MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE:
I thank you for the opportunity to address the subject of seminars for judges and the subject of judicial recusal, as the latter is addressed in 28 United States Code § 455 and Canon 3C(1)(c) of the Code of Conduct for United States Judges.
I. PRIVATELY FUNDED SEMINARS
INTRODUCTION
I would expect that the members of your Committee would have little idea of who I am, so please allow me to introduce myself as it may be material to the matters for your consideration. From my childhood through college, my father served as a probation officer in the federal courts. In that atmosphere, I learned a great respect for the federal judiciary. During law school, my admiration for the integrity of the court increased with each opportunity I had to visit the federal district court. Judge Johnson J. Hayes of the Middle District of North Carolina was my first hero. Throughout 30 years of private practice of law, my specialization was almost exclusively in federal court litigation, both civil and criminal. My private practice was interrupted by the five years I served as United States Attorney. Ten years ago, I was appointed to the federal bench. I have for six years been a member of the Judicial Conference’s Committee on Codes of Conduct. I presently serve as its chairman. I do not consider myself an expert in the field of ethics for federal judges, but I am an avid student of the subject. The only experts of my acquaintance are Judge Raymond Randolph of the D.C. Circuit and Judge Carol Amon of the Eastern District of New York, both former Chairs of this Committee, along with two current members of the Committee.
The significance of this historical reflection prompts me to state, perhaps immodestly, but very proudly, that few people here today have longer admired, both personally and professionally, the integrity and independence of federal courts. I believe my enthusiasm for the third branch of government is shared by all of my judicial colleagues.
SEMINAR PARTICIPATION
In the interest of full relevant disclosure, I have attended the Foundation for Research on Economics and the Environment (FREE) seminar in Bozeman, Montana — not at a dude ranch, as some may suspect, but at an accommodation with a nice restaurant, a reasonably good meeting room, and sleeping accommodations in surrounding cabins. It was an interesting seminar concentrating mostly on past, present, and anticipated future attempts to save Yellowstone National Park. I have also attended three George Mason School of Law, Law and Economics Center seminars. The first was a basic introduction to Economics and Statistics. As a college graduate in Economics, I was able to follow a good deal of the lecture material. The second seminar involved microeconomics and other advanced theories of economics. I struggled substantially to keep up with new theories and application of economics. Finally, the last was a seminar entitled “Individual Responsibility and Culture,” in which among others, the writings of St. Augustine, Burke, Rousseau, and Nietzsche were examined — an absolutely fascinating presentation.
All of the LEC seminars were intellectually taxing, requiring much advanced preparation with reading before and after arrival at a nice Tucson, Arizona, hotel. There was some time for relaxation, but I chose sightseeing and I played golf — all at my own expense.
As easy as it would be, it is not my purpose or responsibility to proclaim the preeminence of the George Mason LEC in its field, but make no mistake, I believe the LEC selects lecturers with impeccable credentials and does an excellent job of helping judges exercise and improve the use of their intellect and judgment. I could not discern from the lectures and association with the LEC leadership whether it espouses a liberal or conservative philosophy. The programs were highly academic and not political. Some of the lecturers were Nobel laureates — Milton Friedman and Paul Samuelson. Others were nationally acclaimed academics in their chosen fields — Francis Fukuyama of George Mason; George Priest, Yale Law School; Gordon Wood of Brown; Jean B. Elshtain, University of Chicago Divinity School; and two of my personal favorites, Orley Ashenfelder of Princeton and Charles Goetz, University of Virginia Law School — none of whom shared their political philosophies. All lecturers were highly competent in their chosen fields of endeavor. None would have sullied their own reputations by attempting to instruct judges on how to judge. They exposed our minds to reason and alternative fields of academia. The audience of judges included a few individuals appointed by Presidents Carter and Reagan and a pretty even number of individuals appointed by Presidents Bush and Clinton.
