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Congress has an opportunity this year to defuse a controversy that has threatened to taint the federal judiciary. The dispute is contrived and unnecessary, and it should be resolved rapidly and in a bipartisan manner. As most Americans know, federal judges are frequently called upon to rule in cases involving highly complex medical, scientific, technological, and economic questions. Typically generalists, few judges have formal education or training in such issue-specific areas. We know firsthand. For 15 years the Foundation for Research on Economics and the Environment (FREE), an organization founded in 1985, has sponsored educational seminars for federal judges. We offer programs on environmental policy, science, and risk analysis, co-sponsored by Montana State University. Our educational programs in the past have attracted criticism from political activists. Fortunately, a pending bill in Congress offers hope for resolving this dispute in a way agreeable to judges, to educational groups offering judicial seminars, and perhaps even to the political critics of such seminars. THE PUBLIC GOOD Educational seminars for the federal judiciary have long been organized by law schools, bar associations, and other nongovernmental organizations. Sponsors include the American Bar Association, George Mason University, Princeton University, the Institute for Judicial Administration at New York University School of Law, and Yale University, among others. The programs span the realm of academic thought and expertise, and they supplement programs provided by the Federal Judicial Center. The continuing education provided by FREE and other organizations serves a valuable public purpose, advancing social and jurisprudential goals. As then-Chief Justice William Rehnquist said at the American Law Institute’s 2001 annual meeting, “Seminars organized by law schools, bar associations, and other private organizations are a valuable and necessary source of education.” To protect the independence of the federal judiciary, the Federal Advisory Committee on Codes of Conduct of the Judicial Conference issued an opinion in 1980 that speaks directly to the question of whether judges “may with propriety” attend such educational seminars and have their expenses paid by the sponsoring organizations. The opinion, No. 67, has undergone only minor revision in the past 26 years.� The relevant language states: “The education of judges in various academic disciplines serves the public interest.� That a lecture or seminar may emphasize a particular viewpoint or school of thought does not itself preclude a judge from attending.�Judges are continually exposed to competing views and arguments and are trained to weigh them.” This language not only emphasizes the importance of continuing education for judges but also indicates that it is important for judges to hear different and competing viewpoints. ACTIVIST FANTASIES Since 1998 a “progressive” activist organization, the Washington, D.C.-based Community Rights Counsel (CRC), has generated financial support by orchestrating a campaign to ban federal judges from attending independently funded educational seminars. FREE has been the primary target. The main criticism of our seminars has recently shifted from content, which is clearly unassailable. (For example, 10 of our seminars have featured 2005 Nobel Prize winner Thomas Schelling, and Harvard and Chicago affiliations are the most common among our speakers.) Instead, critics now focus on our reimbursement of judges’ expenses. The CRC fantasizes that our programs are lavish corporate-sponsored getaways at posh resorts intended to brainwash intellectually pliant federal judges. They are none of that: neither lavish nor sponsored by special interests nor intended to influence anyone. In fact, three independent peer reviews last year gave our program high praise. Alan Bersin and Sherry Matteucci, U.S. attorneys under President Bill Clinton, reviewed our programs and concluded, “The FREE seminar program has presented a varied, balanced, intellectually challenging and rigorous series of educational opportunities for participants.” Similarly, a survey of 40 law professors who have attended our seminars found that the attendees considered our programs “remarkably balanced in terms of topics covered and the perspectives of presentations.” Most recently, four prominent economists concluded that our programs attract “top quality people” with “international reputations.” These reviews are posted on our Web site. JUDGES APPROVE Our foundation receives some general support from corporations, about one-fifth of our total income. For the sake of transparency, all the corporate donors are listed on our Web site. Because we receive corporate funding, the CRC argues that it is wrong for judges to attend our programs. The critics ignore the fact that other organizations sponsoring judicial seminars — including all universities, the Aspen Institute, and the women’s advocacy group Legal Momentum — also receive corporate funding. Our motivation for providing judicial education is to expand judges’ expertise and to foster innovative thinking. We have found that thematic education promotes better understanding of specific issues. For example, on Oct. 8-13, FREE will offer the seminar “From Terrorism to Tornados: Mitigating Disruptions to Civil Liberties and the Economy.” Judges tell us such an approach provides a superior framework for evaluating arguments. As the late Richard Arnold of the U.S. Court of Appeals for the 8th Circuit said of one of our seminars: “[FREE's program] was of the highest intellectual quality of any seminar I have attended since going on the bench almost 22 years ago. . . . It may never help me decide a specific case, but it will broaden the minds of all those that heard it, and that’s more important.” This important goal must be accomplished while respecting the integrity of the federal judiciary. The corrosive effects of compromised courts are obvious. Thus, efforts to eliminate the appearance of judicial impropriety should be applauded and supported. On this we agree with the CRC. So let’s take the divisive funding issue off the table. Many states provide funds for state judges to attend educational-enrichment programs. Why not the federal government? ON THE RIGHT LIST? Sen. Patrick Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee, has introduced legislation (S. 2202) that could end this controversy. Popularly known as the Fair and Independent Judiciary Act of 2006 (its formal title is the Federal Judiciary Ethics Reform Act of 2006), the legislation would establish a Judicial Education Fund, which would provide modest funds for federal judges to attend educational seminars. Appropriate expenses would include transportation, food, lodging, fees, and materials. Republicans and Democrats alike should support this provision. Leahy has asked Congress for $2 million a year for the fund, or about $2,000 a year for each of America’s approximately 1,000 federal judges. In a $13 trillion economy, $2 million seems a small amount, considering the good it could do. Unfortunately, other provisions in Leahy’s bill are at odds with our constitutional protections of freedom of speech. Leahy would allow judges to attend only programs approved by the Federal Judicial Center, jeopardizing the very idea of an “independent” judiciary.�It is harmful to our judges to insist they be constrained to ideas pre-approved for consumption. Rehnquist addressed this matter in his 2001 remarks to the American Law Institute, when the late chief justice put it like this: “The notion that judges should not attend private seminars unless they have been vetted and approved by a government board is a bad idea. It is contrary to the public interest in encouraging an informed and educated Judiciary, and contrary to the American belief in unfettered access to ideas.” Rehnquist then quoted Justice Oliver Wendell Holmes Jr.’s famous dissent in Abrams v. United States (1919) that “the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market. . . . [W]e should be eternally vigilant against attempts to check the expression of opinions that we loathe.” Similarly, the 2nd Circuit, in the 2001 case of In re Aguinda, offered a historical perspective on the difficulty of preserving government neutrality on controversial issues. It observed, “A skeptic might note that one Winston S. Churchill was often banned from speaking over the British Broadcasting Corporation during the years leading to the outbreak of World War II because his views on appeasement constituted criticisms of the government.” Judges have told us they fear that the provision requiring Federal Judicial Center approval might deny judges access to the full range of academic thought. Besides, it’s demeaning to imply that judges can be easily swayed simply by attending one of our — or anybody else’s — seminars. These are smart, mature, sophisticated men and women at the top of their profession, disposed by training to be discerning, critical, and alert to shoddy arguments. We believe that a broadly educated federal judiciary serves jurisprudential as well as societal goals. Constructive policy innovations are advanced by civil discourse and exposure to a rich marketplace of ideas. FREE is making an important difference by promoting sound thinking on environmental and economic issues. If Leahy’s funding provision is enacted (and we hope it is), FREE would be happy to compete with other programs for judges’ most scarce resource — discretionary time.
John A. Baden is chairman and Pete Geddes is executive vice president of the Foundation for Research on Economics and the Environment in Bozeman, Mont.

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