Politico recently published a very long article weirdly titled “Justices shield spouses’ work from potential conflict of interest disclosures.” The article trumpets an “investigation” that supposedly “shows potential conflicts [of interest] involving justices’ spouses,” and it focuses especially on Jane Roberts and Jesse Barrett. But the article strikingly fails to mention, much less compare, the activities of Justice Ruth Bader Ginsburg’s spouse that did not warrant her recusal. Its key claims and insinuations do not survive scrutiny.
Some observations:
1. Critics of the justices’ ethical practices usually complain (as the left-wing group Fix the Court does here) that the justices “are the only federal judges not bound by the Code of Conduct for U.S. Judges.” That complaint is wrong in one respect and misguided in another: The Code of Conduct does not bind lower-court judges; it merely provides guidance to them. (See point 1 here.) And the federal statute governing recusal—28 U.S.C. 455—which reiterates the principles in the Code of Conduct—applies to justices as well as lower-court judges.
Yet in highlighting that the justices aren’t required to disclose the names of all of their spouses’ clients, Politico does not see fit to mention that lower-court judges likewise face no such disclosure requirement. In fact, justices and lower-court judges fill out the very same financial-disclosure report (Form AO 10) and are governed by the same regulations. The justices aren’t “shield[ing]” anything.
2. Section 455(b) of Title 28 specifies very narrow circumstances in which a justice (or judge) shall recuse because of a spouse’s activities: when the justice knows that the spouse “has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding,” or when the spouse is “a party to the proceeding, or an officer, director, or trustee of a party,” is “acting as a lawyer in the proceeding,” or is “likely to be a material witness in the proceeding.”
To be sure, section 455(a) also includes a general provision that a justice (or judge) “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” But section 455(b)’s narrow rules regarding spouses would seem to cut against expansively applying this general provision to spousal activity.
That’s certainly the conclusion that all the signatory justices—including John Paul Stevens and Ruth Bader Ginsburg—drew in their joint Statement of Recusal Policy in 1993. That statement addresses spouses (as well as “children or other relatives”) who are lawyers. The justices note that section 455(b)(5)(ii) does not require recusal when the law firm with which a spouse is affiliated is acting as legal counsel in the proceeding but the spouse has not participated (or is no longer participating) in the representation. Nor, they conclude, should section 455(a) be construed to “automatically” apply in such a situation, for such a rule “would render the limitation of §455(b)(5)(ii) to personal work, and to present representation, meaningless.” (Emphasis in original.)
3. Although you wouldn’t know it from the Politico article, Justice Ginsburg’s husband Martin Ginsburg was affiliated with the law firm of Fried, Frank, Harris, Shriver & Jacobson throughout her tenure on the Court until his retirement in February 2009. Yet (as Mark Paoletta observes in his Wall Street Journal essay on “The Hypocrisy of Supreme Court Ethics Journalism”) Justice Ginsburg routinely participated—and properly so—in cases in which Fried Frank lawyers were counsel for parties or amici.
In KSR International v. Teleflex Inc. (2007), Fried Frank lawyers represented KSR International, and a Fried Frank lawyer made the oral argument on KSR’s behalf. A quick check shows that Fried Frank lawyers filed amicus briefs in various cases including Hamdi v. Rumsfeld (2003), Sprint/United Management Co. v. Mendelsohn (2007), and Graham County Soil & Water Conservation District v. United States (2009) (brief filed October 8, 2008).
Justice Ginsburg even participated in the decision to deny certiorari in 2003 in a case in which Fried Frank was the actual defendant. I am aware of no evidence that she ever recused from a case for the much lesser reason that the matter involved a party that was a client of Fried Frank (or of her husband specifically) in a separate matter.
4. Politico contends that Jane Roberts’s work as a legal recruiter is aided by the fact that she is married to the Chief Justice. That is no doubt true. But it would surely also be true of nearly any other job that Jane Roberts, a former partner in a large law firm, would take in the legal profession.
In any event, it 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” 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?
More broadly, justices routinely decide cases argued by their friends, former colleagues, and perceived political allies or opponents. If the standard for recusal under section 455(a) were so easily met, then justices would be recusing routinely.
5. Politico complains that Justice Barrett “not only withholds her husband’s clients, but redacted the name of SouthBank Legal [the law firm in which Jesse Barrett is a partner] itself in her most recent disclosure.” But Barrett didn’t “withhold[] her husband’s clients.” The financial-disclosure form did not call for her to disclose them. And it didn’t do so for the good reason that Jesse Barrett’s (or SouthBank Legal’s) representation of a client on a matter different from one that might come before the Court would itself provide no basis for Justice Barrett to recuse. (Per Mark Paoletta’s piece, “SouthBank Legal doesn’t have a Supreme Court practice and has never represented clients before the court.”)
Politico’s complaint that Barrett redacted the name of SouthBank Legal is especially strange. The careful reader will learn that the Administrative Office of the U.S. Courts evidently granted Barrett’s request for the redaction for security reasons. It’s true, as Politico suggests, that this redaction may provide little security since it was easy to discover, apart from Politico’s disclosure, where Jesse Barrett worked. But that fact likewise means that the redaction did not conceivably deprive the public of any information.
6. But why not just require that a justice provide sweeping disclosure of a spouse’s clients? After all, one can concoct farfetched hypotheticals in which the disclosed information might make a plausible or even compelling case for a justice’s recusal.
The short answer is that disclosure has costs as well as benefits. Law firms and legal recruiters have a proprietary interest in keeping their client lists confidential—especially for those clients that want confidentiality. A disclosure requirement could also invite gaming behavior by prospective clients in order to put pressure on a particular justice to recuse: a client who, say, did not want Justice Barrett on his case might retain Jesse Barrett on a separate matter. (The justices’ 1993 statement likewise warns against an approach in which “opportunities would be multiplied for ‘strategizing’ recusals.”) What’s more, a sweeping disclosure requirement would surely generate concocted and unjust gotchas from partisans.