TCS Daily


Judge Not

By Thomas C. Schelling - May 11, 2005 12:00 AM

While planning last week for my next seminar for federal judges, to be held in July by the Foundation for Research on Economics and the Environment, I was disheartened to read that several distinguished judges had felt obliged to distance themselves from the Foundation by resigning from its Board of Trustees. This will be my ninth seminar, over a period of five years and covering seven major topics, so I am confident that I know what happens at these seminars.

The allegations that apparently led to these judges feeling obligated to remove themselves have come from the Community Rights Counsel, whose executive director, Douglas T. Kendall, wrote to the chairman of the Committee on Codes of Conduct a letter that includes the following statement:

        "FREE receives its funding from both corporations that litigate in federal 
        court and foundations that bankroll other groups to litigate. FREE then uses 
        that money to host five or six day trips to Montana resorts where 
        judges are wined, dined, and instructed on how and why to strike down 
        federal environmental laws
." (My emphasis.)

I have participated in 168 hours of lectures and discussion at FREE and have never witnessed anything that an observer could interpret as remotely corresponding to that characterization. (John Baden, the Chairman of FREE, runs a tight ship; all sessions begin promptly on time, and end on time, so my 168 hours is a pretty exact estimate.)

Whether judges should accept travel, room, and board to attend twenty-one hours of serious discussion over four days is for the Committee on Codes of Conduct to decide. But I can offer a judgment on the two issues that the Community Rights Counsel publicizes with headlines like "Golf Anyone? The Movable Feast Called 'Judicial Education.'"

First, and least, is this a junket, a holiday of horseback, golf, and fly fishing? There are twelve ninety-minute sessions, with half-hour breaks, in four days; no absences are allowed; nobody may be late. Thursday afternoon is free time, as is Saturday until five, when the judges must meet again in private session with the Chairman. Considering what for most judges is two full days of travel, that is two afternoons free out of six days. Additionally there is more than enough advance required reading to consume the travel to Bozeman.

As an academic who has attended dozens of seminars sponsored by the Gas Research Institute, the Electric Power Research Institute, the Aspen Institute, the American Academy of Arts and Sciences, and the National Academy of Sciences, I find the FREE regime pretty Spartan.

The serious issue is whether the selection of speakers is systematically biased against "federal environmental laws," as charged, or, for that matter, intentionally biased in any direction.

The first seminar I was invited to was on global warming and climate change. I had no idea what FREE was or who John Baden was, but the invitation mentioned some of those who had already agreed to attend, and one of them was a scientist I had gotten to know well, and to trust, when we both served on the 1981-83 Carbon Dioxide Assessment Committee of the National Academy of Sciences. I took his selection as a good sign, joined the seminar, signed on for more, and have never been disappointed.

I am an environmentalist. My 1991 presidential address to the American Economic Association was on global warming, which I had then taken seriously for more than a decade. I have not perceived an ideological bias in the selection of speakers for these seminars. On climate change I have disagreed with most -- not all, but most -- of the other speakers. But our disagreements have always been professional, not ideological. It is a very new issue for a global community, and how to cope with it economically, politically, and diplomatically is far from obvious.

I have found the judges at these seminars -- I've now gotten to know over a hundred of them -- remarkably articulate, good-humored, hard-working and hard-thinking, and fair minded. At the end of each seminar my wife and I look at the judges' biographies to see whether we can predict who was appointed by a Democratic or a Republican president. We never can!

Thomas C Schelling is Distinguished University Professor, Emeritus, University of Maryland. He is a member of the National Academy of Sciences and a Distinguished Fellow of the American Economic Association, of which he was president in 1991.

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