The Many Lyin’ Federal Judges Who Failed to Recuse Despite Conflicts Finally Being Questioned by Congress (2021)

“The Breyer Report” Has Been Dismissed by Federal Judges Since it’s Inception

IMPLEMENTATION OF THE JUDICIAL CONDUCT AND DISABILITY ACT OF 1980,  A REPORT TO THE CHIEF JUSTICE, CHAIRED BY US SUPREME COURT JUSTICE STEPHEN BREYER (2006)

(See; https://2dobermans.com/woof/4d )

OCT 14 , 2021

October 14, 2021

The Honorable John G. Roberts, Jr.
Chief Justice
Supreme Court of the United States
1 First Street NE
Washington, DC 20543

Dear Mr. Chief Justice:

We write seeking information regarding an alarming report that over 130 federal judges have violated federal law and the Code of Conduct for U.S. Judges by “overseeing court cases involving companies in which they or their family owned [individual] stock.”¹

These actions raise questions about the judgment and integrity of these individuals and will justifiably reduce public confidence in the justice system.

Likewise, they raise questions about whether you have done enough in your role as the presiding officer of the Judicial Conference of the United States to establish and enforce ethics rules and uphold the integrity of the federal judiciary.

The scope of the ethics violations by dozens of federal judges—as reported by the Wall Street Journal²—is stunning.

Judges must “avoid impropriety and the appearance of impropriety in all activities.”³ Both 28 U.S.C. § 455 and Canon 3 of the Code of Conduct require that judges disqualify themselves from proceedings when the judge, their spouses, or their minor children have a “financial interest in … a party to the proceeding … , however small.”⁴

But the Journal revealed that 131 federal judges—appointed by presidents spanning from Lyndon Johnson to Donald Trump and involved in hundreds of cases across the country—failed to properly recuse themselves in violation of these provisions between 2010 and 2018.⁵

These conflicts of interest have affected hundreds of cases and the integrity of the justice system.

Already, “56 of the judges have directed court clerks to notify parties in 329 lawsuits that they should have recused themselves,” potentially leading to new assignments of judges and upending rulings.⁶

This = Congress Has to Fix. @maziehirono @SenJohnHoeven@SenHydeSmith @JimInhofe@SenRonJohnson @timkaine@SenMarkKelly @SenJohnKennedy@SenAngusKing @SenAmyKlobuchar@SenatorLankford @SenatorLeahy@SenMikeLee @SenatorLujan@SenLummis @Sen_JoeManchin@SenMarkey @SenatorMarshall https://t.co/txsdKVxFAO

— LawsInTexas (@lawsintexasusa) October 12, 2021

Judges ruled for parties in which they had a financial interest in two-thirds of contested motions.⁷

Furthermore, current Supreme Court Justices have similarly failed to recuse themselves from cases in recent years when they have had financial interests in parties before the Court, including through ownership of individual stock.⁸

It would be surprising if even a single judge or Justice was unaware of or ignored these important ethics protections; the fact that dozens did so represents a systemic failure that requires accountability.

These extensive ethics breaches are, at least in part, a direct result of the inadequate processes for judicial accountability. Although federal judges are required to file annual financial disclosures, the disclosures are not published online.⁹

Litigants may request disclosures, but judges are notified upon such requests, disincentivizing parties before the judge from acting.¹⁰

Even when judges recuse themselves, they frequently do not state their reasons for recusal.¹¹ And when litigants discover that a judge failed to properly disqualify, they often have little recourse; there are no civil or criminal penalties for violating the federal disqualification statute,¹² the Judicial Conference rarely imposes consequences on judges for misconduct,¹³ and the Code of Conduct does not even formally bind Supreme Court Justices.¹⁴

Our comprehensive ethics legislation—the Anti-Corruption & Public Integrity Act¹⁵— would close these gaps in our judicial ethics system, restoring public trust in the federal judiciary.

First, it would enhance transparency. In lieu of today’s cumbersome disclosure process, the Judicial Conference would be required to post judges’ financial disclosure reports online, at no cost, and no later than 90 days after filing.

Second, it would overhaul our recusal system. Instead of allowing judges to decide whether to recuse themselves from cases without comment, my legislation would empower Chief Judges to establish binding recusal processes and require written explanations for recusal decisions.

New post: In Light of All the Judicial Misconduct Now Publicly Documented, Will Judicial Immunity Be Repealed? https://t.co/zKGaLNLDFT

— LawsInTexas (@lawsintexasusa) October 8, 2021

Third, it would eliminate the possibility of the most troubling financial conflicts, including the ones described by the Journal.

