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Getting Schooled: Judicial Education and the Corporate Court

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with Kendall Scott

Senator Elizabeth Warren made headlines last week when she called out the Obama administration for the lack of professional diversity among judges on the federal bench. In a speech before members of the American Constitution Society, Warren encouraged the audience to put pressure on the administration, the Senate, and the media to adjust the "increasingly brazen and pro-corporate tilt of the Supreme Court and the D.C. Circuit," in particular.

Senator Warren focused heavily on the role judicial nominations have played in establishing the apparent pro-corporate bias, and noted that "conservatives are organizing themselves to put serious pressure on Congress and the courts to strip away some of the most important rights and reforms that we have fought so fiercely for."

Of equal concern to the lack of professional diversity on the bench should be the utilization privately funded judicial educational seminars to further the conservative agenda. Often sponsored by multinational corporations or ideologically-driven foundations, the typical schedule of panel discussions and lectures at such seminars (with titles ranging from topics such as "The Moral Foundations of Capitalism," "Corporations and the Limits of Criminal Law" and "Terrorism, Climate & Central Planning: Challenges to Liberty & the Rule of Law"), has faced criticism as veiled efforts to promote particular world-views and influence judicial decisions.

Decisions in favor of groups like the American Petroleum Institute and the Chamber of Commerce by judges who attended seminars sponsored by the same institutions have led to the perception that corporations and conservative groups can buy judicial influence.

Despite long-standing scrutiny, privately funded judicial conferences remain popular. The Center for Public Integrity reports that between 2008 and 2012 about 185 federal judges attended one or more expenses-paid seminar. This amounts to about 11 percent of the federal judges of the United States.

The Judicial Conference of the United States has tried to address concerns surrounding improper influence through privately funded seminars in 2007 by instituting a disclosure requirement.

Participating judges and program providers must disclose judges' attendance, the program title, dates and location, topics presented, speakers, and sources of financial support, and any sponsors. This information is made available to the public on each local court's website and has been compiled into a comprehensive, searchable database by the Center for Public Integrity. Frustratingly, when seminars are funded from an institution's "general revenue," sponsor information is not available.

This disclosure is intended to enable judges to better evaluate where conflicts exist and whether they should attend a particular event. The required disclosures furthermore allow litigants to learn of a judge's past participation and to raise objections to a particular judge hearing their case.

Even with increased transparency, however, a fundamental tension exists between privately funded judicial education and the need for unquestionably impartial courts. Ongoing judicial education is of key importance, but the appearance that it has been co-opted by a particular interest or ideology harms the integrity of our judicial system and undermines access to meaningful, independent justice.

Canon 1 of the Code of Conduct for United States Judges instructs "an independent and honorable judiciary is indispensable to justice in our society." Meaningful access to remedy relies on the existence of impartial courts, free from any real or perceived bias on the bench. President Obama and the Senate must ensure that our judiciary is diverse, independent, and honorable. I also call on the judiciary to consider whether participation in imbalanced judicial education seminars funded by the right taints the perception of impartiality of their decisions.