A few weeks ago, we got a crash course in recusals and unrecusals, when Supreme Court Justice Samuel Alito sold stocks and "unrecused" from two cases being before the high court.
While it's common sense that Federal judges would be required to self-recuse if their financial holdings lead to a conflict of interest, the unrecusal tax break, for when judges sell stock to remove a conflict, was a fun surprise. And as you might expect, courts have adopted conflict screening systems to ensure that these mandated recusals actually happen.
Even with a system in place, however, a few conflicts were overlooked.
The Center for Public Integrity reviewed the three most recent years of financial disclosure reports filed by federal judges on the appellate court level. Out of 255 judges who filed reports, over three years, and thirteen circuits, the Center located 24 conflicts involving stock ownership, as well as 2 instances where financial ties to a law firm created a conflict, one of which was from the Ninth Circuit. There were twenty borderline cases that didn't clearly mandate a recusal.
It's not a disturbingly high error rate, considering the massive volume of cases that go through our appellate system.
Four judges, four conflicts, each with a letter explaining the mistake.
The letters notify the parties of the conflict, and invite them to seek relief if they think any is warranted. A court, without the conflicted judge, will evaluate the request.
Judge Jay Bybee was one of the rare lawyer-related conflicts. While on the bench, he was represented, gratis, by Davis, Polk & Wardwell for his pre-bench work, when he authored the notorious torture memos (approving waterboarding). He was supposed to be recused from all cases involving the firm, but one pro bono matter slipped through: Salazar Castellano v. Holder. (Letter and opinion.) The opinion was an unpublished unanimous memorandum opinion.
Judge Andrew Kleinfeld also acknowledged a conflict, because his wife owned stock in Verizon when he heard Maloney v. Verizon Internet Services. (Letter and opinion.) Again, it was an unpublished unanimous memorandum opinion.
Judge Arthur Alarcon sat in on a slightly more important case, Farina v. Cellco, a published unanimous opinion in the Third Circuit. He should have self-recused due to holding stock in Nokia. (Letter and opinion.)
And then we get to the complicated case. Judge Sandra Ikuta participated in an en banc hearing in Sarei v. Rio Tinto, where she dissented. The Supreme Court reversed and remanded, where she again participated, this time in a unanimous affirmation of the district court. (Letter, en banc opinion, Supreme Court opinion, and second en banc opinion.)
What will be the impact of the conflicts? It's unlikely that any of these cases will be reversed, as most were unanimous unpublished decisions. An ethics opinion, attached to each letter, notes that even if one judge was conflicted, that conflict isn't imputed onto the remaining judges. None of the cases were close enough that a swapped disinterested vote would've changed the outcome.
And a Grey Area
Judge Kim Wardlaw, unlike the other judges' clear conflicts, fell into a grey area. According to the Center, Wardlaw held stocks that otherwise would've presented a conflict, but sold the stock before the cases were finalized, in one case, a day after the decision was filed. (The ruling went against the company.)
- Michelle Friedland Confirmed to 9th Circuit Bench, Full Complement Achieved (FindLaw's Ninth Circuit Blog)
- Updates: Friedland Confirmation Delayed, Smithkline Briefs Submitted (FindLaw's Ninth Circuit Blog)
- (Judge) John Owens Confirmed for 9th Circuit Bench (FindLaw's Ninth Circuit Blog)