conflict of interest – The Interdependent Third Branch

Judges Behaving Badly

A guest post by Lawrence Friedman

Attention turned this spring to U.S. Supreme Court Justice Clarence Thomas following revelations of both the close relationship his wife, Ginni Thomas, a conservative activist, enjoyed with operatives involved in perpetuating the lie that Donald Trump won the last presidential election; and her express alignment with interest groups appearing before the Court. For his part, Justice Thomas has given no indication that he has or will recuse himself in cases in which his wife played some part.

But Justice Thomas is not the only jurist involved of late in questionable decisions regarding the limits of the judicial role. Back in 2018, as discussed here, Massachusetts state district court judge Shelley Joseph allegedly interfered with the enforcement of federal immigration law. The government maintains that, after presiding over the arraignment of an undocumented immigrant for whom Immigration and Customs Enforcement (ICE) had issued a detainer and warrant for removal, Judge Joseph helped the individual to avoid the ICE official waiting for him to exit the courthouse. The government charged her with conspiring to obstruct justice and obstructing a federal proceeding. In February, the U.S. Court of Appeals for the First Circuit rejected her request for interlocutory relief while her prosecution continues in the U.S. District Court for the District of Massachusetts.

More recently, there is the story of New York Court of Appeals Judge Jenny Rivera, under investigation by the state’s Commission on Judicial Conduct for refusing to adhere to the court system’s COVID-19 vaccination mandate. As the New York Times reported in March, Judge Rivera “has participated remotely in the court’s activities since the fall, when the state court system’s vaccination mandate took effect and unvaccinated employees were barred from court facilities.” The other six justices of the state’s highest court have continued to confer and hold oral arguments in person. It seems clear that Judge Rivera did not claim she was exempt from the mandate on either religious or medical grounds. Continue reading “Judges Behaving Badly”

Judge, Jury, and … Defendant?

A former public defender sued the federal judiciary’s lead administrative institutions for mishandling a harassment claim. Can those same institutions select the judges who hear the case?

Next week, the Fourth Circuit Court of Appeals is scheduled to hear argument in Roe v. United States, a case involving allegations that federal court officials — including those in the Administrative Office of the U.S. Courts (AO) — mishandled a workplace harassment claim. But none of the judges hearing the Fourth Circuit appeal are actually from the Fourth Circuit, just as the judge who heard the original case in the Western District of North Carolina was not from that district. Nearly two years ago, Chief Justice John Roberts reassigned the case to a district judge in Massachusetts and a “Fourth Circuit” panel composed of judges from other circuits.

From the courts’ perspective, this reassignment of the case was ordinary and ministerial, a way of avoiding the appearance of partiality or bias by taking the case away from judges in the district and circuit where the key events took place. But the plaintiff, whose case was eventually dismissed, suggests that the process of reassignment was itself so flawed as to create “blatant conflicts of interest” and a “severe appearance of impropriety.” Accordingly, she is seeking to vacate the judgment of dismissal.

The controversial reassignment process involved the Chief Justice, the Judicial Conference Intercircuit Assignment Committee, and staff from the AO and the Fourth Circuit. The judiciary’s brief recounts that a Fourth Circuit staffer informed an AO staffer about about the need for an intercircuit assignment — both for the district court and appellate proceedings. The AO staffer then consulted a roster of judges who had previously indicated their willingness and availability to serve on panels in cases in which one or more judges had been recused. The AO staffer then contacted each of the judges to confirm availability and willingness to serve on the case. Once the judges were confirmed, the staffer notified the Chair of the Intercircuit Assignment Committee, who finalized the necessary administrative paperwork for the Chief Justice’s signature.

The court system (represented, interestingly enough, by the Department of Justice) repeatedly characterizes this process as “routine,” noting that none of the individuals involved in the reassignment had any stake in the outcome of the case. Still, the plaintiff is unsatisfied. Although she does not claim that any of the reassigned judges are actually biased against her, the mere fact that individuals from the Judicial Conference and AO were involved in their selection is a glaring red flag. As plaintiff’s brief puts it, “[w]here following a routine process would create a conflict of interest in a particular case, the routine is supposed to yield–through proper recusal–in order to avoid the conflict of interest.”