ATTRIBUTES OF JUDGES
In order to address the appropriateness of privately-funded seminars, we should first consider what we expect judges to be. Contrary to the urging of some, I do not believe judges should separate themselves from human discourse. Of course, the public has an absolute right to expect that judges will maintain the integrity and independence of the third branch. Judges should avoid impropriety and the appearance of impropriety in all activities. Judges should perform their duties impartially and diligently. All of this is in keeping with the Code of Conduct for United States Judges and the later-enacted statutory version 28 U.S.C. § 455. The standard has been prepared for and set by judges themselves. No other group has prepared its own code of conduct subject to such exemplary or strict requirements. All of this is part of, but not the full measure for, defining excellence in the Judiciary.
I submit that a good judge is one whose mind remains active and alert. It would be inappropriate to require tunnel vision of judges, for you would soon find that the judges had closed out the ability to evaluate factual and legal concepts. I know that the Chairman of your Committee had an active trial practice before becoming our Congressman and perhaps others of you have experienced trial practice. You may draw your own conclusions, but as for me, I preferred to appear before a judge who had an active, inquiring, and challenging mind, one who could decipher complicated issues of technology and change, and understood the precedential value of legal history, along with the common sense to appreciate the value of everyday life. I submit that a judge can best fulfill the obligation of this responsibility by maintaining an active, personal interest in mind-improving experiences, such as music, art, baseball, religious study, principles of economics, political history, and the list goes on and on. Judge Learned Hand captured the point poignantly when he said,
I venture to believe that it is as important to a judge called upon to pass on a question of constitutional law, to have at least a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rubelais, with Plato, Bacon, Hume and Kant, as with the books which have been specifically written on the subject. For in such matters everything turns upon the spirit in which he approaches the questions before him.
Listening to Nobel laureates Paul Samuelson and Milton Freedman, or such outstanding notables in their fields, I have already named, is part of continuing education for judges much to be desired. These are the types of presentations for which an institution should receive commendation — not condemnation.
CRITICISM OF SEMINARS
I read with interest, though much disagreement, the submission to this Subcommittee by Mr. Kendall of the Community Rights Counsel. First, let me address a few small matters perhaps included in his comments to arouse suspicion. His paper refers to the LEC and FREE seminars as junkets to exotic, posh places. That is obviously an attempt to arouse your emotional animosity. Interestingly, and quite properly, no one voices an objection to the Federal Judicial Center’s seminar locations as either junkets or exotic. Now, I ask you which are more exotic — Miami, San Diego, Portland, Philadelphia, Cold Springs Harbor — sponsored by the FJC or Tucson and Bozeman, privately sponsored? None were posh. Frankly, I liked them all, except one. None of them appeared to be “exotic” — I found all of the places to be appropriate. While I have no personal knowledge, I am reliably informed that seminars can be held in such locations at considerably less expense than in Washington or New York. I should note in passing that the FJC does an excellent job of seminar planning for both location and content. My comparison here in no way impugns the quality or the frugality of its presentations.
Second, Mr. Kendall would have you believe that concern about these seminars is of recent origin when he says, “three years ago when word of these trips first came to light. . . .” An even cursory review of the public record establishes that since the early 1970's the Aspen Institute, the University of Miami’s LEC, the Danforth Foundation, New York University, Center for Advanced Studies at Stanford, the Einstein Institute, various Ford Foundation funded enterprises, and others too numerous to mention, have been inviting judges to seminars. Law schools have offered free opportunities for judge participation in seminars for many years before that. In 1978, the Advisory Committee on Judicial Activities (predecessor to the Committee on Codes of Conduct) advised that judges could accept those invitations. News articles in 1979-80, including The Legal Times, Fortune, and The Washington Post, publicly discussed private seminars for federal judges. So, to claim that this is a new exposure simply, at best, overlooks the obvious. I believe that the George Mason LEC program has been in existence for 25 years. It is listed on a website where a review of its courses and subjects are available to anyone upon inquiry.
