Judging judges’ ethics

A journalist I know questioned a two-bit Maryland legislator who voted
for a law affecting property he had a financial interest in. “How about
your conflict of interest?” he asked. “I got no conflict with that!” the
lawmaker responded.

Alas, the American public has come to expect that kind of ethical blind
spot in its legislators. But when the chief justice of the U.S. Supreme
Court tells Congress he doesn’t get why folks question why the standard
recusal laws that apply to all federal judges don’t apply to Supreme
Court justices, I say bring in the stand-up comics.

In the chief justice’s annual report on the State of the Judiciary, John
Roberts reported he had “complete confidence in the capability of my
colleagues to determine when recusal is warranted.” They are, he
reminded, “jurists of exceptional integrity.” One of these jurists,
Justice Clarence Thomas, failed to recuse himself from cases before the
Supreme Court even though his wife worked for organizations interested
in the matters at hand. When it was pointed out to him, Thomas changed
his answer to his financial disclosure forms and disclosed that fact
retroactively. He blamed the inadvertent error on his not understanding
the nature of questions on that form, though he’d filled it out for
years in the past.

Chief Justice Roberts argued that the situation regarding Supreme Court justices’ recusal practices is unique. Here’s where the brilliant federal jurist reminds me of the dumb Maryland legislator. Since there is no independent body to review a Supreme Court justice’s actions, Roberts noted, recusal there is “problematic.” Indeed, no agency of government should be free to police itself, logic teaches. There is a precedent to govern situations like the one two justices will face when the constitutionality of the 2010 national healthcare law comes before the court late this year. And in other comparable situations, the U.S. Judicial Conference has power to decide these questions, and in doing so would add legitimacy to any justice’s determination that he or she has no conflict of interest.

Surely there are ways to cure this fault without hampering the constitutional and quite sensible need for judicial independence, while assuring judicial integrity, and the appearance of it. One example might be to add a review authority to a changing and undisclosed panel of the Judicial Conference that already has statutory power to oversee financial disclosure regulations and gift-taking of federal judges. That would keep judicial power in the judiciary, as opposed to giving such a power to officials of the executive or legislative branch. Complaints about misconduct concerning conflicts of interest could be raised discreetly, and resolved by dispassionate but empathetic jurists. Anything reasonable would be better than giving the final decision over his or her rectitude to the party involved.

We have the law. Why not use it?

More on this subject tomorrow.

 Ronald Goldfarb is a Washington- and Miami-based attorney, author and literary agent.