This is a matter of substantial organizational complexity. Taken at face value, the plaintiff’s position suggests that any lawsuit naming the Judicial Conference or AO as a party would necessarily invalidate any reassignment, unless a completely different administrative apparatus is tasked with that responsibility. That could be accomplished only with considerable inefficiency. Even if the AO were to hand over its files on available judges to another office within the federal court system so as to wash its hands of the decision, the files themselves might arguably be tainted by having come from the AO. And, of course, the mechanism for selecting new judges would be placed into the hands of individuals and institutions who are not readily equipped to perform that function.

Unfortunately, the plaintiff does not offer any clear solutions here, other than blanket vacatur of the lower court decision. That is her right, and perhaps it is good strategy. But it is hard to see how the current panel would simply throw the reassignment process into disarray without some idea of how the challenge could be met in the future.

Newly elected judges swap courts to minimize conflicts of interest

Two recently elected judges in upstate New York have been assigned to each other’s courthouses in an effort to minimize potential conflicts. Both judges were long-time legal aid attorneys and developed extensive relationships with lawyers and other actors in their respective courts. Recognizing that the likelihood of a conflict of interest — real or perceived — was too high, the state court administrator had the judges swap courts for a year.

This is a rather elegant solution, and seems to be in the best interests of all involved. The judges can get accustomed to the bench without the constant specter of conflicts, and soon enough will return to the jurisdictions that elected them. In the meantime, the public can have more confidence that the judges’ decisions are not based on old professional relationships, and the court system will have fewer conflicts to manage.

Another major conflict of interest in Brooklyn’s judicial elections

The chicanery surrounding judicial elections in New York City, and especially Brooklyn, will come as no surprise to longtime readers of this blog. But here we go again:

Brooklyn lawyers who decide who can get the crucial Democratic ballot line to run for prized judicial seats are getting jobs as legal guardians and referees from the very judges they’re charged with reviewing — and their law firms are appearing before those same judges in active cases.

Of the 25 attorneys listed as serving on the Brooklyn Democratic Party’s judicial screening panel in 2019, at least five have been given jobs as court-appointed lawyers by the judges they’re tasked with reviewing, the Daily News has learned.

Previous coverage of the Brooklyn’s high quality approach to selecting judges here, here, here, here, here, and here.

Some thoughts on the Wendy Vitter nomination

I am quoted toward the end of this NOLA.com story on the nomination of Wendy Vitter to be a federal district judge in the Eastern District of Louisiana. As I pointed out in the story, the EDLA is down two full-time district judges and desperately needs people to step in and roll up their sleeves: the district has the second-highest number of pending cases in the country, and the sixth-worst number of trials completed during the last fiscal year.

The story emphasizes that many observers are happy with Vitter’s nomination — she has more than 100 criminal trials under her belt as a state prosecutor, and generally seems to be well-respected within the New Orleans legal community. Still, detractors raise three objections to her nomination: her lack of federal litigation experience, her marriage to a former U.S. Senator, and her Catholic faith. None of these should derail her nomination.

Continue reading “Some thoughts on the Wendy Vitter nomination”

Canadian judges cleared of conflict-of-interest charges

Three federal judges in Canada have been cleared of wrongdoing after they attended sponsored social events at an international tax conference in Spain. The Canadian Judicial Council concluded that concerns that the judges’ attendance compromised their impartiality were “unfounded.”

The judges themselves were more sanguine about the signal their attendance might have sent. Judge R.S. Bocock, for example, recused himself from a pending case involving one of the sponsors, even though he was unaware of the conflict at the time he attended the sponsored event. Bocock stated,

“I have reflected on this entire matter….The potential for a conflict of interest in this matter seems remote; however, through inadvertence, the portrayal of a potential conflict, where all the facts are at first unknown, is possible,” said Bocock, in a letter sent to the complainant.

“As such, there are consequences, costs, and reputational risks to the judge, the judiciary and the administration of justice as a whole. Prudence and best practice would suggest that, in future, refraining from attending such off site sponsored conference receptions is a better and wiser choice. I certainly intend to follow this prudent conduct in the future.”

Judges often have to straddle a line on social occasions so as to not appear to favoring a particular party or law firm. The appearance of impartiality is so important that most judges choose to avoid more social events than they rightfully should. But there is no easy solution. Justice Abe Fortas reportedly said that “Judging is a lonely job in which a man is, or near as may be, an island entire.” The phrasing is a bit stiff, but there is plainly some truth to the observation.