Ruth Bader Ginsburg Fails to Recuse Herself

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In what appear to be violations of federal law and codes of judicial ethics, Justice Ginsburg has participated in more than 20 cases in which her husband owned stock in one of the litigating companies.

Supreme Court Justice Ruth Bader Ginsburg may have violated federal law, as well as professional codes of judicial ethics, by participating in more than 20 cases in which one of the litigants was a publicly traded corporation in which her husband owned stock.

Reviewing Ginsburg's financial-disclosure reports and cases in West's Supreme Court Reporter, Insight found that since 1995, Ginsburg apparently did not disqualify, or recuse, herself from cases that directly affected eight companies in her husband's rollover individual-retirement account, or IRA. Martin Ginsburg owned between $15,001 and $50,000 worth of shares in NYNEX, American Home Products, Exxon, General Electric, American International Group, Procter & Gamble and Johnson & Johnson -- and $15,000 or less in AT&T -- at the time his wife appears to have adjudicated cases that may have affected the value of his portfolio.

And even if that had no effect on the companies' stock-market performance, Ginsburg still may have violated the federal statute governing judicial procedure, which provides that "Any judge, justice or magistrate shall disqualify himself in any proceeding" if "he knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding" (28 U.S.C. [sections] 455). "Financial interest," according to the statute, "means ownership of a legal or equitable interest, however small." Both the American Bar Association's influential Model Code of Judicial Conduct, and the Judicial Conference's Code of Conduct for United States Judges (adopted by virtually all federal district and appeals courts) contain similar provisions and emphasize that judges must avoid all impropriety and appearance of impropriety.

"The statute is pretty clear," commented Steven Lubet, a Northwestern University law professor who specializes in judicial ethics, after Insight sent him lists of Martin Ginsburg's stock holdings and some of the cases involving those companies. "At least in some of these cases, it appears that Justice Ginsburg should have disqualified herself."

Ginsburg's secretary, Linda O'Donnell, told Insight that the justice had no time to comment because she was in conference and getting ready to teach abroad while the court is out of session.

Whether Justice Ginsburg violated the law may hinge on the amount of control Martin Ginsburg had over the investments in his IRA, which was a Smith Barney Custody Account. The federal statute says that justices do not have to recuse themselves from cases involving the securities of a mutual or common investment fund they may own "unless the judge participates in the management of the fund." Ellen Breslow, director of individual-retirement planning services at Smith Barney would not comment on Ginsburg's account specifically, but described custody accounts as self-directed IRAs in which "we take investment directions from the individual account owner or a designated money manager." Ginsburg lists no designated money manager on her financial-disclosure form.

University of Illinois law professor Ronald Rotunda, who has written a widely used casebook on legal and judicial ethics, says that a self-directed IRA would not be exempt from the recusal statute because "you own the stock and you have a financial interest" in the companies in the account.

It is unclear if Ginsburg's participation had any impact on the outcomes of the cases. Most involved procedural rulings in which the Supreme Court denied certiorari, or refused to hear the case, and let the appeals-court ruling below stand. Unlike full-blown decisions, most printed announcements about certiorari do not indicate how each of the justices voted. …