LAST YEAR, THE Kansas City Star ran a series of stories outlining the widespread and illegal practice among federal judges of hearing cases when they own stock in one of the parties to the litigation. The law could not be clearer on this point. As the Judicial Conference put it in a memo following the series, "A decision to disqualify [oneself] based on financial interest is mandatory under the [law] and cannot be waived by the parties." Yet the Judicial Conference also declined, in light of the series, to change the rules governing the availability of judges' financial disclosures. Judges' financial statements are not available at courthouses. To get them, litigants must order them from Washington, and the judges are tipped off when someone requests their disclosures. In other words, a litigant who requests such information risks angering the judge hearing his case.
Today, Post staff writer Joe Stephens reports on a follow-up to the Kansas City Star series (of which he, incidentally, was the author) that was conducted by an environmental litigation group called the Community Rights Council. The CRC study took a snapshot of the federal appellate bench. Looking at cases decided in 1997, the CRC found that of 149 judges, eight heard cases in which they had disqualifying financial interests in a party. While the cases affected are a tiny percentage of the federal appeals docket, the judges involved constituted 5 percent of the appellate bench and included some of the most prominent and well-respected jurists active today. The report also, in all likelihood, understates the problem. The CRC looked at only one year, ignored senior judges and corporate subsidiaries, and considered only cases that could be found using the Lexis online service. The group's finding suggests that the problem of judges illegally hearing cases in which they have conflicts of interest is, as the Kansas City Star series also found, serious.
Though the problem probably results from carelessness, not corruption, the consequences for the public perception of the federal justice system are not to be underestimated. Consider the case of Judge Alice Batchelder of the U.S. Court of Appeals for the 6th Circuit. Judge Batchelder heard several cases in 1997 involving Wal-Mart. One was an appeal of the dismissal of a suit by the father of 19-year-old who bought a gun from the chain and used it to commit suicide. Judge Batchelder, whose husband owned stock in Wal-Mart, served on a panel that affirmed that dismissal. Though there is no particular reason to suspect her holding in the company affected her judgment in the case, such conflicts look terrible and leave lingering questions about whether justice was really done.
The Judicial Conference should reconsider its decision not to make disclosures easily available at courts. The judiciary has cited privacy and security as its reasons for notifying judges when their disclosures are accessed. Neither reason is persuasive. These are public documents. While judges are presumably not intentionally flouting the law, their failure to recuse themselves with sufficient regularity implies that litigants should more easily be able to bring conflicts to their attention.