"The goal should be no justice should step aside because of financial interest," said Starr, president of Baylor University and a former judge on the U.S. Court of Appeals for the D.C. Circuit. "He or she should divest themselves as promptly as possible from whatever that interest might be that would prevent him or her from doing their job."
Starr was among the panelists today who came together for a discussion in Washington titled "Today's Supreme Court: Tradition v. Technology and Transparency." The Reporters Committee for Freedom of the Press hosted the event, at which The National Law Journal's Tony Mauro moderated.
Justices recuse for two reasons, Starr said: prior legal work and financial conflict. A justice’s earlier work for the government, or in private practice, Starr said, isn’t something that’s easily avoided. Justice Elena Kagan, for instance, a former U.S. solicitor general at the Department of Justice, has recused herself in a series of cases this term. Financial conflicts, Starr argued, can largely be avoided if a justice divests financial investments at the time of joining the bench.
"Part of the bargain is that you will so order financial affairs that you can conduct yourself as a justice," said Starr, who served on the D.C. Circuit from 1983 to 1989 before becoming the U.S. solicitor general.
Today’s panelists, who met at the National Press Club in Washington, included Ohio Supreme Court Chief Justice Maureen O'Connor, Hogan Lovells partner Neal Katyal, NBC News justice correspondent Pete Williams and Alan Morrison, a dean at George Washington University Law School.
O'Connor is serving on an American Bar Association subcommittee that’s working to find a recusal rule that would govern state and federal courts across the country. She said she's "hesitant with a one-size-fits-all rule." Like the Supreme Court, Ohio justices individually decide when to recuse in any particular case.
Katyal, formerly acting SG in Attorney General Eric Holder’s Justice Department, pointed out that Congress in the 1970s changed federal law regarding the disqualification of a federal judge, including justices. The old law held that a 'substantial" financial interest should cause a judge to recuse, Katyal said. Now, the law defines financial interest as "ownership of a legal equitable interest, however small."
"That seems to me to be problematic," Katyal said. "Big, sophisticated law firm and entities will fight to have a justice recused."
Justices don’t have to explain the reasons behind any recusal. Some critics, with a nod toward greater transparency, have called for the justices to at least provide even the most basic explanation for a recusal.
One enduring topic on Supreme Court transparency front: cameras. Today’s panelists largely agreed that cameras should be allowed in the high court. O'Connor said she hasn’t seen any distractions in the ten years the Ohio Supreme Court has permitted cameras. "There is no downside to having that kind of exposure to oral arguments," she said.
Starr argued that cameras would further open the court to the public and provide civic education. "The costs are modest to none and the benefits are legion and powerful," Starr said.
Katyal lamented the fact more people can’t witness oral argument in the high court. He predicted that a generational shift will ultimately bring cameras into the Supreme Court. "It is inevitable,” he said, “that cameras will be in the Supreme Court.”
Photo by The National Law Journal's Diego M. Radzinschi.