[Congressional Record Volume 146, Number 100 (Thursday, July 27, 2000)]
[Senate]
[Pages S7906-S7907]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KERRY (for himself and Mr. Feingold):
  S. 2990. A bill to amend chapter 42 of title 28, United States Code, 
to establish the Judicial Education Fund for the payment of reasonable 
expenses of judges participating in seminars, to prohibit the 
acceptance of seminar gifts, and for other purposes; to the Committee 
on the Judiciary.


               the judicial education reform act of 2000

  Mr. KERRY. Mr. President, I send to the desk a bill for introduction. 
The bill is entitled the Judicial Education Reform Act of 2000. Mr. 
Feingold is cosponsoring the legislation.
  Mr. President, as the arbiters of justice in our democracy, judges 
must be honest and fair in their duties. As importantly, if the rule of 
law is to have force in our society, citizens must have faith that 
judges approach their duties honestly and fairly, and that their 
decisions are based solely on the law and the facts of each case. Even 
if every judge were uncorrupt and incorruptible, their honesty would 
mean nothing if the public loses confidence in them. Court rulings are 
effectively only if the public believes that they have been arrived at 
through impartial decision-making. The judiciary must avoid the 
appearance of conflict as fastidiously as it avoids conflict.
  Recent press coverage and an investigation by the public interest law 
firm Community Rights Counsel have revealed that more than 230 federal 
judges have taken more than 500 trips to resort locations for legal 
seminars paid for by corporations, foundations, and individuals between 
1192 and 1998. Many of these sponsors have one-sided legal agendas in 
the courts designed to advance their own interests at the expense of 
the public interest. In many cases, judges accepted seminar trips while 
relevant cases were pending before their court. In some cases, judges 
ruled in favor of a litigant bankrolled by a seminar sponsor. And in 
one case a judge ruled one way, attended a seminar and returned to 
switch his vote to agree with the legal views expressed by the sponsor 
of the trip.
  The notion that federal judges are accepting all-expense-paid trips 
that combine highly political legal theory with stays at resort 
locations from persons with interests before their courts creates an 
appearance of conflict that is unacceptable and unnecessary. At a 
minimum, it creates a perception of improper influence that erodes the 
trust the American people must have in our judicial system.
  Fortunately, the problems posed by improper judicial junkets can be 
remedied and the appearance of judicial impartiality restored. The 
Judicial Education Reform Act will seek to amend the Ethics Reform Act 
of 1989 to close the loophole that allows for privately-funded seminars 
by requiring federal judges to live by the same rules that now govern 
federal prosecutors. The proposal is modeled after the successful 
Federal Judicial Center. It will ensure that legal educational seminars 
for judges serve to educate, not improperly influence. It will ensure 
that these seminars improve our judiciary through better-trained and 
better-informed judges, not undermine it by eroding public confidence 
in judicial neutrality.
  Specifically, the legislation bans privately-funded seminars by 
prohibiting judges from accepting private seminars as gifts, providing 
appropriate exceptions, such as where a judge is a speaker, presenter 
or panel participant in such a seminar. The proposal establishes a 
Judicial Education Fund of $2 million within the U.S. Treasury for the 
payment of expenses incurred by judges attending seminars approved by 
the Board of the Federal Judicial Center. It requires the Judicial 
Conference to promulgate guidelines to ensure that the Board approves 
only those  seminars that are conducted in a manner that will maintain 
the public's confidence the judiciary. Finally, the proposal requires 
that the Board approve a seminar only after information on its content, 
presenters, funding and litigation activities of sponsors and 
presenters are provided. If approved, information on the seminar must 
be posted on the Internet.