For instance, federal judges—including Supreme Court Justices—would be forbidden from owning individual stocks, radically reducing the likelihood of conflicts of interest without the need for recusal proceedings.

Fourth, it would establish real consequences for violations of federal ethics laws, including civil penalties, prohibitory injunctions, and expedited disqualification and impeachment processes.

While Congress should act swiftly to pass these reforms, a decisive response from the judiciary is urgent and necessary. As the presiding officer of the Judicial Conference of the United States, you are responsible for the policies and administration of the federal courts.

To better understand your response to these reported widespread violations of federal law and the Code of Conduct, we ask that you answer the following questions by October 28, 2021:

1 How did 131 federal judges fail to disqualify themselves from cases with companies in which they or their family members owned individual stock between 2010 and 2018?

2 Are you, or any officials within the Judicial Conference of the United States, aware of any additional judges besides the 131 described by the Wall Street Journal that have presided over cases where they have conflicts of interest? If so, please provide a summary of how many have done so, the nature of their conflicts, and the number of affected

3 In response to the Journal’s report, the Administrative Office of the U.S. Courts said that it was “carefully reviewing the matter.”¹⁶

a. What have been the results of the investigation so far?

b. When do you expect the investigation to be complete?

c. Will you commit to publicly disclosing the findings and recommendations of the investigation once it is finished?

4 What specific actions has the Judicial Conference taken in response to the Journal’s investigation? What specific actions will the Judicial Conference commit to taking to prevent future violations?

5 Will you and your fellow Justices commit to disqualifying yourselves from cases as required by 28 S.C. § 455, including when you have a financial interest in a party to a proceeding?

6 Will you and your fellow Justices commit to formally adopting the Code of Conduct for U.S. Judges or an alternative binding code of conduct for the Supreme Court?

7 Do you believe that the Judicial Conference has sufficient existing authority and resources to ensure an impartial and ethical judiciary, including by performing thorough and timely conflicts checks?

a. If so, why did the described ethics violations happen nonetheless?

b. If not, what authority and resources could Congress provide to prevent the described ethics violations from happening again?

Thank you for your attention to this matter.

Sincerely,

Democratic lawmakers ask Justice Roberts for info on judicial conflict failures

OCT 14, 2021 | REPUBLISHED BY LIT: OCT 15, 2021

Two Democratic lawmakers on Thursday asked U.S. Supreme Court Chief Justice John Roberts for information on failures by judges to recuse themselves from cases in which they had financial conflicts as they questioned whether he had done enough to enforce ethics rules.

Senator Elizabeth Warren of Massachusetts and U.S. Representative Pramila Jayapal of Washington cited as a reason for their concerns a Wall Street Journal report that 131 judges failed to recuse themselves from cases involving companies in which they or their family members owned stock.

The lawmakers in a letter to Roberts, in his role as the presiding officer of the U.S. Judicial Conference, the judiciary’s policymaking body, said the “stunning” report “will justifiably reduce public confidence in the justice system.”

They cited other instances in which Supreme Court justices similarly did not recuse themselves from cases despite potential financial conflicts as further evidence of a “systemic failure that requires accountability.”

“These extensive ethics breaches are, at least in part, a direct result of the inadequate processes for judicial accountability,” the lawmakers said in the letter.

Roberts could not be immediately reached for comment.

The letter came a day after the director of the Administrative Office of the U.S. Courts in a memo said she was directing staff to evaluate ways to improve its conflict screening process following the report.

Democrats on the U.S. House of Representatives’ Judiciary Committee have previously announced they would hold hearings to investigate issues identified by the newspaper and re-introduce legislation that would reform judicial financial disclosures.

In Thursday’s letter, Warren and Jayapal noted financial disclosure reports currently are not publicly available online and argued parties are disincentivized from requesting copies because judges are notified about such requests.

Warren and Jayapal argued for legislation they back requiring public release of disclosure reports and barring judges from owning individual stocks.

But they also called on the judiciary to take steps on its own, saying a “a decisive response from the judiciary is urgent and necessary.”

They asked Roberts to provide information on why the 131 judges failed to disqualify themselves; whether the judiciary was aware of other judges who had similarly not recused themselves; and what actions the judiciary was taking in response to the report.

They also asked whether Roberts and his fellow justices would commit to disqualifying themselves from cases in which they had financial conflicts and adopt a code of conduct. Judicial conflict-of-interest rules do not apply to high court’s justices.

