Unless Challenged, Judges Call Own Shots on Recusal

Judges at the U.S. District Court for Eastern Arkansas in Little Rock are pretty much on their own in determining whether they have a potential conflict of interest that should disqualify them from hearing a case.

Though the judges preside over hundreds of cases each year, no centralized system filters case assignments for improper relationships at the national or local level.

District judges interviewed recently said they have their own individual methods for avoiding conflicts, most of which relied on office staff and personal financial representatives. It’s up to the litigants to examine disclosure reports for possible judicial conflicts, financial or otherwise, in their cases.

Public disclosure of financial holdings by federal judges is, by design, a creaky, inexact matter, further insulating the process from scrutiny.

That said, no overt conflicts of interest surfaced in a recent Arkansas Business examination of cases heard last year by the seven district judges assigned to the Little Rock district court. However, inconsistency and uncertainty characterized the individual judges’ stated understanding of and compliance with disclosure and recusal requirements.

Points of Agreement

The four judges interviewed for this report all agreed that a judge is automatically disqualified from hearing a case involving a party in which the judge has a financial interest, answering in an almost identical fashion.

“If a judge owns any share of stock in any corporation, then you’re automatically disqualified from taking a case involving that corporation,” said Judge James M. Moody.

“If we own one share of stock in a company, we’re automatically disqualified from that case,” Judge William R. Wilson said.

But the manner in which this seemingly simple rule is observed is anything but unanimous.

“I make a complete list of my stock holdings for my law clerk,” said Judge G. Thomas Eisele, who was appointed to the Little Rock bench by President Richard M. Nixon in 1970. “Hopefully they’ll catch it when they file, [but] sometimes the parties’ names do not reflect the entire business entity.”

Cases are assigned to judges by the office of Clerk of Court James W. McCormack through a random electronic process.

“The system consists of an electronic deck of cards for each of the 32 case categories,” the court instructions state. “Each card in the deck represents a judge.”

But the individual judges still have to devise their own methods of screening the assignments. Moody also relies on his office but performs his own double check.

“My secretary keeps a list of all of my stocks,” he said. “I review each docket as it comes in and try to determine if I’ve got a conflict.”

Chief Judge Susan Webber Wright, who reported the most separate holdings among the Little Rock judges, brings her financial advisers into the process.

“I send out, every month, to the stock brokers, a list of my pending cases so the brokers won’t invest in any companies that are before me,” she said. Wright’s list of investments, which stretched for 513 lines on the 2000 financial disclosure report, has ballooned recently due to several family inheritances and her husband’s retirement, she said.

The Little Rock system is typical of the federal courts, said Professor Gregory Ogden of Pepperdine University in Malibu, Calif.

“I’m not aware of any system that would be centralized,” Ogden said. “[Judges] all have individual profiles. It would be complex to set up a system.”

Letting it All Hang Out

Though agreement exists on the importance of avoiding the appearance of partiality, opinions vary among the Little Rock judges on the extent to which their personal finances should be publicly known.

“Let it all hang out,” Wilson said, professing to regret only that the reports would reveal him to be “a poor man.”

Moody, an appointee of President Bill Clinton like Wilson, was less enthusiastic.

“I think it needs to be available to the parties, [but] there are some security concerns,” he said. “It’s information that someone who wanted to intimidate or harm a judge might use.”

Moody’s concern echoed that of the Financial Disclosure Committee of the Judicial Conference of the United States, which refused a news organization’s 1999 request for all 1,600 federal judge and magistrate disclosure reports, citing security issues.

The Chief Justice of the U.S. Supreme Court, William H. Rehnquist, explained the conference’s position at a meeting of the American Law Institute.

“Simply put, by placing all judges’ … reports on the Internet, there would no longer be a means to filter information on those reports that could endanger the individual judge,” he said. Three U.S. district judges have been killed “in recent years,” Rehnquist said, apparently in connection with their conduct of individual cases.

The disclosure reports exclude most personal and family information, and public copies are further redacted to eliminate remaining references.

Uncharted Territory

The judges scrupulously attempt to avoid presiding over cases involving parties in which they have invested, but none of the four judges interviewed said they had passed up cases concerning a major competitor to one of their investments. Presumably the success or failure of some corporations in a large court case could affect their ability to challenge competitors.

While Moody said he saw no problem with such a case, Eisele cited the federal government’s prosecution of Microsoft Corp. for anticompetitive behavior, a case that could result in the breakup of the company.

“I’d clearly recuse in that case [if he owned stock in a Microsoft competitor],” Eisele said. “I could see that if the case had the potential to affect the competitive relationship,” recusal would be proper.