There is, however, a more serious allegation by the CRC which results from an incorrect understanding of Advisory Opinion 67. To set the stage, Mr. Kendall quoted my telling “20/20," “I have no idea where [LEC] gets its money.” This is obviously intended to prove that I have a callous disregard for an ethical obligation. Mr. Kendall did not consult me about this quote, and he was not obligated to, but if he had, he would have found that I advised “20/20" that it was unnecessary to check on the source of funding to George Mason because, under the circumstances, Advisory Opinion 67 does not require it. It requires that I determine the detail of funding if the source is involved in litigation or likely to be involved and the topics covered in the seminar are likely to be in some manner related to the subject matter of litigation pending or impending before me. Of course, the explanation never made it through the cutting room at “20/20.” The linchpin of CRC’s major complaint is thus misplaced. It is my understanding that corporations contribute no more than a token portion toward seminar expenses. In fact, support for George Mason LEC’s seminars comes mostly from other than corporations. In 2001, corporate support accounted for 13% of LEC’s revenues. The average corporate donation was 0.7% of revenue.
Certainly, judges must be mindful that if a seminar is sponsored by actual or potential litigants in a judge’s court and the topics covered are likely to be related to the subject matter of the litigation, then a judge should not attend. That would be in conflict with the rules of conduct and I think we would all agree that it would be inappropriate. Advisory Opinion 67 is quite clear in reaching that decision.
Other criticisms on this subject appear to rest on faulty assumptions. For example, there is the assumption that the seminars are designed by corporations in litigation before the attending judges. Yet, I have seen no evidence to support that assumption. On the contrary, the seminars in question were offered by a private foundation (FREE) or a law school (George Mason). Each was responsible for the design and content of the program. Not only did the seminar planners inform us of this fact, but it is borne out by the fact that each seminar asks judges to rate the faculty and make suggestions for change. George Mason University is on record that its judicial seminars are funded completely by the Law and Economics Center and it has established a Judicial Advisory Board consisting of distinguished jurists from throughout the nation whose responsibilities are to suggest and help select appropriate subjects and places for its seminars.
Second, there is an assumption that judges who attend these seminars are improperly influenced by corporate interests. The supporting evidence for that assumption is also missing. Besides, Advisory Opinion 67 counsels: “Judges are continually exposed to competing views and arguments and are trained to weigh them.” Let me suggest that in this modern day of proliferating litigation, some caused by Congressional enactment, some by increased population, and some by the nimble minds of a litigious society, seminars are a necessity. Judges need exposure to ideas and concepts. This would be true even if some presentations are not balanced in content. Judges are constantly faced with unbalanced presentations in the course of litigation and early on recognize that the law contains more ponderables than absolutes. The fact that some presentations are not balanced should not prevent exposure to new and innovative and sound reasoning.
THE ADVICE IN ADVISORY OPINION 67 IS VALID
There is substantial proof that Advisory Opinion 67 is well reasoned and appropriate. For 21 years that opinion has been in place and there is no evidence that judges are making improper decisions after attending a privately funded seminar. How am I able to assert that? The same way we evaluate all other decisions — by looking at the appellate process. The appeals or lack of appeals — which are just as telling — reveal that judges are not being improperly plied with propaganda. That record speaks volumes.
The Second Circuit Court of Appeals in Aguinda v. Texaco, 241 F.3d 194 (2nd Cir. 2000), met head on this same issue which CRC raises today. Judge Winter writing for the unanimous court reviewed Advisory Opinion 67 and the statutory counterpart, 28 United States Code § 455(a) and concluded that there was no actual or perceived impropriety in the trial judge’s private seminar attendance. The standard used in arriving at that decision was the perception in the eyes of a reasonable person.
The Chief Justice of the Supreme Court has spoken eloquently in support of the continuing opportunity for federal judges, and I quote, “Seminars organized by law schools, bar associations and other private organizations are a valuable and necessary source of education in addition to that provided by the Federal Judicial Center.”
Most emphatically, the Federal Judges Association, on September 18, 2000, voiced its support for privately funded seminars and its objection to an impingement upon legitimate First Amendment rights. But, for a moment, let’s examine that. Suppose you do have a right to limit my access to private seminars which invite me without cost. Could you prevent my attendance if I pay for it? I think not. Then what have you accomplished? Is the objection because it is free or because of its content? And further, if you could limit my access to free or paid for education — what then? I will have the option of the Internet. I can also pay for my own volumes which may be more unbalanced. With all due respect, the Congress should abstain from any attempt to limit the access of judges to knowledge and information. The Judiciary itself has exercised the responsibility and it possesses the capability to continue to set its own code of conduct for learning opportunities.
