Federal Judges Meet in Secret, As Usual

Federal Judges' Confab Revises Ethics Rules, Asks for More Judges
The New York Law Journal by Tony Mauro - March 19, 2009

WASHINGTON, D.C. - The Judicial Conference on Tuesday adopted revisions to the federal judiciary's code of conduct aimed at broadening and clarifying how judges should handle conflicts of interest and the "appearance of impropriety." The conference also agreed to ask Congress to create 63 new judgeships - 12 appeals court judges and 51 at the district court level. The number of appellate judges has remained at 179 since 1990, while case filings have increased by 42 percent. District judgeships have increased 4 percent, to 674 from 645, but filings have risen by 34 percent. As usual, the conference, which is the policy-making body for the federal judiciary, met behind closed doors at the U.S. Supreme Court, with Chief Justice John Roberts Jr. presiding. The revised ethics code, which takes effect July 1, defines for the first time the term "appearance of impropriety," which judges are commanded to avoid as much as actual impropriety. The definition: "An appearance of impropriety occurs when reasonable minds, with knowledge of all the relevant circumstances disclosed by a reasonable inquiry, would conclude that the judge's honesty, integrity, impartiality, temperament, or fitness to serve as a judge is impaired."

The conference decided to "clean things up" in the wording of the code, and to provide judges with clearer guidance, said Anthony Scirica, chief judge of the U.S. Court of Appeals for the Third Circuit and chair of the conference's executive committee. Judge Scirica briefed reporters afterward, stating that the new code also makes it clearer that the code covers "not just professional but personal conduct." He said the revisions also specify that judges may not tell court personnel to do something that would violate the code if judges did it themselves. The new code retains provisions for the disqualification but adds new language imposing an obligation on judges who learn of a possible code violation to take "appropriate action".  Another change: Judges are now specifically permitted to encourage lawyers to do pro bono work.

Judge Scirica said the changes Tuesday represent the conference's final action to implement the recommendations of the so-called Breyer Committee, chaired by Justice Stephen Breyer, which issued a report in 2006 on the judiciary's policies and procedures for handling misconduct complaints against judges (NYLJ, Sept. 20, 2006). Congress at the time was pressuring the judiciary to improve its ethics procedures. The revisions also reflect recent case law as well as changes made by the American Bar Association to its judicial code of ethics. The Judicial Conference does not set rules for the U.S. Supreme Court, but by tradition, the Court adheres to the Code of Conduct as a matter of policy. On the issue of creating judgeships, Judge Scirica said the conference "hopes the administration and Congress will move ahead on this." Senators Patrick Leahy, D-Vt., and Arlen Specter, R-Pa., both addressed the conference and indicated their support for more judgeships, Judge Scirica said.  The recommendations made by the conference would add five judges to the Ninth Circuit, two each to the Second and Third, and one each to the First, Sixth and Eighth.  Read the recommendation on additional judgeships. Two judges would be added in each of the Southern and Eastern Districts of New York and one in the Western District. No additions were recommended for the Northern District.  Some of the new positions would be permanent seats and some would be temporary - meaning that when the judge appointed retires or dies, it would not be refilled.

In a separate action, the conference also voted to make the existence of sealed cases more apparent in online dockets. Press and citizen groups have complained that some sealed cases simply vanish from the docket in many district courts, making it impossible to learn about them or challenge the sealing. The conference said even sealed cases should be listed with a docket number and a name, such as Sealed v. Sealed. Judge Scirica also was asked about the law passed by Congress last year barring judges from accepting honorary or free memberships valued at more than $50 to private clubs. The ABA Journal recently reported that the University Club in Washington, D.C., had devised a deeply discounted membership fee for judges that the club believed complies with the law, but ethics experts questioned it.  Judge Scirica said the issue was not discussed, but said the conference "has become aware" of efforts by clubs to find ways for judges to become members in spite of the law.  Several judges have asked the code of conduct committee for advice, Judge Scirica said.  "We're looking into it more systematically," he said.

Tony Mauro covers the U.S. Supreme Court for Incisive Media, the Law Journal's parent. He can be reached at Tony.Mauro@incisivemedia.com