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Chicago-The chief judge of the 7th U.S. Circuit Court of Appeals, Joel Flaum, warned a conference of judges and lawyers last week that attending private expense-paid seminars, lax judicial discipline and flawed financial reporting by judges will only aggravate already testy relations with Congress. “In my 32 years as a judge I have never seen relations between the judiciary and Congress more strained,” he told the circuit’s annual conference of judges meeting in Chicago. Flaum issued the sober warning during his farewell address to the annual judicial conference. He steps down after six years as chief judge on Nov. 26 when he turns 70 years old. Flaum will be succeeded by Judge Frank Easterbrook, appointed to the court in 1985 by President Ronald Reagan. The judge said bills that would open the federal courts to cameras and create an inspector general to monitor allegations of judicial misconduct-as well as judicial failures to report accurately on financial holdings-have opened a wedge between the courts and Congress. “You should take as much care with your financial disclosure statements as you do with your tax returns,” he told the appellate, district court and bankruptcy judges. Seminars: a sensitive issue “That is absolutely right,” said Steven Lubet, a judicial ethicist and a law professor at Northwestern University School of Law. “Some judges resent the requirement and some judges treat it less seriously than they should,” he said. “Judges should be more personally attuned to what they are doing and care about it. “There is a natural tension between the two branches because the legislature is partially populist in nature while the judiciary, by design, is more aristocratic,” he said. One sensitive issue has been judicial attendance at privately hosted seminars, generally in luxury resorts and paid for by companies or groups whose membership may litigate regularly before the courts. Flaum told his colleagues to beware of the public message that such travel sends to Congress at a time when every action by the judiciary is under scrutiny. “I believe that is an issue that troubles many members of the House and Senate,” he said in an interview after the conference. Some complain that in these seminars, judges can be lobbied inappropriately, he said. “I wanted the judges to reflect on the impact of this,” he said. Judicial ethicist Stephen Gillers at New York University School of Law praised Flaum’s criticism of private seminars. “There has been a wide chasm between the perception by the public and members of the bar on the one hand and the perception of federal judges on the other about the propriety of private seminars.” He said of Flaum’s critique, “maybe this could be the beginning of a bridge.” Lubet said private seminars “are not propaganda but they do present a particular point of view.” Judges say that they are not swayed and certainly believe it. “The problem is you can’t expect the public to believe that,” Lubet said. “The problem with partiality is you don’t recognize it when it happens. Human beings are notoriously poor evaluators of their own partiality.” A bill by Representative James Sensenbrenner, R-Wis., to create an inspector general to monitor misconduct by judges has come in for particularly intense criticism, including by prominent conservatives. During a speech to the 7th Circuit conference, Ken Starr, dean of Pepperdine University School of Law and the former Whitewater special prosecutor, called creation of an inspector general “utterly unnecessary. If anyone needs an inspector general it is Congress,” he said. Only a few days earlier, during a Detroit conference of 6th Circuit judges, former U.S. Solicitor General Ted Olson, now with Gibson, Dunn & Crutcher of Los Angeles, roused wide applause when he called the inspector general proposal “ridiculous.” Whether the current tensions between Congress and judges abates is hard to predict. Lubet said, “There is a steady undertone of dissatisfaction with the judiciary’s self-regulation. Whether it is going to stay that way or explode, we will not know until it happens.”

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