Significantly, the organization of attorneys specializing in federal practice, The Federal Bar Association, 15,000 members strong, supports the continuing opportunity of education at private seminars for federal judges.
Finally, the United States Judicial Conference has continually reexamined the educational opportunities for judges over the last 20 years and concluded that our present opportunities are appropriate. The Judicial Conference has made no recommendations for change.
PROBLEMS WITH LEGISLATION
It imposes a serious threat to the separation of the branches of government for one branch of the government to impose its will on the other by limiting access to knowledge.
As much as I respect the Federal Judicial Center, I do not choose that group or any other as the censor of my right to increase my knowledge. Neither do I want any group to determine for me when I have had a balanced meal or a balanced input of knowledge.
The Federal Judicial Center, with its excellent organization, has neither the necessary funding nor the manpower capability to set and provide appropriate parameters and programs for my access to knowledge.
Legislation which closes a circle around judges necessarily closes out important and helpful local and state and national bar associations, law schools, and generally all institutions of higher education. It would probably prohibit our association with other government entities. It could, for example, prohibit my attendance at a church retreat focusing on the relationship of church and state, or other meaningful community subjects.
CONCLUSION
The Judiciary has set imposing and adequate standards for judicial education which have been successful over a long period of time. Courts have affirmed the opportunity for judges to acquire knowledge. Lawyers with federal trial experience have endorsed the educational opportunity programs.
The wheel is not broken, it is not bent, and is operating efficiently. Relevant evidence reflects that Congressional intervention is not required and such attempt could have extremely damaging and unjustified ramifications.
II. RECUSAL UNDER 28 U.S.C. § 455
and
CODE OF CONDUCT FOR UNITED STATES JUDGES, CANON 3(C)(1)
INTRODUCTION
Canon 1 of the Code of Conduct for United States Judges states that judges should uphold the integrity and independence of the Judiciary. Canon 3C(1)(c) requires a judge to recuse or not participate in litigation in which the judge or the judge’s spouse or minor child residing in the judge’s household owns stock. All other canons are aspirational — only 3(C)(1) is mandatory. Congress has enacted 28 United States Code § 455, which is a mirror image of Canon 3C(1)(a)-(e). It is absolutely clear that judges cannot preside over litigation in which the judge or his wife own stock in the litigant. This is an appropriate, understandable requirement and is not subject to debate. We, as judges, should strive for and the public has a right to expect compliance with that mandate.
HISTORY OF RECUSAL
The standards for recusal of federal judges are set forth in 28 U.S.C. § 455 and the corresponding Code of Conduct for United States Judges, Canon 3C(1). These provisions, which date from the 1970's, have historical antecedents stretching back centuries, even millennia. Principles of judicial fairness are reflected in ancient Talmudic writings. Early Jewish and Roman civil codes also provided for disqualification of judges due to personal relationships or bias. In our more recent legal tradition, the British common law allowed for disqualification of judges due to financial interest.
The earliest statutory provision in this country dates from 1792, when Congress provided for disqualification of judges who had an interest in a matter or had previously acted as counsel in a cause. Similar fundamental values are embodied in the Constitution’s due process clause. Trial by an impartial judge is considered an essential element of due process in judicial proceedings.
Over the past two centuries, Congress has expanded the statutory recusal standards to address a number of specific situations. For example, under 28 U.S.C. § 455, judges are disqualified from handling matters if they previously served as an attorney in the matter, or if a close relative is involved as a witness or party, or if they know they have a financial interest in one of the litigants. In each of these situations, reasonable questions about a judge’s impartiality are simply presumed, irrespective of the particular facts and circumstances. These situations fall within the specific recusal standards of the statute.
