SPEECHES
Thank you Traynor for the kind introduction. This was to be Charlie Wright's last meeting as President of the American Law Institute and I know that the Institute and our profession miss him. I thought I would speak today about one of Charlie's favorite subjects: legal education. Last July, legislation was introduced in Congress that would sharply limit the educational opportunities available to federal judges. The bill was proposed after a private organization issued a report critical of judges' attending private educational seminars at the expense of the seminar sponsors. Known as the Kerry-Feingold bill, it would prohibit federal judges from accepting "anything of value in connection with a seminar." The bill would give the Board of the Federal Judicial Center the power to authorize government funding for judges to attend only "seminars that are conducted in a manner so as to maintain the public's confidence in an unbiased and fair-minded judiciary." Critics of privately funded seminars refer to them as "junkets"; the television program 20/20 recently aired a segment about a seminar held last winter at a resort in Tucson that was attended by a number of federal judges. One could easily get the impression from this presentation that the real problem is too many judges playing golf in the middle of the afternoon in Tucson in February. There was a time when federal judges worked less than they do now; I remember many years ago a judge referring to an appointment to one of the courts of appeals as being a "dignified form of semi-retirement." If that was ever true, it long ago ceased to be. The pressure to keep up with ever-increasing dockets requires and receives hard work from these judges. And so far as the locale of any seminar is concerned, does anyone really think that a seminar in Tucson in August or in Milwaukee in January would attract as many participants if the scheduling were reversed? If you do think that, I suggest you schedule the next meeting of the ALI here in Washington for the middle of August. The principal vice of the Kerry-Feingold bill is that it lays down a vague standard: "The seminar must not be conducted in a fashion that might undermine 'the public's confidence in an unbiased and fair-minded judiciary'" and it confides to a government board -- the board of the Federal Judicial Center -- the obligation to administer this standard -- an obligation which the Board has firmly requested not be placed upon it. The approach of the Kerry-Feingold bill is antithetical to our American system and its tradition of zealously protecting freedom of speech. Justice Holmes famously noted (in his dissent in Abrams v. United States, 250 U.S. 616, 630 (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 . . . . " In his essay "On Liberty," John Stuart Mill pointed out the risks inherent in suppressing ideas:
Existing legal and ethics provisions quite properly restrict judges from accepting benefits from parties to litigation before them and provide for disqualification in any instance where a judge's impartiality might reasonably be questioned. The current financial disclosure requirements also ensure that information regarding attendance at private seminars at the expense of the seminar sponsors is readily available to the public. Both the Judicial Conference of the United States and the Board of the Federal Judicial Center are on record as opposing the Kerry-Feingold bill. And the FJC Board has pointed out that the legislation would jeopardize the Federal Judicial Center's ability to cosponsor seminars with law schools and other organizations. The legislation is also opposed by the Federal Judges Association and the deans of a number of law schools. The Federal Judicial Center has done an exceptional job providing continuing education for federal judges and court personnel. But the Center cannot provide education to every federal judge each year on the wide array of subjects that judges confront every day, especially issues that are primarily local. And the FJC Board should not be asked to decide for individual judges which seminars they may attend. As Adam Smith explained in the context of economic regulation 225 years ago,
Seminars organized by law schools, bar associations and other private organizations are a valuable and necessary source of education in addition to that provided by the Federal Judicial Center. The effect of the Kerry-Feingold bill would be dramatically to restrict the information made available to federal judges through seminars by requiring that the content of that information and the identities of its presenters be weighed against a prediction of public confidence in fair-mindedness. Who knows whether seminars sponsored by one or another law school, or even by this body -- the ALI -- would pass that test? 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. Thank you.
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