Buying the Bench: Exxon, Dow and Koch Sponsor Judicial Junkets
by Charlie Cray
April 3, 2013
A new investigation by the Center for Public Integrity reveals that Exxon, Dow, the Kochs and other corporations have spent millions to sponsor judicial junkets weekend seminars where sitting judges are "educated" in conservative legal theory and corporate-friendly topics such as Corporations and the Limits of Criminal Law. As if that were not enough, CPI adds that some of judges attending the seminars later presided over cases filed the same companies. The judicial junkets, which were organized by conservative law schools like George Mason University, are another secretive piece of a long-term strategy that was first outlined by former tobacco industry attorney Justice Lewis Powell in a memo he wrote for the U.S. Chamber of Commerce shortly before being appointed to the Supreme Court (where he wrote some of the Court's decisions in key cases that began a decades long expansion of corporate rights). Powell's most forceful advice to the corporate supremacists was to take over the courts, which he described as "the most important instrument for social, economic and political change." The kind of change that the Chamber and its allies in the conservative legal movement have achieved since Powell's day would have probably surpassed his wildest wishes. Over the past four decades, corporate-friendly legal theory -- much of it fostered by the law and economics movement -- has moved from being a marginal insurgency with barely a toehold at the most prestigious of law schools -- to achieving near hegemonic status. And sustained campaigns to eviscerate the courts' inclination to use the law to hold corporations accountable -- such as the Chamber's own decades-long tort reform campaign -- have left injured consumers with little chance of obtaining some kind of restitution. (If you want to see a perfect example of how the "tort reform" strategy has worked, check out the movie, Hot Coffee.) The judicial junkets themselves were the invention of conservative legal activists like Henry Manne, a libertarian ideologue and administrative entrepreneur who created the Law and Economics Center at George Mason University Law School in the 1980s. Manne turned the entire law school into a bastion of resistance to regulations and other restraints on corporate power, according to Steven Teles, author of The Rise of the Conservative Legal Movement. Because he was motivated more by ideology than money, Manne claimed the junkets were designed to have a diffuse and inchoate effect, instead of being designed to change judges minds on any particular cases. And that may have been the case. But these days, its hard to imagine the Koch Brothers, Exxon, Dow and the Chamber pouring millions of dollars into anything that doesnt result in some kind of payoff. (The Kochs have given more money to GMU than any other single institution since 1985. GMU sponsors libertarian institutions such as the Koch-funded Mercatus Center, a think tank that regularly attacks environmental regulations.) As CPI reports, there are clear examples of judges attending judicial seminars sponsored by companies that later appeared before them in court. U.S. District Judge Carl J. Barbier, for example, the Eastern District of Louisiana jurist [who was later put] in charge of considering whether BP owes billions of dollars in fines for gross negligence leading to the 2010 Deepwater Horizon oil platform explosion and spill -- attended a 2009 seminar called Criminalization of Corporate Conduct. The seminar was sponsored by the American Petroleum Institute and the Chamber of Commerce, among others. In 2011, Barbier also dismissed a wrongful-death claim in a suit brought against ExxonMobil and Chevron USA by the widow of a worker who was exposed to radioactive materials found on the companies equipment. Barbiers ruling came two years after he attended the corporate conduct seminar, [which was] funded in part by ExxonMobil and the American Petroleum Institute, according to documents. Doesn't this cozy influence-penalty violate some kind of judicial ethics rule? You'd think so. In fact, members of Congress have previously tried to introduce legislation that would prohibit judges from accepting anything of value in connection with a seminar, but the bills died in committee because of corporate lobbying pressure. Northwestern University (the school that sponsored the second largest number of junkets behind George Mason) actually shut down its program in 2010, when Henry Butler, the programs chief sponsor and an ideological scion of Manne, left for GMU. Butler a former Koch Distringuished Professor of Law and Economics at Univ. of Kansas actually wrote an article describing how Manne responded to withering criticism of the seminars by pledging to the Judicial Conference that GMU would stop using corporate contributions to pay the direct expenses of the judicial education programs, and that expenses for the judges programs would be paid for with contributions from private foundations not affiliated with corporations. It looks like Butler and Manne simply learned how to manage the sophisticated corporate funding shell game by using pass-through groups like Donors Trust (the same shadowy billionaire's ATM that has laundered at least $146 million of climate-denial funding). We commend CPI for pulling all this Powell-ful judiciary influence-peddling out into the light. Doing so is critical to a Democracy that is vigorous enough to resist an infestation of shadowy influence-peddling. And just putting it out there in the light of day subjects it to what Justice Brandeis so famously described as "the best of disinfectants." But that's not enough. After Citizens United, weve clearly passed the point where We the People can afford to sit back and accept that our courtsare some kind of sacred bastion of dispassionate logic -- especially when they are corrupted by so much corporate bias. We should demand Congress reintroduce a law that would prohibit judges from going on these judicial junkets, while engaging more deeply in a long-term strategies to bring the courts back over to our side. Two good places to start engaging are Justice at Stake and the Alliance for Justice two groups leading the fight for judicial accountability and reform.