“Justices Urged to Provide More Access to Financial Disclosure”

See Mike Sacks, Justices Urged to Provide More Access to Financial Disclosures, The Blog of Legal Times, (June 3, 2015). I reprint the article in full because it is very important:

A group of transparency advocates and government watchdogs on Wednesday called for the U.S. Supreme Court to provide greater access to the justices’ financial disclosure forms, the latest of which are set to be released June 30.
The House Transparency Caucus hosted a briefing on financial transparency at the high court. Reps. Darrell Issa, R-California, and Mike Quigley, R-Illinois, led the event.
“Lifetime appointments, the lack of any accountability or recourse for self-dealing makes it essential that we truly understand what conflicts may exist in [the justices’] financial or, in fact, their personal lives,” Issa said. “They have the ultimate responsibility for determining the rules that they live by and that the lower courts will live by unless Congress intervenes.”
Quigley emphasized the responsibility that comes with the court’s wide impact on American governance. “Five people in robes can overturn a law that 435 members of the house, 100 senators and the president of the United States agree on. That’s extraordinary power,” he said.
“With the greatest respect to the justices, they seem to forget one simple thing. This is not their Supreme Court. They are not the supreme court. They happen to be, like I am, a temporary member. I am a temporary member of Congress, I am a custodian. And with that comes a responsibility that they must share to be as accountable as they possibly can to the American public,” Quigley said. Americans “have a right to know what [the justices’] situation is financially, who they’re obligated to, to at least the same level that the other branches of government address.”
The panelists laid out the nuts and bolts of what Supreme Court financial reporting looks like, and how they think it should be improved.
“Judicial filings are still living in the 20th century,” said Sheila Krumholz, the Center for Responsive Politics’ executive director. “You have to fill out a form and fax it to the administrative office, at which point they will either mail the results to you or you can set up an appointment to come by and physically pick them up. And, again, bring a check, because you have to pay 20 cents a page.”
Katie Townsend, the litigation director for the Reporters Committee for Freedom of the Press, said, “the Ethics in Government Act of 1978 does apply to the Supreme Court the same way that it applies to other branches of government.” She suggested that the judiciary can improve its compliance policies with online disclosure, reporting uniformity, and releasing the information before the court adjourns for the summer so journalists can provide fuller context for the big decisions that come down in June.
A Center for Public Integrity report last year on appeals court financial disclosure forms revealed “26 cases in which judges were ruling on cases in which they or their spouses owned stock, which is not allowed under the rules of the federal judiciary,” Kytja Weir, a project manager and reporter for the center, said on Wednesday. The investigation led to five of those cases being reopened and reheard with new judges. The NLJ reported on appellate judges’ travel and their connections to law firms and law schools in a special report last year.
The Supreme Court has made no moves to change its status quo and are “pretty jealous about protecting their prerogatives, and their independence, and their security,” said Noah Bookbinder, the executive director for Citizens for Responsibility and Ethics in Washington.
Bookbinder said there’s “some hope that these changes can be made by pressure rather than by legislation.”

I could not agree more that financial disclosure reports of the Justices, indeed all federal judges, should be made easily available such as by posting them on each court’s external web site. Indeed, I have long posted unredacted copies of my disclosure reports (and my recusal list) on our external web site. See here. Although dated, the instructions for filling out the reports as of 2010 can be found here.  The instructions for 2014 are not greatly different, although they do not seem to be publicly available. (Why does that not surprise me!)

It is complete pain in the ass for the public to get copies of these reports under the present circumstances. While the reports can be obtained through nongovernmental entities like Judicial Watch, those entities tend to be very slow about uploading the most recent reports.

There is no good reason for putting roadblocks in the paths of those who want to see our reports, and that includes the Justices most especially. If there are security concerns, the Justices can see to redactions much like what now happens when a disclosure report is requested and some security issue may be lurking. By the way, when you hear the words “judicial security” by those who oppose easier access to these reports, don’t take those words seriously.

While the disclosure reports paint a good overall picture, and are useful to a judge when thinking about recusal requirements, the present reporting requirements are not overly invasive. For example, I need not report credit card debit unless it reaches $10,000 or more. I need not report mortgage debt on my residence. Nor do I need to report my Thrift Savings account with the government. I don’t even have to report our three used cars, two of which are near and dear to my heart. Indeed, they are such fine machines that I blogged about them. See here and here.

So when you hear judges bitch about these reports, take those complaints with a grain of salt. That is particularly true since judges are allowed to hire accountants and other professionals to help them prepare the reports, and the government reimburses the judges for those expenses up to $1,000.

I now provide me last report below for context. (As noted, you can find some of my earlier reports on our external web site.) In fairness, I was the poorest district judge nominated by Bush 41 and that probably remains true today. So my report, unlike the average judge’s report, is quite simple. Nonetheless, this will give you some sense of what the report looks like and the scope of it.

 

RGK-FinDisc-2014_Page_1RGK-FinDisc-2014_Page_2

RGK-FinDisc-2014_Page_4

 

RGK-FinDisc-2014_Page_5

 

 

RGK-FinDisc-2014_Page_6

In short, the House is right to push this issue. Indeed, I hope it pushes damn hard.

RGK

11 responses

  1. You would probably be well advised to move your cash savings to a bank paying higher interest, as it appears you’re getting well under 1% (your form says under $1000 in interest on $100,000-$250,000 of savings).

    Ally bank offers the best rates at the moment I think, at 0.99% APY.

    Or is this sort of unsolicited advice why judges don’t want to make these disclosures easily accessed?

