There is a growing tempest in the "liberal"-"left" blogosphere that Judge John Roberts violated unstated conflict of interest
rules by talking with the executive branch about his nomination to the US Supreme Court and yet not recusing himself from cases in which the US government (meaning executive branch) was a party.
According to this web site, Judge Roberts has been, and continues to be, a member
of the Washington, D.C. Bar. Thus, we may look to the DC Ethics Rules for initial guidance, though applicability of these rules to judges is not necessarily clear or consistent. In any event, I saw nothing definitively applicable to a government employee seeking another government position--particularly since the only way Roberts could be nominated from his current judge position to the US Supreme Court is through the executive branch. Most of the rules govern going from government to non-government
positions. Plus, the federal rules I initially read involve employees of the executive
branch (the White House), not the judiciary.
There is a set of ethics rules, however, entitled "Code of Conduct of U.S. Judges,"
which is direcly applicable to Judge Roberts, a U.S. Judge at the time he was ruling on cases involving the U.S. government (brought by or involving the executive branch as a party) and having discussions about ascension to the US Supreme Court.For those who don't want to read the minutiae: My conclusion is that Judge Roberts most likely did not violate any conflict rules unless someone can tell me that other judges recused themselves from government party cases where they were on the "short list" for a higher judicial position--or there is precedent from the interpretation of the Canons, which are advisory and not binding, by the way.ANALYSIS OF CANON LANGUAGE:
Here is the first relevant passage to consider:
"A. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
"Canon 2A. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges. A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions that might be viewed as burdensome by the ordinary citizen and should do so freely and willingly. The prohibition against behaving with impropriety or the appearance of impropriety applies to both the professional and personal conduct of a judge. Because it is not practicable to list all prohibited acts, the proscription is necessarily cast in general terms that extend to conduct by judges that is harmful although not specifically mentioned in the Code. Actual improprieties under this standard include violations of law, court rules or other specific provisions of this Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge's ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired."
Pretty general, and in such generalities, Judge Roberts is in what we lawyers call a "gray" zone, meaning that he is potentially facing an ethics breach by conducting personal negotiations with and seeking a favor from a party with an action before the court.
Second, here are relevant sections of Canon 3 of the US Code of Conduct of US Judges:
"(1) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to
instances in which:
"(a) the judge has a personal bias or prejudice concerning a party,
or personal knowledge of disputed evidentiary facts concerning the proceeding;
"(b) the judge served as lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness;
"(c) the judge knows that the judge
, individually or as a fiduciary, or the judge's spouse or minor child residing in the judge's 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 affected substantially by the outcome of the proceeding
"(d) the judge or the judge's spouse, or a person related to either within the third degree of relationship, or the spouse of such a person:
"(i) is a party to the proceeding, or an officer, director, or trustee of a party;
"(ii) is acting as a lawyer in the proceeding;
"(iii) is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; or
"(iv) is to the judge's knowledge likely to be a material witness in the proceeding.
"(e) the judge has served in governmental employment and in such capacity participated as counsel, advisor, or material witness concerning the proceeding or has expressed an opinion concerning the merits of the particular case in controversy." (Italics added--MJF)
Reading the italicized words, one may make a case that Judge Roberts violated these ethical rules. HOWEVER, I cannot support that conclusion based upon the words alone. First, I am unaware of any other judge in let's say, since the Canon was first prepared in 1973, who recused himself or herself from all legal actions before the court in which he/she was sitting involving the US government as a party while being considered
for a higher level judicial position. One may, therefore, find a public policy exception that an application of the Code of Conduct against Judge Roberts in this instance would have adverse effects upon the operation of the courts. Think of how many judges would be constantly recusing themselves from government party cases because the executive branch approached judges at the district court level to become appellate judges. This is especially true of the DC Circuit Court of Appeals where most of the cases involve the executive branch as a party to actions before that court.If, however, Judge Roberts was aware he was on the "short list" and was still agreeing to hear government party cases or ruling on government party cases, one may say he has ventured into a zone of a deeper gray.