Judges may also be disqualified under § 455's general recusal standard. That standard provides for disqualification in any proceeding in which the judge’s impartiality might reasonably be questioned. Under this standard, disqualification is not assessed from the perspective of the litigants or the attorneys or even the news media. Rather, it is assessed from the point of view of a reasonable person informed of the relevant circumstances that a reasonable inquiry would disclose.
These general and specific standards have been incorporated in § 455 for several decades. I believe the statute sets forth appropriate standards of conduct and has operated effectively. This is due in large part to the approach Congress adopted. That is, the statute provides for automatic disqualification only in circumstances where there is general consensus about likely partiality or where (as in the case of disqualification due to financial interest) there is some advantage to a bright line rule. Further, the statute does not attempt to anticipate every possible disqualifying scenario that might arise but instead addresses a limited number of predictable situations that commonly occur. The general disqualification standard serves as an overall check on judicial conduct falling outside of the specific, listed scenarios.
As a practical matter, the federal disqualification statute relies on individual judges to make individual assessments about their ability to handle a matter fairly and impartially. Fact-specific determinations are an essential part of this process. While individual judges are responsible in the first instance for deciding whether to recuse or not, their determinations are ultimately subject to appellate review. Indeed, federal appeals courts have not hesitated to review district judges’ recusal determinations when they have been challenged by way of mandamus or appeal. Just this year, courts of appeals in Washington, D.C., and in Boston ordered district judges to recuse because of concerns that their comments to the press gave rise to reasonable questions about their impartiality: United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. June 28, 2001), and In re: Boston’s Children First, 244 F.3d 164 (1st Cir. March 2, 2001).
RECENT DEVELOPMENTS
In 1998, a reporter for the Kansas City Star, Joe Stephens, brought to our attention that in some 57 cases judges had issued one or more orders while the judge or the judge’s spouse owned stock in a litigant. Since then, CRC, which requested and was given access to judges’ financial filings, claims to have found 17 more cases in which judges or spouses owned a disqualifying interest. Based on these two facts, CRC blatantly concludes and I quote, “judge [sic] are honoring in the breach the golden rule against ruling in cases in which they have a disqualifying financial conflict of interest.” That conclusion, which presumes that the Judiciary is intentionally violating ethical standards, is absolutely incorrect. Please let me explain.
First, in the interest of fairness, I must state that CRC’s research is incomplete. In addition to the previously mentioned cases, in Minneapolis, it was alleged that judges had issued orders in four cases, while possessing a disqualifying stock interest. In New York, it was contended that approximately 14 cases had been improperly handled. At least four other cases have been reported throughout the country. That is a total of 96 cases rather than CRC’s alleged 74 matters.
Second, there are important matters that CRC has conveniently left unsaid, such as:
- in a large number of cases, the judges had ruled on non-substantive matters — such as setting schedules for pretrial discovery or granting extensions of time within which to file pleadings;
- in some cases, spouses had purchased stock without the judge’s knowledge;
- some litigants had purchased entities or had been purchased without the judge’s knowledge;
- in a few of the cases, the allegations of wrongdoing were incorrect for having been erroneously based upon the yearly financial disclosures rather than current recusal lists.
- even critics concede they have no evidence that judges profited individually or skewed their decisions because of their stock holdings;
- and, yes, in some cases, the presiding judge had, for whatever reason, failed to recuse.
In not a single one of the reported 96 cases has there been a reversal on substantive grounds. There have been no appellate decisions reversing the trial judges for reaching the wrong substantive decision. I am not offering these mitigating factors as an excuse or justification for imperfection, but they conclusively reveal no intended harm or resulting harm.
But let us for a moment consider the size of the problem by adding the 74 cases cited by CRC and the additional 22 cases, for a total of 96. These cases represent all allegations found over a three and one-half year period. In 1999, an average year, there were 264,000 new civil cases filed in federal court. Using the two-year average life expectancy of federal litigation, that means during 1999 and 2000, there were approximately 528,000 active cases within various federal jurisdictions. Assuming that in each of the 96 cases there was improper judicial participation, it follows that in 0.00017% of all cases in the federal system, there is evidence that a judge may have signed an order or presided when the judge should have recused. That’s not perfection, but it is mighty close. It refutes CRC’s contention of honor in the breach.
