LAHAINA, Hawaii – Supreme Court Justice Anthony Kennedy pushed back against pressure from two senior Republican senators who had called for cancellation of this week’s annual U.S. 9th Circuit Judicial Conference in Maui, which is costing taxpayers about $1 million.
In the opening ceremony, Kennedy spent most of his 30-minute speech defending the value of the conference, as well as its location in Hawaii.
“The judges and the members of the profession who are with us at this conference are committed to the idea of absolute probity,” Kennedy said. “Absolute probity in the way we behave, absolute probity in the way we discharge our duties, and absolute probity as we seek to come closer to the real idea of freedom. And that is the purpose of this conference and that is the history of this conference over many years and I’m immensely proud to be with you.”
Sens. Jeff Sessions, R-Ala., and Charles Grassley, R-Iowa, called for cancellation of the conference because of the country’s budget problems and the expense of the event at the Hyatt Regency Hawaii. They also have criticized activities – which cost extra for attendees – including yoga, surfing and stand-up paddleboard lessons.
Kennedy, who chaired the 9th Circuit’s Committee on Pacific Territories for eight years, defended the locale. “It is important that this conference meet frequently in Hawaii. There is a loveliness, even a loneliness, in the Pacific that makes it fitting for us to search in quiet for the elegance and the beauty of the law.
“The Hawaiian Islands – a state on equal footing of and of equal dignity with the 13 original states and all the other states – is a bastion of freedom in the Pacific. And together with our friends from the Federated States of Micronesia, the Marshal Islands, Palau, the Northern Marianas Islands and from Guam – they, in a war that is still within the living memory of many of us, suffered anguish and disaster and hurt and death in defending freedom.”
Kennedy spoke after the Pledge of Allegiance was led by Eichi Oki, a World War II veteran of the 442nd Regimental Combat Team and father of U.S. District Judge Susan Oki Mollway of Hawaii. The 442nd received the Congressional Gold Medal in 2011 for service in the face of racial discrimination.
Kennedy, a former chairman of the annual conference, spoke of the first 9th Circuit meeting he attended in 1975. He said that meeting helped spur a shift in the profession that made judges actively involved in managing cases. Kennedy said as a lawyer in private practice he’d resisted that change, but became convinced at the conference that judicial intervention was a necessary efficiency.
“It’s not the attorney’s case, it’s not the client’s case,” Kennedy said. “It’s the court’s case, it’s the law’s case, it’s the public’s case.”
Kennedy also drew a parallel with continuing education that happens across professions and trades in the American economy and said attending the meeting is helpful to appellate judges who’ve been away from trial practice. “The further you are removed from the trial process, the more of a public danger you are,” he said. “This conference is immensely valuable for those of us who are no longer actively engaged in practice and I very much appreciate and value the opportunity of being here.”
Ninth Circuit Chief Judge Alex Kozinski rejected calls to cancel the event, but has said no meeting will be held in 2013 to save money. Kozinski, in short remarks before Kennedy spoke, said the circuit was under attack and that the profession shouldn’t be shy about speaking about the benefits of such meetings.
Kozinski was appointed by President Ronald Reagan in 1985. Kennedy was appointed to the 9th Circuit by President Gerald Ford in 1975 and to the Supreme Court by President Reagan in 1988.
Kennedy urged organizers to use the 24 months before the next conference to “prepare diligently” and suggested three possible topics. He said caseloads have become a problem for federal judges, citing a three-fold increase for 9th Circuit judges since he left for the Supreme Court.
He also said the American model of three-year graduate law schools should be examined in light of the fact that most of the world doesn’t use the same system, citing Canada, Japan and South Africa as the others with three-year programs.
Finally, he raised a topic that he said required “considerable delicacy” but said it must be discussed: the partisan politics of Senate confirmation of life-termed federal judges. Kennedy said the Senate has a proper role to carefully consider nominees, but that the system is now broken.
“There’s a difference in a political function and a partisan function,” Kennedy said. “The current climate is one in which highly qualified, eminent practitioners of the law simply do not want to subject themselves to this process. And I think it’s incumbent on members of this conference, particularly members of the bar, to face the fact that they have the responsibility to ensure that this appointment and selection and confirmation process is done without the partisan intensity that now accompanies it. This is bad for the legal system. It makes the judiciary look politicized when it is not, and it has to stop.”