TCS Daily


Judge Not

By John Baden - October 12, 2006 12:00 AM

The educational programs of the Foundation for Research on Economics and the Environment (FREE) have received substantial national attention, including from the New York Times, Washington Post, Wall Street Journal, and 20/20. The Judicial Conference of the United States carefully evaluated the contributions of our work, for it knows American justice and progress rely on a well-informed, independent judiciary.

Respecting this principle, for 16 years hundreds of federal judges have joined our conferences on economics and the law. Clearly, a broadly educated, intellectually sophisticated federal judiciary benefits America. But the a group that calls itself the Community Rights Counsel claims that, because of our programs, "Federal judges are expanding Constitutional provisions beyond their text and original meaning, ignoring or skirting Supreme Court precedent and, in some instances, overruling laws passed by Congress." WOW!

I've seen such attacks before. Some 30 years ago at Montana State University my colleagues and I successfully applied economic understanding to contentious, emotional, and scientifically complex natural resource issues. Our analysis explained how government agencies are captured by special interests. Our work identified and condemned these relationships and suggested constructive, pro-environment reforms.

This work was initially dismissed, discounted, and disparaged, especially by politicians and those beholden to them. But economics became a valuable tool within responsible environmental organizations. For example, everyone now recognizes that SO2 trading has effectively and efficiently reduced emissions, while ITQs, a kind of private property rights, have saved both fish and fishers. Greens now understand that government control of resources invites economic and ecological pathologies, for we can't insulate managers from political pressures. Wide acceptance of economics as a positive environmental tool led to our conferences for federal judges.

At an academic meeting in 1991, a few federal judges, formerly professors of law, suggested that I offer economic analysis to their colleagues. We initiated these conferences the following year and have held them ever since, nearly 50 in total. Responding to judges' requests, we have expanded our offerings beyond environmental issues to include drug policy, terrorism, and civil liberties.

FREE's conferences attract America's leading scholars from its best universities. They come because professors enjoy working with intelligent and intellectually curious decision makers. Federal judges exemplify these qualities.

In 1998 the CRC, a group with a strong statist bias (they wrote an amicus brief supporting takings of private property in the Supreme Court's Kelo case), began their attacks on judges' conferences. They asserted we ran "junkets for judges." They falsely alleged judges were brainwashed while wallowing in luxury (at the Gallatin Gateway Inn?!). They asserted we teach judges how and why to overturn environmental laws to benefit corporate interests. Lies all. Federal judges are not easily manipulated but certainly are incensed by CRC's attacks on their character and intelligence.

The CRC claims our speakers are corporate shills, when actually they are America's most respected policy analysts from Berkeley, Chicago, Harvard, MIT, UCLA, and Yale, as well as MSU. We also include speakers from several environmental groups. Attacking FREE is a successful fundraising device (a recent quarter million from George Soros alone). But CRC attacks are also orchestrated to intimidate judges who simply want to expand their intellectual horizons.

The CRC found allies in the media. Occasionally I'd receive a call from a reporter, a few minutes from deadline, requesting my response to the CRC. They never consulted our conference agendas, all posted on our web site, but rather accepted the CRC's claims on faith.

Truth is a stubborn thing indeed. Twice the Judicial Conference of the United States has approved of judges attending independent educational conferences, most recently on September 19. This ruling complements three peer reviews of our programs. A dozen Green law profs, five economists selected by Tom Schelling, and a team of Clinton-appointed U.S. attorneys all gave our program stellar marks. And judges consistently give our conferences accolades.

Suppressing ideas and intimidating judges is sorry behavior. The CRC's attempt to restrict judges' continuing education is censorship camouflaged by self-righteousness. As Justice O'Connor recently explained, our country's success depends upon an independent, intelligent judiciary. This was the real target of the CRC's attacks. They missed. Truth won. Vindication!

John A. Baden, Ph.D., is chairman of the Foundation for Research on Economics and the Environment (FREE) and Gallatin Writers, both based in Bozeman, Mont.
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