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At a conference on the worldwide rule of law on Nov. 10, Supreme Court Justice Sandra Day O’Connor was asked how judicial ethics rules can build public confidence in the judiciary. It is “critical” in emerging democracies, she replied, that codes of conduct be established and committees be formed to “call judges to account” for violations. Only then, she said, can the public “have a little bit of confidence in the impartiality and the fairness and the integrity of the judges who are serving.” No one in the audience at the American Bar Association event in Washington was impertinent enough to tell O’Connor that the Court she is about to retire from has almost none of those safeguards. The code of conduct that applies to lower federal court judges does not, by law, cover the justices. And the code leaves recusal decisions entirely up to the individual judge anyway, so no committee reviews the decisions judges make — either at the Supreme Court or in lower courts. Critics say that this unmonitored, do-it-yourself approach helps explain why recusal issues keep recurring. They have dogged Supreme Court nominee Samuel Alito Jr. — whose candidacy briefly seemed threatened by a recusal dispute — as well as Chief Justice John Roberts Jr., who has already faced some awkward recusal choices in his brief seven-week tenure on the Court. Recusal questions have been in the spotlight ever since Justice Antonin Scalia’s well-publicized refusal to bow out of a case in 2004 that involved his erstwhile duck-hunting partner, Vice President Dick Cheney. Conflict-of-interest questions may even impede the business community’s desire for a more sympathetic Supreme Court, forcing potential allies to recuse themselves. Already this term, several business cases have been hobbled by the simultaneous recusals of Roberts, O’Connor, and Justice Stephen Breyer. It is still early to say, but recusals caused by Roberts’ extensive stock portfolio could neutralize his impact on key business decisions. “It’s not a helpful thing to have three justices recusing, especially if they are ones who are up on business issues,” says Stephen Shapiro, a partner at Mayer Brown Rowe & Maw and a longtime expert on Court procedure. Shapiro says the unwritten “Rule of Four” — whereby the vote of four justices is needed to grant certiorari in a case — still holds even when only six justices are available. But clearly, finding four votes among six is exponentially harder than winning four out of nine. Ironically, one of the oft-suggested remedies for recusal problems is for judges to dump their individual stock holdings and convert them into blended mutual funds. But Alito did just that — his financial disclosure form reveals few holdings outside of Vanguard mutual funds — and he still found trouble. It all adds up to a tangled mess, says American University Washington College of Law professor Amanda Frost, the author of a searching Kansas Law Review article earlier this year that suggests major reform in the way the federal judiciary handles recusals. “The law of judicial disqualification has failed to protect the integrity of the judiciary,” says Frost. “It works weirdly outside of the procedures we usually use to decide difficult issues.” The basic model of an adversarial system where both sides present facts and arguments to an impartial judge is nowhere to be found in deciding whether federal judges should recuse themselves, she says. Hofstra University School of Law professor Monroe Freedman also says the handling of recusals is “in complete disarray.” But he is wary of submitting recusal questions to colleagues of the judge in question. If those colleagues are lenient, public confidence will erode further, Freedman says. If they are strict, collegiality among judges will suffer. He points to the damaging feud between the late Justices Hugo Black and Robert Jackson, which was triggered by Jackson’s public suggestion that Black should not have participated in a 1945 case that was argued by Black’s former law partner. Freedman, the author of a forthcoming law review article critical of Breyer’s recusal decisions, urges more modest reforms. To begin, he urges justices to publicly disclose the basis for recusals. “It’s impossible for anyone to understand now in a coherent way, because they refuse to explain their actions.” BOWING OUT Roberts decided in the first few days of his tenure that he, like the rest of the Court, would not ordinarily explain his reasons for recusal. In the past, perhaps with the Jackson-Black feud in mind, other justices have justified their silence this way: If they explain their reasons for recusing, they might unintentionally place pressure on other justices to recuse themselves in similar situations. As a result, many recusals remain a mystery. On Nov. 2 the Court announced that Roberts “now realizes that he should have