  Mr. President, in introducing this legislation, I am not charging the 
federal judiciary or any single judge with improper behavior. I do not 
question the integrity of judges, rather I question a system that 
creates the clear appearance of conflict. I understand the need for 
education. Our economy has mainstreamed once exotic technologies in 
communication, medicine and other fields, and it is important that 
judges have access to experts to keep current on technological 
advances. And I recognize the need for judges to be exposed to diverse 
legal views and to test current legal views. The Judicial Education 
Reform Act legislation provides

[[Page S7907]]

$2 million for precisely that purpose. No judge will be without access 
to continuing education. But, that education will not be funded by 
private entities with broad legal agendas before the federal courts, 
or, as has happened in some of the most unfortunate cases, private 
entities with cases pending before participating judges.
  Finally, Mr. President, I ask unanimous consent to place in the 
record a statement from the Honorable Abner J. Mikva on this subject. 
Mr. Mikva is a former Chief Judge on the United States Court of Appeals 
for the D.C. Circuit and a current Visiting Professor of Law at the 
University of Chicago. His statement captures this the essence this 
issue and need for reform.
  There being no objection, the material ordered to be printed in the 
Record, as follows:

                      Statement of Abner J. Mikva

       The notion that judges must be honest for the system to 
     work is hardly a profound statement. As early as the 
     Declaration of Independence, our founders complained about 
     judges who were obsequious to King George, rather than the 
     cause of justice. But a pure heart is not all that judges 
     must bring to the judicial equation. For the system to work 
     as it should, the judges must be perceived to be honest, to 
     be without bias, to have no tilt in the cause that is being 
     heard.
       That perception of integrity is much more difficult to 
     obtain. After spending 15 years as a judge and a lifetime as 
     a lawyer and lawmaker, I can safely say that the number of 
     judges who were guilty of outright dishonesty--malum in se--
     were happily very few. Even taking into account that I 
     started practicing law in Chicago in the bad old days, the 
     number of crooked judges was small. But that is not what 
     people believe--then or now.
       The framers and attenders to our judicial system have taken 
     many steps to help foster the notion of the integrity of its 
     judges. Some relate to smoke and mirrors--the high bench, the 
     black robe, the ``all rise'' custom when the judge enters the 
     room. Some, like life tenure for federal judges, the codes of 
     conduct promulgated for all judges, are intended to create 
     the climate for integrity and good behavior. (The 
     Constitution limits the life tenure of federal judges to 
     their ``good behavior''.)
       All of those steps become meaningless when private 
     interests are allowed to wine and dine judges at fancy 
     resorts under the pretext of ``educating'' them about 
     complicated issues. If an actual party to a case took the 
     judge to a resort, all expenses paid, shortly before the case 
     was heard, it would not matter what they talked about. Even 
     if all they discussed were their prostate problems, the judge 
     and the party would be perceived to be acting improperly. 
     The conduct is no less reprehensible when an interest 
     group substitutes for the party to the case, and the 
     format for discussion is seminars on environmental policy, 
     or law and economics, or the ``takings clause'' of the 
     Constitution.
       That's what this report is about. It is about the 
     perception of dishonesty that arises when judges attend 
     seminars and study sessions sponsored by corporations and 
     foundations that have a special interest in the 
     interpretation given to environmental laws. It may be a 
     coincidence that the judges who attend these meetings usually 
     come down on the same side of important policy questions as 
     the funders who finance these meetings. It may even be a 
     coincidence that very few environmentalists are invited to 
     address the judges in the bucolic surroundings where the 
     seminars are held. But I doubt it. More importantly, any 
     citizen who reads about judges attending such fancy meetings 
     under such questionable sponsorship, will doubt it even more.
       The federal judiciary has a very effective Federal Judicial 
     Center. It already provides many of the educational services 
     that these special interest groups seek to provide to judges. 
     Admittedly, since the Center is using taxpayer funds and must 
     answer to Congress, the locals of their programs are not as 
     exotic. (The last ones I attended were in South Bend, Indiana 
     in October, and Washington, D.C. in December.) The purpose of 
     Center sponsored programs is as vanilla as it claims: there 
     is no agenda to get the judges to perform in any particular 
     way in handling environmental cases. As a result, the 
     programs are not only balanced as to presentation, but they 
     provide no tilt to the judges' subsequent performance.
       Unfortunately, the U.S. Judicial Conference, the governing 
     body for all federal judges, has punted on the propriety of 
     judges attending seminars funded by special interest groups. 
     It advised judges to consider the propriety of such seminars 
     on a ``case by case'' process. That delicacy has not begun to 
     stem the erosion of public confidence in the fairness of the 
     judicial process when it comes to environmental causes. One 
     of the special interest sponsoring groups publishes a ``Desk 
     Reference for Federal Judges'' which it distributes to all 
     its judge attendees. That must be a real confidence builder 
     for an environmental group that sees it on the desk of a 
     judge sitting on its case. One of the judges on the court on 
     which I sat has attended some 12 trips sponsored by the three 
     most prominent special interest seminar groups. I remember at 
     least two occasions where co-panelist judges took positions 
     that they had heard advocated at seminars sponsored by groups 
     with more than a passing interest in the litigation under 
     consideration.
       When I was in the executive branch, all senior officials 
     operated under a very prophylactic rule. Whenever we were 
     invited to attend or speak at a private gathering, the 
     government paid our way. Whether it was the U.S. Chamber of 
     Commerce or the A.F.L.-C.I.O., nobody could even imply that 
     the official was being wined and dined and brainwashed to 
     further some special interest. Experience showed that such a 
     policy was not sufficient in itself to restore people's 
     confidence in the Executive Branch; at least we didn't make 
     the problem worse.
       If the Federal Judicial Center can't provide sufficient 
     judicial education to the task, maybe the federal judges 
     could use such a prophylaxis. If the judges want to go 
     traveling, let the government pay for the trip. It may or may 
     not change the places they go or the things they learn, but 
     it will at least change the transactional analysis.