New post: If You’re Pro Se and You’ve Been Denied Access to CM/ECF Filing Permissions, Here’s Who to Contact https://t.co/k8xyDdZRlJ

— LawsInTexas (@lawsintexasusa) October 12, 2021

MEMORANDUM

To:                  All United States Judges

From:            Judge Roslynn R. Mauskopf

RE:                 ADDITIONAL GUIDANCE ON CONFLICT SCREENING

(IMPORTANT INFORMATION)

UNDATED | REPUBLISHED BY LIT: OCT 9, 2021

To follow up on my August 2, 2021 memorandum, I am writing to reiterate the importance of complying with the existing policy and requirements concerning financial interests and conflict screening. I ask that all judges review the guidance in this memorandum and ensure compliance with these requirements.

First, all judges have a duty under the Code of Conduct for United States Judges to keep informed about their personal and fiduciary financial interests and “make a

reasonable effort” to keep informed of the financial interests of the judge’s spouse or minor child. See Canon 3C(2). Because of this duty, judges may not rely on a blind trust, or a “managed account” controlled by a financial advisor, to avoid recusal obligations. See Advisory Opinion No. 110 (“Separately Managed” Accounts).

The Code of Conduct defines “financial interest” as “ownership of a legal or equitable interest, however small,” subject to certain exceptions such as “ownership in a mutual or common investment fund.”

Canon 3C(3)(c); see also Advisory Opinion No. 106 (Mutual or Common Investment Funds).

Second, judges are required by Judicial Conference policy to “develop a list identifying financial conflicts for use in conflict screening, [and] shall review and update the list at regular intervals….” Guide to Judiciary Policy, Vol. 2, Pt. C, § 410.20(c).

The Administrative Office (AO) has developed a checklist that judges may use when preparing or updating the list.

Because annual financial disclosure requirements contain minimum dollar thresholds for reporting, judges should not rely exclusively on those reports to check for conflicts. Up-to-date recusal lists are the most effective tool for conflict screening.

Third, the policy further provides that each judge “shall employ the list personally or with the assistance of court staff to participate in automated conflict screening.” Guide, Vol. 2, Pt. C, § 410.20(c). Importantly, the use of automated conflicted screening is in addition to each judge’s “personal review of cases for conflicts.” Id. The Judicial Conference has explained that “[u]se of automated conflict screening is intended to be an addition to, and not a replacement for, each judge’s personal review of matters for conflicts.” (JCUS-SEP 2006, p. 11).

Fourth, under the policy, courts are required to use “automated conflict screening to identify financial conflicts of interest for judicial officers, and to notify the judicial officer (or designee) when a financial conflict is identified, through the screening component of the CM/ECF system….”  Guide, Vol. 2, Pt. C, § 410.20(b).

Automated conflict screening must occur “on a regular schedule, including screening new matters as they are filed….” Id. Both the AO and clerk’s office staff are responsible for providing information, training, and assistance to facilitate automated conflict screening. Id. 410.20(a)-(b).

Circuit councils have the responsibility to “make all necessary and appropriate orders to implement the…mandatory conflict screening policy within the circuit.” Id. § 410.20(e)

The Code of Conduct requires a judge to disqualify himself or herself “in a proceeding in which the judge’s impartiality might reasonably be questioned, including…[when] the judge knows that the judge, individually or as a fiduciary, or the judge’s spouse or minor child residing in the judge’s household, has a financial interest…in a party to the proceeding….” Canon 3C(1)(c).

A “proceeding” includes pretrial as well as other stages of litigation. Canon 3C(3)(d).

This Canon applies regardless of the substance of the judge’s actual involvement in the proceeding.

I have directed Judicial Conference committee staff to review the judiciary’s conflict screening process and to submit any recommendations on ways to clarify or improve this process to the committees of jurisdiction at their next meetings.  The AO will also be offering training for judges and court staff on conflict screening.

Finally, additional ethics guidance from the Committee on Codes of Conduct is contained in the Ethics Deskbook for United States Judges. The Committee’s published advisory opinions and other ethics resources are located on the JNet.