The canons are silent on this, but there is the following exception in the disqualification section conerning matters of a conflict based upon a financial matter (the word "financial" is sufficiently defined to not be twisted into meaning something that constitutes a raise as US Supreme Court justices make more money than an appellate judge):
"(4) Notwithstanding the preceding provisions of this Canon, if a judge to whom a matter has been assigned would be disqualified, after substantial judicial time has been devoted to the matter, because of the appearance or discovery, after the matter was assigned to him or her
, that he or she individually or as a fiduciary, or his or her spouse or minor child residing in his or her household, has a financial interest in a party (other than an interest that could be substantially affected by the outcome), disqualification is not required if the judge, spouse or minor child, as the case may be, divests himself or herself of the interest that provides the grounds for the disqualification." (Italics added--MJF)
Here, one may argue Judge Roberts should not disqualify himself from cases which he has already "worked up", but should disqualify himself from new cases while on the short list. Or perhaps he should begin to exercise discretion in potentially controversial decisions such as the "terrorism" case (the Hamdan decision). Again, however, the Code of Conduct for US Judges is not a requirement to be followed, but merely a fairly strong "suggestion."
Finally, something tantalizing for those who want to be partisan, though again I have problems enforcing that statute here:
"18 United States Code § 211. Acceptance or solicitation to obtain appointive public office
"Release date: 2005-08-03
"Whoever solicits or receives, either as a political contribution, or for personal emolument, any money or thing of value
, in consideration of the promise of support or use of influence in obtaining for any person any appointive office or place under the United States, shall be fined under this title or imprisoned not more than one year, or both.
"Whoever solicits or receives any thing of value
in consideration of aiding a person to obtain employment under the United States either by referring his name to an executive department or agency of the United States or by requiring the payment of a fee because such person has secured such employment shall be fined under this title, or imprisoned not more than one year, or both. This section shall not apply to such services rendered by an employment agency pursuant to the written request of an executive department or agency of the United States." (Italics added--MJF)
This last quote came from Title 18, Chapter 11, of actual US laws (not "suggestions"), entitled "Bribery, Graft, and Conflicts of Interest"
regarding all federal employees. The question, however, is this: Is an appointment to the US Supreme Court a "thing of value"? Not likely as it is a position, not a "thing." I would read that phrase "thing of value" as something material in the corporeal sense.
Should Senators nonetheless be able to question Judge Roberts about this if there was a violation of these ethical rules? Yes. Again, however, I would advise not doing so until someone further researches the law and deteremines that (a) Judge Roberts' conduct should be a test case for reasons that are grounded in good government, not partisan opposition, and (b) there is some reason to believe, either in precedent (one has to order opinions as they are not available on the web) or evidence of intent to cover this instance, the canons or 18 U.S.C. 211 would apply to Judge Roberts' conduct.
In other words, I remain a skeptic about this particular subject until I find information that would lead me to apply such a conflict rule, under the same or substantially the same circumstances, against a judge I supported
for nomination or confirmation to the US Supreme Court. And for those who don't regularly read this blog, I strongly oppose Judge Roberts' nomination to the US Supreme Court to replace Justice O'Connor. If he was replacing Rehnquist, I would probably, if a Senator under these circumstances, consent to the appointment as it's essentially an even switch in that instance.
is an article by three partisan, anti-Roberts law professors from a week or so ago. They think Roberts violated conflict of interest rules and cite at least three court cases. However, only one of the cases has any relevance to the situation facing John Roberts. Even then, the facts in that single case involved a judge who was seeking a job with the US Attorney General's office local branch; the same local office which was trying a case in front of him at that very moment. Roberts is not trying to secure a management job at the A.G.'s office. Roberts has been seeking to stay a judge, is already an appellate justice at the DC Court of Appeal (the most prestigious appellate court in the nation) and is now simply going up to the last level: the US Supreme Court. Again, the three law professors don't show whether any other judge, such as Ginsburg or Breyer, recused themeselves from government prosecution cases during the Clinton administration's vetting process.
But, yuck! Moments after I blog this, I find that FoxNews agrees
with me and states that Breyer and Ginsburg did not recuse themselves from government cases they were handling at the appellate level while being wined and dined for a nomination (See also: Think Progress' point that the pro-Roberts defender recently worked for the Bush administration
). Oh well. I guess I'm gonna lose my anti-Bush street cred on this, aren't I?
(Edited, including the update, for clarity and correct some links)