican, respectively, on the Judicary Committee, officials of the conference said that the amendment would "severely and unnecessarily restrict judges from traveling to law schools for lectures, conferences, and moot courts ... activities that provide enormous benefit to the public, the bench, and the bar." The Judicial Conference letter argued that existing policies requiring sponsors of judicial seminars to disclose the sponsorships and content of their programs "are working, and there is no need to regulate further judges' educational opportunities."
That plea and others were unsuccessful, as the Judiciary Committee not only approved Feingold's amendment but specifically rebuffed an amendment from Sen. Jeff Sessions (R-Ala.) that would have exempted colleges and universities from the restrictions and limits on judges' travel and income.
So opponents of the measure are directing their pleas at Senate leaders. David E. Van Zandt, dean of Northwestern University's law school and head of the American Law Deans Association, said the group's board is preparing a letter to Senate Majority Leader Harry Reid of Nevada urging that the Feingold measure be stripped from the overall judges' pay legislation, which the association supports. While Northwestern has its own small judicial education program, through its Searle Center on Law, Regulation and Economic Growth, Van Zandt said the deans are particularly concerned about the restrictions on reimbursement for judges' travel, "because every school has federal judges come in," he said. "The Supreme Court justices have been very generous with their time," and "it's not that there's some scam on the public where the justices are getting rich off this."
Leading Republicans, including Sen. Jon Kyl of Arizona, who originally favored the concept behind Feingold's amendment but withdrew his support once details of it emerged (and after he'd been pounded by usually friendly pundits), have vowed to oppose the entire judges' pay bill if the Feingold amendment stays attached to it. And aides to Feingold have suggested that they might be open to changing the limitations to allow for more flexibility for institutions that, because of their locations, could be at a major disadvantage because of the reimbursement caps.