  2. Either buy some BRK or get ex-cop lawyer to manage your portfolio and get a smooth 6% annual return.

    Seriously, you, Warren and Charlie are simpatico. And Charlie’s grandfather was a federal judge in Lincoln.

  3. Peter,

    As your last question, I really don’t know the answer. I speculate that the reluctance flows from the view held by many judges that they are entitled to their privacy. There are also those who also really worry about security. None of these views are convincing to me. But, on this issue, like many others, I am very much a class of one.

    All the best.

    RGK

  4. Anon.,

    Of course, you are correct to say that I should employ a money manger. It is also correct to say that I truly don’t care about money.

    So long as we have enough to live comfortably, and that is surely the case now that kids are through college, I am perfectly content with the status quo. You might say, I am just as content as a pig in slop.

    Joan is protected (1) by a term life insurance policy (essentially six time my salary) purchased through the government at a relatively low fixed cost, and (b) by a single life annuity through the government that will pay her a percentage of my salary each year after I kick the bucket. The rest is gravy.

    When both Joan and I are gone, we have no desire to leave our kids a pile of money. They will get a little something (as will two charities), but it won’t put them on easy street. Life has required that Joan and I eat lard sandwhiches for lunch, and we insist that our kids have the same experience.

    In short, I will continue to be a financial dolt. It is easier that way.

    All the best.

    RGK

  5. Once again, our friends in Washington prove that the opposite of progress is Congress. Between this and the Inspector General idea, it is like rearranging deck chairs on the Titanic. We had criminal laws in place to stop what Clarence Thomas did on his disclosure forms, but he did it anyway. Rules don’t matter if there is no penalty for violating them, and that is the essence of the problem.

    The problem isn’t judicial transparency. Judges are re-writing the Constitution in their image, and they are open and transparent about it. Bush v. Gore is, as Justice Kagan said, “only the tip of the iceberg.” Our system depends on the integrity of judges, which is, sadly, in astonishingly short supply. (Don’t shoot the messenger.)

    The Constitution already contains all the tools necessary to control “America’s FIFA.” If Congress created a separate court system for enforcing the Good Behavior Clause, with jury trials administered by veteran trial attorneys chosen at random (thereby keeping judges out of the process), the Framers’ purpose in conditioning Article III appointments upon good behavior would have substance. Clarence Thomas would be wearing pinstripes for his financial disclosure frauds, and Scalia would have been shown the door for his conflicts of interest. Lower court judges who can’t be bothered with following precedent would be shown the door, as well. It would mean the end of five hundred federal judges’ careers, but that probably wouldn’t be a bad thing.

    This camel might be a nasty beast, but in this lawless desert, we need one. The judiciary must be saved, if not a lot of judges.

  6. Cardozo,

    I think you are showing your stripes all too much. Without defending Thomas or casting aspersions against any judges in particular, there are three quick points I’d like to make:

    (1) Congress, that is, the bulk of its membership, are themselves perpetrators of shady, if not unethical financial disclosures. To expect them to impose rules on others that would be both non-burdensome and fair is foolhardy.

    (2) To respond to the Judge — consider whether detailed disclosures in today’s media age would lead to constant and bitter assertions of bias purely based on minimal or even moderate investments with a tangentially related party in a case. It would be very difficult for that judge to sit idly back — a la Salon article on Fuller and your retort — and even more difficult to constantly substitute judges in for the most petty financial interests being implicated. Not defending the system in place now, just thinking out loud.

    (3) I still believe that 90% (or more, its just a round number) of judges are perfectly ethical, have absolutely no financial stake that they would favor over the parties before them, and to engage in attacks on particular judges based on how the media has portrayed particular disclosures or conflicts is demonstrating the issue I see in #2 — Judge how would you propose to solve it?

    This is Anon that is a former law clerk for a federal appellate judge….

  7. Oh — and my condolences as to your financial disclosures. It is proof positive that public service was never intended to be, and when ethically done — as you have — never results in vast wealth — many kudos and thanks for all your hard work over the decades. It shows in the most important ways. Anon again.

  8. This could really be so much easier and what I wouldn’t pay to see how some would depict their “conflicts of interest”(mountain range, forest, ocean…?) on the map. It could get pretty creative I bet.

    Give them all some crayons and don’t forget to take some photos of their tattoos and birthmarks just in case.

  9. We have the best Congress money can buy. But that isn’t the issue.

    The real sins of the judiciary involve falsification of facts, open misrepresentation of and even blatantly ignoring precedent, issuing comically irrational opinions, burying their myriad sins in unpublished opinions, and not even reading the opinions they deliver. Financial conflicts only account for a small fraction of what is wrong with our federal courts, which is why this will solve exactly nothing.

    I believe that judges are honest when it serves their purposes, but dishonest when it honesty won’t get them to where they want to go. Even Russian judges get routine cases right.

  10. Anon.,

    I agree with almost everything you have written. I also agree that, at least for a while, the disclosure of financial disclosure reports by judges could cause a flurry of florid articles of a partisan bent. But financial disclosure reports are already available on Judicial Watch, although they are somewhat dated. The world has not fallen in because Judicial Watch has published these reports. The same thing would be true if the judges were to make these reports available themselves in an easily accessible way. If nothing else, it would make life for federal practitioners when trying to determine whether a particular judge has a disqualifying financial interest in the lawyer’s case. More importantly, the salutory symbolism shown by such disclosures by the judges themselves is likely to outweigh what few problems disclosure might cause.

    In sum, you are right that there are costs to transparency, but I believe those costs, for this issue, are “inexpensive.” All the best.

    RGK

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