recused himself” in the patent case Laboratory Corp. of America v. Metabolite Laboratories. Because of that, an earlier order granting review, which Roberts had joined, was rescinded; the case was rediscussed without Roberts, and the review was regranted. The immediate consensus was that Roberts recused himself because the petitioner was represented by the firm he left in 2003, Hogan & Hartson. But in recent days some have discounted that theory, suggesting there is another, less obvious reason that explains why Roberts missed the call at first. Asked for comment on Roberts’ Hogan-related recusals, firm Chairman J. Warren Gorrell Jr. says, “We really don’t know the reasons why any justice would recuse his or herself, including our own former partner.” The other mass recusals this fall were also unexplained, but are easier to figure out. In October, Roberts, Breyer, and O’Connor recused themselves in the denial of review for two patent infringement cases, Merck & Co. v. Teva Pharmaceuticals and Teva Pharmaceuticals v. Pfizer, Inc. Roberts and O’Connor both own stock in Merck and Pfizer, according to their latest financial disclosure forms, and Breyer owns Merck stock. And because the three all own Nokia stock, they also recused themselves in Cellco Partnership v. Pinney and Nokia v. Naquin, cases that concern the safety of cellular phones and thus affect the entire industry. Most lawyers involved in those cases did not return calls or would only comment anonymously, for fear of offending the justices. One says it would be “an interesting issue” for a corporation and its stockholders if it became clear that whenever the company petitioned the Supreme Court, or was brought there by an adversary, it would face only a six-member panel. But that lawyer and others note that the problem may lessen when O’Connor retires. Throughout her tenure, O’Connor has recused herself more often than her colleagues, mainly because of her telecommunications stock holdings. If Alito is confirmed to replace O’Connor, he will face far fewer stock-related recusals. Most of his assets are in a dozen different Vanguard funds — holdings that raised questions soon after he was nominated to the high court. Some Democrats say that Alito should have recused in a 2002 case that came before the U.S. Court of Appeals for the 3rd Circuit. The case was brought by the widow of a man who had challenged the freezing of his Vanguard-fund money in the wake of a court judgment against him. Compounding the controversy was Alito’s 1990 promise to the Senate Judiciary Committee that he would recuse in Vanguard cases. In a recent letter to Judiciary Committee Chairman Arlen Specter (R-Pa.), Alito said his participation in the case Monga v. Ottenberg resulted from an “oversight,” but when the appellant then objected to his participation, he decided to recuse and asked that the case be re-examined by another panel without him. Alito and other ethics experts, including George Mason University School of Law professor Ronald Rotunda, also point out that the code of conduct for federal judges treats mutual funds differently from stocks, because fund holdings do not ordinarily imply ownership in the company. Vanguard is structured somewhat differently, but Rotunda insists that because the outcome of the case would have had no impact on Alito’s financial status, it was OK for him to participate. The Judicial Conference code of conduct cited by Rotunda does not cover the Supreme Court, but by tradition the justices abide by it, and they are covered by the federal statute governing conflicts of interest for all federal judges. AU’s Frost says that judges need to change their investment practices. “These people have been appointed to important positions. It is not too much to ask that they sacrifice some of their stock holdings.” Stanford Law School professor Alan Morrison asserts that, despite Alito’s troubles, the best way to minimize recusals and the controversies surrounding them is for justices, when they go onto the Court, to sell their stocks, especially in companies often involved in litigation. Tax laws should be changed to eliminate capital gains taxes in this circumstance, he says, and the justices should plow their money into mutual funds and other “neutral instruments.” Creating blind trusts is a flawed alternative, Morrison adds, because judges would know that they still own the stocks that they began with until the trustee notifies them that they have been sold. When he headed Public Citizen Litigation Group, Morrison was in the thick of the controversy over Scalia’s hunting trip. “But suppose Scalia owned stock in a company that had a case before the Court and he refused to recuse,” Morrison says. “That hasn’t happened, but suppose it did. Can it be that he is the only one to decide?”
Tony Mauro can be contacted at [email protected].

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