A recent Wall Street Journal investigation found that over the last decade, 131 federal judges failed to recuse themselves in hundreds of cases that involved their own financial interests.
Chief Justice of the Supreme Court John Roberts, in his year-end review of the federal judiciary, said the report’s findings indicate a “serious problem of inadequate ethics training,” especially for those judges who had numerous violations. The conflicts of interest primarily include judges hearing cases involving their or their families’ stock holdings, which ultimately tainted some 685 court cases.
Given the rising concerns that the federal judiciary is becoming increasingly politicized, the newspaper’s findings are deeply troubling, says Martha Davis, university distinguished professor of law at Northeastern, adding that the violations only “compound the lack of trust that the federal judiciary seems to be breeding.”
“What’s at stake here is a lot,” Davis says. “We have a judiciary for various reasons already losing the trust of the American people, and the evidence that federal judges are hearing cases that they have a direct financial interest in only makes things worse.”
One of the primary mechanisms for alerting the courts about potential conflicts is through software that screens for them. The computerized system itself was implemented after a 2006 Washington Post investigation discovered a rash of ethics violations in the federal courts.
But the more recent Wall Street Journal investigation found that the software isn’t foolproof, requiring more awareness from judges.
“Judges are expected to know themselves, and not to rely on some kind of mechanism or computer system” to catch these conflicts, Davis says. “And they’re supposed to be aware of what their own assets are.”
The Journal reports that some of the judges who hadn’t recused themselves in the cases blamed “flawed internal procedures,” including an instance in which a federal court official in New York said the screening software missed a conflict because the system did not recognize the name of the company in question.
All federal judges are beholden to a judicial code of ethics, codified in a 1974 law, requiring that they be informed of their financial interests, and disqualify themselves if faced with a case in which they, their spouses, or minor children own a “legal or equitable interest, however small” in one the parties. Every state has a code of conduct that applies to judges also, Davis says, but the exact rules can differ state by state.
Attorneys involved in a case can act as a check, should they discover a conflict. But, even then, there aren’t ways of compelling judges to disqualify themselves.
“There is a check where, in theory, litigants who discover this sort of conflict can move to have the judge recused,” she says, “but the problem is recusal is often in the hands of a judge, and it’s difficult from a litigator’s perspective to decide when to raise the issue when a judge isn’t approaching it in a serious way.”
Davis says one potential solution is to require that judges put their assets in a blind trust—a common vehicle used by politicians and other public figures to avoid conflicts.
Congressional oversight of federal judges has always been relatively limited, which has meant that the federal judiciary is to a large extent charged with policing itself—a task for which they are not well equipped, says Jeremy Paul, professor of law and former dean of Northeastern’s School of Law.
“[Chief Justice John Roberts] is worried there will be pressure on the courts to turn over the policing mechanism to the other branches, which he doesn’t want because he wants to maintain independence for the judiciary,” Paul says.
“The much bigger problem,” he continues, “is the composition of the federal judiciary, which now tends to have a very strong pro-business background and orientation. The fact that you’re getting judges ruling on their business is also a product of who is being picked for those judgeships.”
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