The 2021 Year-End Report on the Federal Judiciary, written by Chief Justice John G. Roberts outlined several key issues. The New York Analysis of Policy and Goverment reproduces the key part of the document here.
The first is a matter of financial disclosure and recusal obligations. Beginning this past September, the Wall Street Journal published a series of articles stating that, between 2010 and 2018, 131 federal judges participated in a total of 685 matters involving companies in which they or their families owned shares of stock. That was inconsistent with a federal ethics stat ute, 28 U.S.C. §455, which requires that a judge recuse in any matter in which the judge knows of a personal financial interest, no matter how small. Let me be crystal clear: the Judiciary takes this matter seriously. We expect judges to adhere to the highest standards, and those judges violated an ethics rule. But I do want to put these lapses in context.
According to the Wall Street Journal’s own data, the 685 instances identified amount to a very small fraction—less than three hundredths of one percent—of the 2.5 million civil cases filed in the district courts in the nine years included in the study. That’s a 99.97% compliance rate. For most of the judges involved (a total of 83 of the 131), the Journal reported one or two lapses over the nine-year period. Those sorts of isolated violations likely entailed unintentional oversights in which the judge’s conflict-checking procedures failed to reveal the financial conflict. But for those judges who had multiple violations, or professed ignorance of the ethics rule, there is a more serious problem of inadequate ethics training. New judges are schooled on the ethical duties they assume as part of their initial judicial training curriculum. A small number apparently did not take sufficient note and are now learning the lesson. Significantly, for all the conflicts identified, the Journal did not report that any affected the judge’s consideration of a case or that the judge’s actions in any of those cases—often just routine docket management—actually financially benefited the judge.
Still, this context is not excuse. We are duty-bound to strive for 100% compliance be cause public trust is essential, not incidental, to our function. Individually, judges must be scrupulously attentive to both the letter and spirit of our rules, as most are. Collectively, our ethics training programs need to be more rigorous. That means more classtime, webinars, and consultations. But it also requires greater attention to promoting a culture of compliance, even when busy dockets keep judicial calendars full. Our systems of conflict checking should make the most of technology to help prevent the kinds of problems that can impair the public’s confidence in the independence of the courts. Com puters cannot be blamed for errors judges and their clerical staffs have made, but the information systems that help courts catch and pre vent conflicts are due for a refresh. They need o be refined to ensure that different ways of spelling or listing the same stock holding— such as by company name, subsidiary, or ticker symbol—are picked up by automated checks regardless of how they are identified by a litigant or judge. This refresh may require addi tional funding from Congress, but it will be money well spent.
The Administrative Office is already working with the Judicial Conference’s commit tees—including Codes of Conduct, Financial Disclosure, and Judicial Conduct and Disability—with jurisdiction to address these problems. Among the steps underway, the Administrative Office and committee staff have begun a review of the current case-management software to improve automated detection of potential conflicts. They have also begun to enhance the ethics training and refresher courses to en sure that judges are both aware of their obligations and know how to use the conflict checking tools effectively. The bottom line is that the Conference is taking the concerns seri ously and has committed itself to the careful labor of addressing them.
The second topic is the continuing concern over inappropriate behavior in the judicial workplace. In 2017, I directed the creation of the Federal Judiciary Workplace Conduct Working Group, consisting of judges and senior judicial administrators, to address allegations of serious misconduct within the judicial work place. In my 2018 Year-End Report, I summarized the Working Group’s findings and recommendations. Briefly stated, the Working Group recognized the seriousness of several high-pro file incidents, but found that inappropriate workplace conduct is not pervasive within the Judiciary. Nevertheless, new protections could help ensure that every court employee enjoys a workplace free from incivility and disrespect. The Working Group made more than 20 recommendations in three primary areas, proposing that the Judiciary: (1) revise its codes of con duct and other published guidance to delineate more clearly the principles of appropriate behavior; (2) strengthen and streamline its internal procedures for identifying and correcting mis conduct; and (3) expand its training programs to raise awareness of conduct issues. It also recommended that employees have multiple channels to raise their concerns, and endorsed prohibitions on any retaliation for calling out misconduct. The Judicial Conference adopted those recommendations in 2019, and the Working Group remains in place to continue to monitor the progress.
The Judicial Conference, with the assistance of the Administrative Office and the Working Group, will continue to oversee reform efforts to ensure they achieve the objective we all seek. I appreciate that Members of Congress have expressed ongoing concerns on this important matter, and the Judicial Conference and its committees remain fully engaged.
Over the past year, the Conference has tailored its model Employee Dispute Resolution Plan to Federal Public Defenders’ Offices. The Ad ministrative Office has begun expanding the staff of its Office of Judicial Integrity, and it has overseen the creation of a national network of resources—including a Director of Workplace Relations in every federal circuit—to support judicial employees and address complaints. These enhancements provide robust mechanisms for reporting and addressing instances of misconduct. They also provide additional ave nues for employees to express their views so that we can learn from all perspectives in striv ing for an exemplary workplace.
The third agenda topic I would like to high light is an arcane but important matter of judicial administration: judicial assignment and venue for patent cases in federal trial court. Senators from both sides of the aisle have ex pressed concern that case assignment proce dures allowing the party filing a case to select a division of a district court might, in effect, ena ble the plaintiff to select a particular judge to hear a case. Two important and sometimes competing values are at issue. First, the Judicial Conference has long supported the random assignment of cases and fostered the role of district judges as generalists capable of handling the full range of legal issues. But the Conference is also mindful that Congress has intentionally shaped the lower courts into districts and divisions codified by law so that litigants are served by federal judges tied to their com munities. Reconciling these values is important to public confidence in the courts, and I have asked the Director of the Administrative Office, who serves as Secretary of the Judicial Conference, to put the issue before the Conference. The Committee on Court Administration and Case Management is reviewing this matter and will report back to the full Conference. This is sue of judicial administration provides another good example of a matter that self-governing bodies of judges from the front lines are in the best position to study and solve—and to work in partnership with Congress in the event change in the law is necessary.
Photo: Chief Justice John Roberts (U.S. Supreme Court)