The Constitutional Accountability Center today called on three federal appeals judges to resign from the board of directors of the Foundation for Research on Economics and the Environment (FREE), a Montana-based think tank that sponsors seminars on environmental regulation and other topics for federal and state judges.

Judges Alice Batchelder and Danny Boggs of the U.S. Court of Appeals for the 6th Circuit, and Edith Clement of the 5th Circuit were the targets of the group’s request. The Constitutional Accountability Center (CAC) advocates a liberal interpretation of the text and history of the Constitution. Its predecessor organization, the Community Rights Counsel, was a persistent critic of FREE and of judges who participated in its seminars or served on its board. FREE received funding from companies that litigate against environmental regulation, the community rights group contended, and its seminars offered a one-sided view of the economic impact of environmental laws.  Following its complaints in 2004, three judges — district judge Andre Davis, and appeals judges Jane Roth and Douglas Ginsburg — resigned from FREE’s board, though Boggs remained. Batchelder and Clement have joined the board since then. The Judicial Conference has also since established rules requiring judges to disclose publicly their attendance at seminars sponsored by organizations like FREE.

Doug Kendall, president of CAC as well of the previous organization, said today that the continued presence of prominent federal judges on FREE’s board is a “black mark” on the integrity of the federal judiciary because it “stamps the imprimatur of the judiciary” on the organization’s political views.

The CAC’s interest in the issue revived this week with the release by the Government Printing Office of the official record of the 2009 Senate Judiciary Committee confirmation hearing for Judge Davis, nominated to a 4th Circuit judgeship. The record contained a previously private 2005 letter to Davis from the Committee on Codes of Conduct of the Judicial Conference. In the wake of Kendall’s 2004 complaint about FREE, Davis had asked the committee for advice on whether he should continue to serve on FREE’s board.

The committee letter stated flatly that Davis’ service on FREE violated the canon of judicial ethics that bars participation in organizations that would “reflect adversely” on a judge’s impartiality. “There is no practical way for you to disassociate yourself from the policies advanced by FREE, and your affiliation would reasonably be seen as personal advocacy of FREE’s policy positions,” the committee told Davis, noting that many of FREE’s policies related to environmental issues that could be litigated before him. The letter also said Davis’s role on the board of FREE violated the canon that bars judges from lending the prestige of their office to “advance the private interests of others.”

Kendall said he assumed the three federal judges currently on FREE’s board are unaware of the 2005 letter to Davis, or else they would have quit the board, as Davis did. Kendall said the episode is a test of the “self-policing” of the federal judiciary when ethical issues are raised.

Even though Kendall’s new organization focuses on constitutional issues rather than judicial ethics, Kendall said he did not hesitate to revisit the issue when he learned of the release of the 2005 letter urging Davis to quit FREE’s board. “Any organization that cares about the judiciary should be willing to do what we are going today,” Kendall said.

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