Presidents have to have blind trusts. According to CNN, nearly every serious presidential candidate, some governors, and a small handful of federal lawmakers have opted for blind trusts as well.
The investment devices serve a necessary purpose: decreasing the possibility of a conflict of interest.
After Justice Samuel Alto again recused himself from landmark cases last week, and after dozens of past recusals, as well as some questionable non-recusals, is it time to start asking about whether blind trusts should be required of judges and justices?
According to SCOTUSblog, the court granted eight cases on January 10th, including the much-anticipated Aereo and Limelight disputes.
Alito did not take part in considering Aereo's petition, nor did he take part in Limelight or POM Wonderful v. Coca-Cola. We can't be certain that the recusals in three out of eight of today's cases were the result of his stock portfolio, but if his past is any indication, that's a reasonable assumption.
As we noted last summer, Alito sat out of roughly six dozen cert denials, plus one actual pharmaceutical dispute, in the preceding year. His disclosures pointed to stocks, some bought, many inherited, as the reason for the recusals.
And again, we'll reiterate: it's not fair to blame a judge for properly recusing himself from cases when he inherited stock from his wife's late father. The recusals were the right move.
More interesting, however, were the non-recusals. In December 2012, he purchased stock in Comcast and Royal Dutch Shell, selling it that same month. Both companies had cases pending, with oral arguments before the purchase, and decisions handed down after the sale. Both companies were victorious.
If he was trying to pad his portfolio, he likely would've waited to sell the stock until after the favorable decisions were released. Still, it looks bad, and the "appearance of impropriety" is the standard that lower court judges are forced to live by.
There was one other incident as well. Alito admitted in 2011 that his clerks botched the conflict-checking that should've mandated his recusal in the "fleeting expletives" case of 2008, reports the ABA Journal. He owned about $2,000 worth of stock in ABC's parent company Walt Disney, Co., which he has since sold. ABC, obviously, was affected by the FCC's fleeting expletives policy.
We'd never suggest that Supreme Court justices or lower court judges abstain from intelligent financial planning, even when the planning involves dabbling in the stock market. But Alito is missing a lot of time at work due to his extra-judicial financial activity.
Recusals are the right move when there is a conflict, and investing in the stock market is almost inevitably going to lead to such conflicts. The solution seems obvious then: blind trusts.
Sure, blind trusts aren't always blind. Former presidential candidate Mitt Romney was criticized for having a "blind" trust that was run by a close friend, one that his campaign admitted would have to be altered to a stricter blind trust had be been elected, reports NPR. Whether a semi-blind trust or a fully-blind trust is advisable, and sufficient to keep Judge Alito on the bench is a matter for the non-transparent court to discuss internally.
But it would go a long way towards avoiding the "appearance of impropriety."