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May 15 is the date when federal judges — including Supreme Court justices — annually file their financial disclosure forms with the Administrative Office of the Courts. Soon thereafter, they are usually made public. But May 15 has come and gone, and the month will end without any of the forms seeing the light of day — much less being posted on the Internet. This may come as something of a surprise in light of what appeared to be a resolution of the dispute between the judiciary and the feisty Internet site APBnews.com, which was initially blocked from posting the 1998 forms of all federal judges on its online pages. With some surprisingly blunt persuasion from Chief Justice William Rehnquist, the Judicial Conference had dropped its opposition and agreed to a procedure that would make the forms digitally available. But a visit to APBnews.com will confirm that neither the 1998 forms nor the 1999 forms just submitted are posted. Instead, you’ll find a story indicating the two sides are still in court over the issue. “People think it’s over, but nothing is further from the truth,” says APBnews.com lawyer Mark Zaid, partner in the D.C. firm of Lobel, Novins & Lamont. “We don’t have a damned document.” Administrative office spokesman David Sellers, while not talking about the litigation, says, “They will be getting the reports they have requested.” Eventually, that is. But first, the forms are going through a redaction process that is authorized by law and spelled out in new regulations adopted by the Judicial Conference. The requested 1998 disclosure forms, as well as the freshly submitted 1999 forms, are being reviewed to edit out information that judges might have submitted but is not required, such as the names of spouses and dependents, home addresses or addresses of rental or business properties owned by the judges, and the judges’ signatures. Then, says Sellers, the forms are being returned to the judges with an invitation to seek the redaction of other information that they think might pose a specific security threat. The Judicial Conference’s committee on financial disclosure, in consultation with the U.S. Marshal’s Service, will decide whether and for how long the redaction should be granted. The procedure is cumbersome, says Zaid, and “raises some significant constitutional issues we could push in court.” But he is hopeful to avoid further litigation and seeks the cooperation of the judiciary. “No one wants to put judges in danger,” says Zaid. During an April 28 hearing in federal court in New York City, Judge Jed Rakoff indicated he would like both sides to resolve their differences, Zaid said: “He would like the case to go away.” But it won’t until the forms are released, Zaid adds. Meanwhile, on May 15, Rehnquist applauded the Judicial Conference’s “good faith effort to comply with a law that frankly poses some risks to judges.” Legitimate security concerns were behind the judiciary’s reluctance to go along with the Internet request, Rehnquist said in a speech to the American Law Institute. “Contrary to some press reports, the Financial Disclosure Committee’s actions were not without some foundation,” Rehnquist said. Trial judges, unlike senators and members of Congress who also must disclose their finances, are routinely exposed to “the criminal element in our society,” Rehnquist said. With the paper forms, Rehnquist said, officials could keep track of who was requesting the disclosure reports-judges are alerted whenever a request is made. But that control is lost when the forms are available to anyone on the Internet. Without being specific, Rehnquist said the upshot of the controversy may be that the Judicial Conference will seek amendments to the Ethics in Government Act “to reduce security risks to federal judges.” He noted that the law already exempts intelligence officials from making their reports public. “I don’t think the Judicial Conference has any desire to obtain a complete exemption for judges, but simply wishes to assure its membership that their legitimate concerns are adequately addressed in the act.” THOMAS PULLS BACK Justice Clarence Thomas will not be speaking publicly as much in the future as he has in the past few years, he told a Richmond, Va. audience recently. Calling it a “last hurrah for me,” according to an Associated Press account, Thomas told the annual dinner of the Richmond Bar Association that “every time we open our mouths, we come close to compromising what we do.” He told the audience of 300-plus people that he wanted to spend more time with his family and his work, and less time on the road. The announcement came as something of a surprise from a justice who has become increasingly at ease with public speaking, always engaging his audience with stories of his past or his personal philosophy of life. But Armstrong Williams, a close friend of Thomas’, said the justice’s decision to curtail public appearances was more than a year in the making. “He’s been clearing his calendar, only fulfilling the commitments he made to speak a couple of years ago, but not adding any new ones,” says Williams. “He’s tired, and the traveling takes its toll.” If the Richmond speech was a finale, Thomas got off a few zingers before he left the stage. During a question-and-answer period, Thomas said his colleagues ask too many questions. “The Court was a fairly quiet court when I arrived” in 1991, Thomas said. “Now we look like ‘The Family Feud.’ “ He also said that televising Court oral arguments would be a “bad idea,” adding, “People act strange when a camera is on them.” Thomas also told the audience that former President George Bush had asked him recently whether he would go through the confirmation process if he had it to do over again. “Yes, in a heartbeat,” was Thomas’ response. “I thank God that I have the opportunity to be there.” THOMAS ON FIRST Justice Thomas’ growing reputation as a strong First Amendment advocate was solidified last week in two separate cases. In the case of United States v. Playboy Entertainment Group, Thomas broke ranks with his usual conservative allies to form the 5-4 majority striking down the section of the Telecommunications Act that sought to force cable operators to block or scramble adult programming channels. Thomas did not totally embrace the Playboy Channel, however. He wrote separately to suggest that at least some of the programming on the Playboy and Spice channels, copies of which had been “lodged with the Court” could probably fit within the definition of obscenity — meaning it would have no First Amendment protection at all. But Thomas, like Justice Anthony Kennedy, accepted the stipulation made by both sides in the case that the programming was merely indecent, not obscene. As such, Thomas said, “I am not willing to corrupt the First Amendment” to relax the standards for scrutinizing government speech regulations. In a less-noticed action last week, Thomas was apparently the only justice interested in having the Court wade into one of the thorniest unanswered questions in First Amendment law: whether laws against bias in the workplace impinge on freedom of expression. Thomas wrote a vigorous dissent to a denial of certiorari in Avis Rent A Car System v. Aguilar, asserting that the Court should resolve the “troubling First Amendment issues” raised by the California case. By denying cert, the Court left standing a California Supreme Court ruling that allows lower courts to enforce an injunction against Avis forbidding one of its supervisors from using derogatory epithets directed at the company’s Latino employees in San Francisco. Oscar Aguilar and other Hispanic Avis workers obtained the injunction after also winning money damages against the company under state anti-discrimination laws. The supervisor, John Lawrence, had been found guilty of harassing Latino employees by creating a hostile work environment with the epithets. Lawrence and Avis appealed, but a divided California high court upheld both the award and the injunction, which ordered Lawrence to “cease and desist” all racial epithets while on the job. It told a lower court judge to draft a list of forbidden words. Thomas said he wanted to review the California ruling because “attaching liability to the utterance of words in the workplace is likely invalid for the simple reason that this speech is fully protected speech.” The content-based nature of the restriction on the supervisor’s speech, Thomas said, would probably make it unconstitutional under the Court’s 1992 R.A.V. v. St. Paul decision: “To uphold the application of a content-based antidiscrimination law … to pure speech in the workplace, then, we would have to substantially modify our First Amendment jurisprudence … We must remember that we deal here with a claim at the core of the First Amendment-that the state is suppressing speech that it dislikes.” Thomas’ stance fits in with not only his First Amendment thinking but also his views on civil rights laws that seem to him to be overly protective of minorities. SERVICE PINS Every year, the Court holds an awards ceremony for employees that serves as a reminder that the Supreme Court is a place where roughly 300 people work, nine of whom happen to put on black robes every so often. Even the justices get government service pins, but when they do, they are recognized alongside other long-serving Court employees. At the May 16 ceremony, both Chief Justice William Rehnquist and Justice John Paul Stevens were recognized for 35 years of government service, as was Stevens’ secretary Nellie Pitts, police officer George Callen, and Romeo Cruz, who is an aide to chambers for Justice Sandra Day O’Connor. Court Marshal Dale Bosley and three other employees-Clara Brooks, Harry Fenwick, and Connie Ferguson-hit the 30-year mark. Serving 25 years are Justice Stephen Breyer, Court barber Johnnie Shaw, and Sara Sonet, Sharron DuBose, and Carolyn Glenn. Three justices-Sandra Day O’Connor, Ruth Bader Ginsburg, and Clarence Thomas-marked 20 years of government service, as did Court employees Nadine Jackson, Al Bautista, Ernest Mickens, Sheryl Farmer, and James Peebles. Two dozen others were recognized for 15 or 10 years’ service. Special achievement awards were also handed out for performance of special assignments. Robert Chang, the computer expert who brought the Court’s systems into Y2K compliance, was recognized, as were employees on the payroll and housekeeping staffs, along with Assistant Curator Catherine Fitts, who has significantly improved the signage in the Court’s marble halls.

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