Earlier this month, Republican leaders of the House Judiciary Committee sent a letter to the heads of the federal court system’s policymaking and administrative bodies, sounding the alarm about an environmental nonprofit organization’s “improper” attempts to “influence federal judges.” The target of the complaint is the Environmental Law Institute, a nonpartisan research and education center that, among many other things, hosts webinars providing judges with information about “climate science and how it arises in the law.”
Judges regularly must decide cases about subjects in which they are not experts, so the government encourages judges to participate in continuing education programs, such as those sponsored by the Environmental Law Institute. ELI says the aim of its Climate Judiciary Project is ensuring judges can “understand the scientific and technical evidence before them” so they can “make independent, objective, and fair decisions.” As the Supreme Court has shown, rulings on environmental law issues get deeply unserious when justices don’t know their waters from their wetlands.
But conservative media and oil lobbyists have criticized ELI’s efforts as judicial manipulation for years. (A scare quote-laden Wall Street Journal editorial in 2024 accused ELI of trying to co-opt the judiciary to “support or even impose climate policies that climate alarmists can’t enact through the political branches.”) And in more recent months, state and federal Republican officials have joined in on the attacks. In their January 14 letter sent to the Judicial Conference of the United States and the Administrative Office of the U.S. Courts, Ohio Representative Jim Jordan and California Representative Darrell Issa argue that the “underlying goal” of ELI’s Climate Judiciary Project sessions is “predisposing federal judges in favor of plaintiffs” in climate-related cases.
That people whose interests are shaped by judges try to shape judges’ background knowledge and perspectives is not exactly a state secret. From 1976 to 1999, for instance, a corporate-backed “law and economics center” (now housed at George Mason University’s Antonin Scalia Law School) held a weeks-long, all-expenses-paid seminar for judges at a beachside hotel in Florida. By 1990, roughly 40 percent of sitting federal judges had completed its flagship program, the Economics Institute for Federal Judges. After attending, research shows that those judges ruled against regulatory agencies more often, and imposed harsher criminal sentences. (The economist-brained theory here is that criminal law should deter crime by making the cost of breaking a law much higher than the expected benefit of committing a crime.)
Since 2007, the Judicial Conference, which helps set policies for the administration of federal courts, has tried to balance judges’ need for continuing education with public concern about inappropriate influence by requiring judges to disclose their attendance at privately funded seminars to the Administrative Office. Judicial educational event sponsors must also tell the Administrative Office who is speaking about what topic, and who is funding the program.
The disclosure system has two caveats, though, which Jordan and Issa contend ELI is “leveraging” in order to “avoid disclosure and oversight.” First, the notification requirement only kicks in when the program provider pays or reimburses more than $480 for a judge’s participation. And second, some organizations, such as the National Judicial College and state bar associations, are exempt from the reporting requirement.
Since only one ELI seminar appears in the Administrative Office’s report on privately funded seminars over the past three years, Jordan and Issa argue that there must be something wrong with the rules. Their letter asks the Administrative Office for copies of all disclosures made pursuant to the current policy since 2018, and to “update” the policy to “prevent abuse by advocacy organizations masquerading as fair and impartial educational programs.”
It bears repeating here that private entities have been using educational events to feed judges a steady diet of programming that promotes Republican interests for years. Between July 2008 and 2012, conservative foundations and multinational corporations like ExxonMobil and Pfizer sponsored over 100 judicial education seminars with names like “The Moral Foundations of Capitalism” and “Corporations and the Limits of Criminal Law.” In 2021 and 2022, George Mason University and the Federalist Society sent over 100 federal judges on 251 trips, with plenty of built-in time for golfing and going to the spa when getting reeducated about the latest conservative legal theories on price-gouging, antitrust, and corporate liability. ELI appears to be doing the same thing as everybody else who puts on a judicial education seminar—sharing information with judges—but typically with slideshows and Zoom links instead of ski slopes and luxurious resorts at no charge to the judges.
Despite the narrative that proliferates in law schools and Federalist Society keynote addresses, judges are political actors who wield political power. It is similarly obvious that people want to influence those with political power. Jordan and Issa’s letter talks about ELI as a threat to “judicial impartiality,” but none of these corporate attempts to influence the judiciary piqued their concern. This is because Jordan and Issa’s concern is not actually that judges may be influenced. Their concern is that Republicans may no longer be the only ones doing the influencing.