If you have any questions about these requirements or would like to request a confidential advisory opinion, please contact your circuit representative on the Committee on Codes of Conduct. You may also request ethics guidance by sending questions by email to ethics@ao.uscourts.gov.

cc:
Circuit Executives
District Court Executives
Clerks, United States Courts

Post Edited: Intervenors Submit Second Motion to Disqualify Judge Jill Pryor, Court of Appeals for the Eleventh https://t.co/u2XQk4mpCP

— LawsInTexas (@lawsintexasusa) October 15, 2021

QUIGLEY, NADLER, AND JOHNSON INTRODUCE LEGISLATION TO INCREASE JUDICIAL TRANSPARENCY

MAR 2, 2020 | REPUBLISHED BY LIT: OCT 15, 2021

U.S. Representative Mike Quigley (IL-05), House Judiciary Chairman Jerry Nadler (NY-10) and Representative Hank Johnson (GA-04) introduced the 21st Century Courts Act, a robust legislative plan to increase transparency in the federal court system.

This legislation aims to dramatically enhance the accountability, accessibility, and transparency of the federal judiciary to improve public trust in our system.

“Faith in our democracy and in our governmental institutions can only be strengthened by increased transparency and accountability from every branch of government. That is why I was a co-founder of the Transparency Caucus and why I have championed increased transparency from federal courts throughout my time in Congress,” said Quigley.

“That means that our nation’s highest court must adopt an ethics code and federal courts around the country must make their records more accessible to the public. Given the historic flaws of our judicial system, we must take steps to ensure that public trust is not eroded any further.”

“Transparency and ethics are vital to the integrity of the judiciary, and they are vital to maintaining the public’s trust in our courts, particularly as attacks on judicial independence and the rule of law have become more common,” said Chairman Nadler.

“This bill reinforces the judiciary’s commitment to ethical conduct and empowers the public to learn about the important work of our federal courts.”

The 21st Century Courts Act takes several steps to dramatically reform federal courts, including:

Requiring the United States Supreme Court to develop an ethics code for Justices;
Requiring public disclosure of all recusal decisions;

Modernizing Judge and Justice financial disclosures by requiring they be shared online;

Creating livestreaming and audio archive requirements for federal appellate and Supreme Court proceedings;

Modernizing the judiciary’s case management and electronic filing systems; and
Enhancing public access to court decisions and proceedings by making court records freely accessible to the public.

“Unlike all other federal judges, Supreme Court Justices are not bound by a code of ethics. The Supreme Court must create common-sense ethical standards to ensure public trust in this institution,” said Johnson.

“When court records are only accessible to those who can afford to access them, we are excluding many Americans from the judicial system.

These resources cannot just be reserved for the rich – Congress must make court proceedings available and accessible to everyone,” said Congressman Johnson.

The 21st Century Courts Act has garnered wide support from advocates for judicial reform, including the Project on Government Oversight and Fix the Court.

Listen to the Banjo playin’ the same ole tune we’ve been bangin’ on about –

Texas Federal Judges are Corrupt as Hell…

We saw this in @DeutscheBankAG v Burke in 2018 with Judge W. Eugene Davis shareholding where he sat on the panel and again in 2021.

It’s a Void Judgment. pic.twitter.com/70aWuZW3xo

— LawsInTexas (@lawsintexasusa) September 30, 2021

“For decades now it has been apparent that the federal judiciary operates with too much opacity and secrecy,” said Dylan Hedtler-Gaudette, Policy Analyst with the Project On Government Oversight.

“The 21st Century Courts Act will provide a long-overdue jolt of accountability and transparency to the federal courts by implementing a range of common sense reforms, including directing the Supreme Court to write an ethics code for itself, modernizing financial disclosures, providing insight into refusal patterns by requiring that judges explain their recusal decision, and enhancing public access to the judiciary by providing live audio streaming of court proceedings and increasing the public’s ability to access court records.

Representative Johnson, Quigley, and Nadler should be commended for leading the way on this transformational legislation.”

Fix the Court executive director Gabe Roth said, “An independent judiciary requires the public’s confidence in the impartiality of judges and justices.

Ensuring that the Supreme Court abides by a code of conduct, that every level of the judiciary better accounts for conflicts of interest and that all Americans have unfettered access to court documents – as this bill calls for – would go a long way toward building that confidence.

The bill further recognizes that most Americans are unable to take off work and travel to a courthouse to experience appellate arguments in person and so provides for critical real-time broadcast access to these proceedings.

I am grateful to Reps. Johnson, Quigley, and Nadler for demonstrating such a strong commitment to improving transparency and accountability in our federal courts.”

Quigley has long championed increased transparency from federal courts, in particular, he has called for allowing cameras in Supreme Court and federal court proceedings. Earlier this year, Quigley worked with Nadler and Representatives Gerry Connolly (D-VA) and Steve Chabot (R-OH) to introduce the Eyes on the Courts Act to require cameras be permitted in the Supreme Court and all federal appellate courts.