Now, since the original Kansas City Star article, a number of entities and individuals, including Joe Stephens and CRC, have filed requests for my annual financial disclosures. I have more than a hunch that financial disclosures for all federal judges have been meticulously reviewed. Since 1998, the number of Canon 3(C)(1) and § 455 allegations has continually decreased. This is not by accident. I, for one, want to credit Joe Stephens for doing an outstanding reporting service. He has made judges acutely aware of the consequence of failure to demand perfection in our recusal responsibilities. But other things have happened to improve our system. We now have computer-assisted automated conflicts screening. Federal rules have been amended to require disclosure of corporate parents for litigation. Model checklists have been developed to assist judges in preparing recusal lists. (See attached exhibit.) The Judicial Conference has been much involved in assisting judges with their obligation.
Also, I am extremely proud of our Codes of Conduct Committee. Before 1998, we were fulfilling our assigned responsibilities by advising judges upon their inquiries. We were not and are not an enforcement or investigative agency. However, because we recognized a need, members of our Committee have made themselves available to all bankruptcy, magistrate, and district judges’ conferences to discuss this important matter of recusal. We have offered to speak to all circuit and national conferences of judges. With the help and support of the Federal Judicial Center, we have received invitations to speak at recent conferences of judges. (See attached list of our Committee’s participation and training seminars.)
It has been argued that obtaining a judge’s annual financial disclosure report presents great difficulty, apparently for the reason that judges are notified when a request is made. I disagree that such notification causes the requester great difficulty, but for the moment let us suppose that it does. What’s wrong with notification? The financial statements contain a great deal more information than would be helpful to a litigant. To some extent, the difficulty prevents “judge shopping.” It enables those responsible for security to be alert to matters which may cause danger to judges. The public knowledge of a judge’s financial condition has in some instances enabled the unscrupulous to frivolously and improperly levy upon and harass a judge’s financial holdings. Especially in these times when heightened security measures are required, great care should be used in determining whether and the extent to which financial information should be made public.
Since the financial reports are yearly documents, they cannot be relied upon for recusal concerns. Judges like other citizens may and should restructure and compose their financial holdings much more often than a yearly statement would reflect. Thus, an up-to-date recusal list is more valuable than the financial statement for litigants.
For the same reason I support limited access to financial statements, I oppose the requirements of publicly filed recusal statements. There are many unique and quite different potential problems of security, harassment, judge shopping, and other distractions throughout the nation. What works in Greensboro, North Carolina, may be completely ineffective in Detroit or Denver, or New York. Let me give you an example — I still list my home telephone and address in the telephone directory. Although our U.S. Marshal protests my listing, it has caused me no difficulty. Public listing in some places throughout this country would border on stupidity or at least bad judgment. The same is true of public disclosure of recusal lists. Judges must be allowed to make their separate and necessary assessments based upon familiarity and uniqueness of their potential difficulties.
While I do not post my recusal list publicly, it is maintained in the Office of the Clerk. Upon inquiry of the Clerk, an individual may view that list, and I am not notified. So far, that has worked for me, and I will continue it until necessity requires a change. But I reiterate, what works for one may be legitimately unacceptable for another. Judges should have the right to make their own decisions on publishing or not publishing. I submit that the Judicial Conference is in the best position to determine the need for and the timing of rules concerning publication.
CONCLUSION
There is no evidence that failure to recuse for stock ownership is a pervasive matter. It is, however, important. The record of the Judicial Conference, the Federal Judicial Center, the Administrative Office of the U.S. Courts, individual judges, and the Committee on Codes of Conduct quite clearly indicates that the problem has been and will continue to be addressed. The record shows substantial reduction in the amount of errors occurring, and we will enthusiastically continue to strive for perfection. That goal will be best addressed by the Judiciary itself.
I want to emphasize that I am not requesting legislative amendment to the statute, and the Judicial Conference has no pending recommendations on this subject. I believe this reflects the consensus view within the Judiciary that the recusal statute is functioning properly and no reform is needed.
I thank you, Mr. Chairman, and the members of your Subcommittee.