March 6, 2019

Senators Welcome as ‘Breakthrough’ a Judicial Conference Warning to Judges, Clerks against Partisan Training Programs

On heels of Heritage Foundation clerk ‘training’ controversy, new guidance confirms Heritage program would put participating judges at serious risk of violating the Judicial Code of Conduct

Washington, DC – Senators Sheldon Whitehouse (D-RI), Dianne Feinstein (D-CA), Patrick Leahy (D-VT), Dick Durbin (D-IL), Richard Blumenthal (D-CT), and Mazie Hirono (D-HI) welcomed as a “breakthrough” an advisory opinion published by the Judicial Conference of the United States’ Committee on Codes of Conduct that warns federal judges and their clerks against participating in events sponsored by anonymously funded partisan organizations.  The guidance follows revelations that a Heritage Foundation training program, funded by “generous donors” seeking to make “financial investments” in attendees, required participants to sign agreements tantamount to loyalty pledges.

In October and November, the senators sent letters to the Administrative Office of the United States Courts raising alarm bells about the Heritage Foundation’s Federal Clerkship Training Academy.  Promotional materials touted the involvement of sitting federal judges, and said attendees must pledge to “[k]eep strictly confidential” all program materials and to not use the training “for any purpose contrary to the mission or interest of The Heritage Foundation.”  When the materials became public, they were quickly revised, but the training was still held last month.

While the opinion does not name the Heritage Foundation, it cautions judges and clerks with a long list of concerns about training programs like the one Heritage continues to sponsor.

Organizations that were once clearly engaged in efforts to educate judges and lawyers have become increasingly involved in contentious public policy debates,” the Committee on Codes of Conduct writes in its opinion, which is meant to guide federal judges and their clerks when considering potential conflicts of interest.  “Gone are the days when it was possible for a judge to identify the sponsoring organization and know that the judge was within a bright-line ‘safe zone’ for participation.”

The Committee also writes:

  • “Concerns are raised when the sponsor is regularly engaged in contentious public policy debates…. Additional concerns are raised where the seminar or conference specifically targets judges or judicial employees.” 
  • “[T]he presence of [private] sponsors cannot be ignored by judges who participate.  In fact, the presence of private sponsors likely increases the need for additional scrutiny.” 
  • “Where funding sources are unknown or likely to be from sources engaged in litigation or political advocacy, judges and judicial employees should not participate.” 
  • “When the seminar or conference targets a narrow audience of incoming or current judicial employees or judges, the judge or employee must take care to ascertain that the program is not such that it could be seen to curry influence with the employee or judge or to impact the outcome of future cases.”
  • “[B]oth the Judge’s Code and the Employees’ Code prohibit participation in programs that might cause a neutral observer to question whether this type of influence is being sought by the sponsoring organization.  Participation in a viewpoint-specific training program that will only benefit a specific constituency, as opposed to the legal system as a whole, cannot be characterized as a permissible activity to improve the law.” 

Read the full advisory opinion here


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