Saturday, December 15, 2007

Where are All the Supreme Court Justices Going? Not to Catholic Schools ....
Gail Heriot

Are you a law student or alumnus at a private law school? Do you enjoy it when your school brings in a Supreme Court Justice or other federal judge to give a talk, teach a class, judge a moot court competition or deliver the commencement address? Well, forget about it.

In a few days, the U.S. Senate is expected to vote on an amendment to S. 1638, which, if adopted, will forbid federal judges and justices from accepting more than $1500 "in connection with a single trip or event, travel, food, lodging, reimbursement, outside earned income, or anything that would be considered a gift" from a source other than a federal, state or local government or a bar or judicial association. (Sorry, I don't have a link to the amendment itself.) If I’m reading it correctly, that means little Catholic schools in places like San Diego are going to have a tough time. Flying a Supreme Court Justice out to San Diego, getting him or her to the hotel in a taxi, and paying for lodging and food for two or three days is itself $1500. Unless you expect the Justice to pay for part of the trip out of his or her own pocket, I think that means no visit.

In addition, no federal judge or justice may accept more than $5000 during the course of a year for such purposes. So even if USD could keep the bill down to $1500, it’s likely out of luck. A justice could only accept about three such engagements per year. The demand for Supreme Court Justice visits to private schools is quite a bit higher than that. Every private law school in the country will be battling to get on the Supreme Court Justices’ very limited dance cards. The Harvards of the world will be able to offer the glamour of being at Harvard. And of course, the public schools will have the ability to shell out more luxurious accommodations to entice the good justices. What do the Boston Colleges, the Notre Dames, the San Diegos, the Emorys, the Tulanes, the Miamis and the Cal Westerns have to offer? There was a time that San Diego could offer an ocean view hotel room and maybe a little deep sea fishing. Evidently, no more.

Another part of the proposed amendment, which is sponsored by Feingold and Kyl, prohibits federal judges and justices from "accept[ing] travel, food, lodging, reimbursement, outside earned income, or anything that would be considered a gift ... in connection with attending, as a speaker or participant, a program, a significant purpose of which is the education of United States Federal or state judges ...." Again, there is an exception for federal, state or local government and for bar or judicial associations.

If the purpose of this is to put a stop to supposedly ideologically-driven judicial education programs, it probably won’t work. The Williams Institute at UCLA, for example, provides judicial training to state and federal judges on issues of sexual orientation law and public policy. It has a reputation for being left of center. But UCLA is a state school, so it should not be covered by the ban. Similarly, at George Mason, the Law and Economics Center provides judicial training and has a reputation for being right of center. Neither should be affected by the law (except insofar as it limits the competition they might be getting from private schools).

Will the proposed amendment at least get rid of "interest group" judicial education? Well ... I'm not sure ... maybe not. There are already limitations on that and it’s not clear whether this proposal creates substantial new ones. The exception for bar associations includes "subject-matter bar associations." What’s that? Well, I suppose that it certainly would include something like an "Immigration Bar Association" or a "Patent Bar Association." But what’s to prevent, for example, the automobile industry from starting (and funding) an "Automobile Law Bar Association"? Or a "Labor Law Bar Association" funded by labor union money? To be sure, there are already limits on a judge’s ability to accept anything of value from a person he or she knows to have business (or likely future business) before the court, but I’m not sure what kind of limitations exist in the absence of such knowledge.  And this proposal doesn't provide any.

The only clear losers are private law schools, their students and alumni. (Even the justices and judges themselves aren’t losers, since they’ll get a pay raise out of this.  The proposed amendment is to a bill that would raise the pay of Associate Justices to $304,500 and the Chief to $318,200). Private schools can’t have judicial training programs; public schools can. Private schools will have a tough time hosting federal judges and justices; public schools won’t.

Maybe that’s no big deal. I find celebrity-driven law school events pretty tedious at times. On the other hand, I’ve come to think these visits really are important. They remind law students that the profession that they are about to enter really is very small–small enough that Supreme Court Justices feel morally obligated to come out and visit a significant number of law schools and reach out to future lawyers each year. Some students come away with exactly the right message: These guys could have spent their weekend anywhere in the world and (for better or worse) would have been treated like aristocracy. They chose to come here because they thought they had something useful to say to future lawyers like me. They think that maybe, just maybe, I’ll be a player someday. Maybe they’re right.

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Gail Heriot


That 1500 dollar limit clearly discriminates against places far from DC. Don't you have a Constitution to protect you from that sort of thing? (P.S. Is this a good moment to mention my advice to the good citizens of the US that they insist that the Supreme Court sit somewhere other than DC. Remoteness from the Executive and Legislature and closeness to the People - that's what a Supreme Court should be aiming for. So tell it so, folks.)

Posted by: dearieme | Dec 16, 2007 4:21:26 AM