By Sam Ozer-Staton
Last week, a bombshell Wall Street Journal investigative report revealed that more than 130 federal judges have violated U.S. law and judicial ethics by overseeing court cases involving companies in which they or their family owned stock. The Journal found that since 2010, judges have collectively failed to recuse themselves from 685 court cases. Judges’ stockholdings exceeded $15,000 in 173 cases and $50,000 in 21 of those cases.
The report comes at a time when the judiciary is going through a crisis of public confidence. Increasingly, federal judges — from the Supreme Court to the District Court level — are seen not as objective arbiters of the law but as agents of a particular political agenda. In 2018, when Judge Jon S. Tigar of the District Court for Northern California issued an injunction blocking President Trump’s asylum policy, Trump attacked the judge, calling him a biased “Obama judge.” That prompted Supreme Court Chief Justice John Roberts to release an unusual statement defending the independence of the federal judiciary. “We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
The Journal’s report delivers another blow to the integrity of the judiciary. But while much has been made of the recent increase in partisan behavior among federal judges, much less focus has been given to the kind of quintessential financial corruption (or at least the appearance of it) that the report exposes. And it begs the question: What consequences should judges face if they hear cases involving companies in which they own stock?
The federal judiciary hasn’t always had clear-cut ethics rules. The law that requires judges to recuse themselves in instances of potential financial conflict of interest, like many rules that dictate government ethics, comes out of the post-Watergate era. In 1974, four months after President Nixon’s resignation, President Ford signed a law requiring judges to disqualify themselves from any court proceeding in which: “He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.”
A few years later, as part of the Ethics in Government Act of 1978, Congress required that judges file financial disclosure statements, providing a way for government watchdogs to actually make sure that judges were following the law.
Still, the 1974 law, which provides no penalties for violations, has often been ignored. Federal judges have lifetime appointments and can be removed from the bench only through impeachment. Creating additional structures of punishment for judges, some argue, could further erode the independence of the judiciary.
“I know of no public discipline of a judge for failure to recuse,” Stephen Gillers, a legal ethics expert at New York University School of Law, told the Wall Street Journal. “But there is rarely public discipline of federal judges for anything.”
Are you surprised by the Journal’s findings? Should there be more explicit discipline for federal judges who violate ethics rules?
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