  Mr. FEINGOLD. Mr. President, at the very foundation of our system of 
justice is the notion that judges will be fair and impartial. Strict 
ethical guidelines have been in effect for years to remove even the 
hint of impropriety from the conduct of those we entrust with the 
responsibility of adjudicating disputes and applying the law.
  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. Some of these seminars 
have a clearly biased agenda in favor a certain legal philosophy. A 
recent report released by Community Rights Counsel found that at least 
1,030 federal judges took over 5,800 privately funded trips between 
1992 and 1998. The appearance created by these seminars is not 
consistent with the image of an impartial judiciary.
  Some of these seminars are conducted at posh vacation resorts in 
locations such as Amelia Island, Florida and Hilton Head, South 
Carolina, and include 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. Again, this is an appearance that 
is at odds with the traditions of our judiciary.
  One-sided seminars given in wealthy resorts funded by wealthy 
corporate interests to ``educate'' our judges in a particular view of 
the law cannot help but undermine public confidence in the decisions 
that judges who attend the seminars ultimately make. I am pleased, 
therefore, to join with my colleague from Massachusetts, Senator Kerry, 
to introduce the Judicial Education Reform Act of 2000. Our bill 
instructs the judicial conference to issue guidelines prohibiting 
judges from attending privately funded education seminars. The bill 
also authorizes $2 million per year over five years so that the Federal 
Judicial Center, FJC, can reimburse judges for seminars they wish to 
attend, as long as those seminars are approved by the FJC under 
guidelines that will ensure that the seminars are balanced and will 
maintain public confidence in the judiciary. And the bill makes clear 
that the FJC cannot reimburse judges for the expense of recreational 
activities at the seminars.
  Mr. President, I have expressed concern throughout my time in the 
Congress about the improper influence of campaign contributions and 
gifts on members of Congress and the executive branch. Community Rights 
Counsel's report has turned the spotlight on the judicial branch and 
what it reveals is not at all comforting. The influence of powerful 
interests on judicial decision-making through these education seminars 
should concern everyone who believes in the rule of law in this 
country. If judges are seen to be under the influence of the wealthy 
and powerful in our society, ``equal justice under law'' will become an 
empty platitude rather than a powerful aspiration for the greatest 
judicial system on earth. I believe this bill will help us fulfill the 
promise of that great aspiration, and I hope my colleagues will join 
Senator Kerry and me in supporting it.
  I yield the floor.
                                 ______