It's a sad day when I find myself agreeing with John Fund that Sen. Russ Feingold is doing something stupid. Unlike Fund, I commend the good intention behind Feingold's proposed amendment to the pay raise bill (S. 1638), which amendment is part of Feingold's long-running campaign to reduce the influence of money in government. Having restricted the benefits that go toward Congress, he's now trying to extend that to the judiciary. According to Gail Heriot's post, which unlike Fund's article appears to quote the actual amendment*, it "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."
Based on Heriot's version of the amendment, Fund's description seems a little dishonest. He says the amendment "would flatly ban federal judges from attending anything other than a government-sponsored program." Surely forbidding someone to pay a judge's way is rather different from forbidding a judge to attend. Indeed, the amendment Fund claims exists would itself pose a constitutional problem. I find it unlikely that there isn't a First Amendment freedom of association issue, as well as a separation of powers issue, involved when Congress forbids judges from going where they want and listening to whom they want. Nonetheless, the practical effect is as Fund describes:
But such a limit would also discriminate against less well-known but respected judges who are asked most frequently to participate in academic conferences and moot courts at private law schools. Harvard Law will always attract top-flight judges, but Pepperdine or Boston University might have a hard time persuading them to come on their own dime. The overall limit of $5,000 would be quickly reached for the best-regarded judges, who are just the kind that moot court organizers want to attract. The travel limits would also be especially hard on judges who live away from major airline hubs, not to mention those from Alaska and Hawaii.However, as Josh Wright points out, there probably won't be a significant overall decrease in the amount of judicial education available; public schools will simply take over more from the private programs.
*Caution: Heriot doesn't have a link to the amendment itself, and I couldn't find the language she quoted anywhere on the internet except her own blog, so don't assume that she's got it precisely right. Heriot also injects some irrelevant religion-baiting into her post by titling it, "Where are All the Supreme Court Justices Going? Not to Catholic Schools ...." Amazingly, there are private law schools other than Catholic ones. If we're going to drag religion into the question, I should point out that with Catholics making up a 5-4 majority on the Court, a Catholic law school probably has a fair chance of attracting someone to visit on his own dime. And of course the most well known Catholic law school in the nation is a 20 minute walk from the Supreme Court building.