Justice Ruth Bader Ginsburg’s husband Martin Ginsburg founded the D.C. tax practice for the prominent law firm of Fried, Frank, Harris, Shriver & Jacobson and “played an instrumental role” in the law firm’s tax practice during Justice Ginsburg’s tenure on the Court, up until his retirement in February 2009. You probably do not recall the brouhaha over whether Mr. Ginsburg should disclose his and his firm’s client list so that we could know whether Justice Ginsburg was taking part in cases that involved those clients. You also do not recall the controversy over whether it was ethical for Justice Ginsburg to take part in cases in which Fried Frank lawyers were counsel for parties or amici and even in a case in which Fried Frank was the actual defendant. (See point 3 here for such cases.)
The reason that you do not recall these things is that they never happened: There never was any brouhaha or controversy over supposed actual or potential conflicts of interest that Martin Ginsburg’s work presented for Justice Ginsburg.
The media’s bias is perhaps most potent in which matters it chooses to deem newsworthy. In October, Politico published a very long article that alleged supposed “potential conflicts [of interest] involving justices’ spouses” and that focused especially on Jane Roberts and Jesse Barrett. As I explained in this post, in addition to Politico’s striking failure to mention, much less compare, the activities of Martin Ginsburg, its key claims and insinuations did not survive scrutiny.
Politico is back at it again, this time joined by the New York Times. Both publications highlight charges made by a former colleague of Jane Roberts, Kendal Price. Price, who was fired in 2013 from the legal recruiting firm they were both working for, contends that records he obtained in the course of his unsuccessful lawsuit over his firing raise what NYT calls “potential ethics issues for the chief justice.” Politico and NYT report that Price has sent those records, along with a letter requesting an inquiry, to the Department of Justice and Congress. (Politico refers to the letter 13 times as a “complaint,” as if it were akin to a legal document filed in court.)
I explained in my October post why the similar concerns that Politico previously raised about Jane Roberts’s work as a legal recruiter were insubstantial:
[I]t is far from clear how Jane Roberts’s work as a legal recruiter would give rise to any genuine conflicts of interest for the Chief. Politico tells us that her clients “include lawyers or law firms sometimes with active Supreme Court practices” [sic*] and that her firm would typically receive “a percentage of the first-year salary she secures for her clients.” But are we supposed to believe that the Chief’s “impartiality might reasonably be questioned” under section 455(a) because, say, a law firm that hired one of his wife’s clients is representing a party in the case? The Chief would not be required to recuse under section 455(b) if his wife were a full-time employee (but not an officer) of a company that was a party to a case. Why would section 455(a) be read to require his recusal merely because she and her employer have received standard compensation for her services from a law firm that is representing a party? What substantial motive would he have for favoring the law firm, and what conceivable reason is there to think that he would act on any such motive?
Or, as UVA ethics expert Amanda Frost (who is not a conservative) tells NYT, “It feels hard to imagine how this would corrupt his vote.”
One further point:
According to NYT, a spokeswoman for the Court says that the Chief Justice and Mrs. Roberts have consulted the Code of Conduct for United States Judges, including a 2009 advisory opinion titled “Disqualification Based on Spouse’s Business Relationships.” That opinion sets forth the “general proposition” that “the fact that the spouse or the spouse’s business has a business relationship with an entity that appears in an unrelated proceeding before the judge usually does not require the judge’s recusal.” In elaborating this general proposition, the opinion sets forth factors that a judge should consider when the judge “knows that a client of the judge’s spouse or the spouse’s business appears before the judge.” (Emphasis added.) By contrast, “if a judge is not aware that a party, law firm, or attorney in a proceeding before the judge has a business relationship with the spouse’s business, the judge’s impartiality could not reasonably be questioned.”
So there is the threshold question whether Jane Roberts informs her husband who her clients are. Any prudent judge who reads the advisory opinion would adopt a no-ask-no-tell policy with a spouse who is a legal recruiter (and thus avoid the opinion’s complicated multi-factor inquiry). That would have been the obvious choice for the Chief Justice and Mrs. Roberts to make, and I’d be very surprised if they didn’t.
* It’s unclear to me what that clumsy phrase “lawyers or law firms sometimes with active Supreme Court practices” means. Insofar as “sometimes with active Supreme Court practices” modifies “lawyers” (and not just “law firms”), I will note that Mrs. Roberts has stated that she (in NYT’s paraphrase) “refrain[s] from working with lawyers who [have] active Supreme Court cases.” Given the certiorari pipeline, that would presumably include just about everyone who has an active Supreme Court practice.