Ginsburg's ethical lapse may affect other justices

0 Comments | Insight on the News, August 18, 1997 | by John Berlau

The fallout from Ruth Bader Ginsburg's failure to recuse herself from cases involving companies her husband was invested in is leading to calls from Congress for increased accountability for high-court jurists.

Although the husband of Supreme Court Associate Justice Ruth Bader Ginsburg sold his stocks to avoid future conflict-of-interest problems for his wife, the justice's participation in 21 cases involving the companies Martin Ginsburg invested in still is raising ethical questions. In fact, the fallout may prompt congressional hearings about the accountability of Supreme Court justices.

After Insight revealed last month that Justice Ginsburg did not recuse herself from cases involving companies in which her husband was invested through his individual-retirement account [see "Ruth Bader Ginsburg Fails to Recuse Herself, July 28] -- a violation of the federal judicial statute that justices must disqualify themselves whenever they have a "legal or equitable interest, however small," in one of the parties before the court-Martin Ginsburg issued a statement saying that he was not aware his IRA "raised the concern Insight has highlighted." He reported that he had "promptly instructed Smith Barney to sell all stocks in the IRA account and to invest only in mutual funds and securities."

Yet the justice has remained silent and no one has explained why she ignored potential conflicts even after signing the financial-disclosure form listing the stocks her husband owned. Tom Morgan, a professor of law at George Washington University who specializes in judicial ethics, tells Insight that Ginsburg's apparent neglect might hurt her chances to be promoted to chief justice should William Rehnquist retire. "When someone shows such inattention to detail, you wonder about confirmation to higher office," Morgan says.

But, other then possibly losing a promotion, it appears Ruth Ginsburg will not face a reprimand because the federal judicial code carries no penalty for violations by Supreme Court justices. And it also looks like the court itself has no plans to institute internal reform -- seven keeping its current rules on ethics violations shrouded in secrecy Toni House, the court's public-information officer, tells Insight "there are procedures in place" to prevent conflicts of interest, but says, "I can't discuss what they are." She adds that "there's been no discussion about doing anything else" since Ginsburg's violations surfaced.

Members of Congress and observers in the legal community say that even if Ginsburg's 21 violations were errors, Supreme Court justices need to be accountable for their mistakes like everyone else. If ignorance of the law is no excuse for ordinary citizens, they say, then members of the Supreme Court should be held to the same, if not a higher, standard. "It's the business of federal judges to know the rules of law," says Mark Levin, president of Landmark Legal Foundation, a national public-interest watchdog group. "They expect it from lawyers who appear before them and the public should expect it from them."

Under the federal judicial code, individuals can file ethical complaints against federal and circuit-court judges, and a council of the judge's peers can levy penalties if they find the charges have merit. But these disciplinary provisions don't apply to the Supreme Court, whose justices only can be disciplined through impeachment.

Levin tells Insight that in light of the controversy surrounding Ginsburg, Congress needs to make justices accountable for not following the rules. "Based on what I've read, it appears there are potentially serious ethical questions relating to Justice Ginsburg's involvement in these cases," he says. "There needs to be a formal process established by Congress to examine possible ethical violations by Supreme Court justices in cases such as this."

House Judiciary subcommittee on Courts and Intellectual Property Chairman Howard Coble tells Insight he is strongly considering codification of reforms to make the judicial disciplinary procedures applicable in other federal courts apply to the Supreme Court as well. "They [justices] ought to be answerable to somebody," he says.

Georgia Republican Rep. Bob Barr, who serves on both the House Judiciary and the House Government Reform and Oversight committees, tabled a written request on July 24 that both committees look into the Ginsburg matter and hold hearings on the issues it raises. Barr asked, "In view of very serious allegations that Justice Ginsburg may have violated recusal procedures ... should restraints on judicial recusal be tightened and possibly a specific mechanism be put in place for discovering potential conflicts?"

Coble says that "there appears to be a double standard" for Supreme Court justices and members of Congress. Upon hearing about the Ginsburg controversy, he says, "My gut reaction was that if this had been a member of Congress in a similar situation, there would have been all sorts of turmoil and accusations. But she's just skated along and gotten a free ride."