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Judicial Leaks: U.S. Court of Appeals Upset over Publication of Draft Opinions

Magazine article Editor & Publisher

Judicial Leaks: U.S. Court of Appeals Upset over Publication of Draft Opinions

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U.S. Court of Appeals upset over publication of draft opinions

The latest trend in Washington, D.C., seems to be calling for an investigation every time there is a leak to the media.

The leak in question this time was of draft opinions from the U.S. Court of Appeals written by then-Judge Clarence Thomas, published in the weekly Legal Times newspaper last September.

The decision in Lamprecht v. FCC found that a Federal Communications Commission policy giving preference to women then granting broadcast licenses discriminated against men and was thus unconstitutional.

The Legal Times story broke in the middle of Thomas' U.S. Supreme Court confirmation hearings. The newspaper quoted sources who said that release of the decision was being delayed until the hearing were over because the ruling might have hurt Thomas' confirmation.

In this concurring opinion Feb. 19, Judge James Buckley noted, "This litigation deals with a sensitive subject, and it is not surprising that it should have aroused some passions. Unfortunately, the case has also proven the occasion for a most serious breach of trust. . . .

"The seriousness of this violation cannot be overstated," Judge Buckley wrote, in part. "Each member of this panel has been aggrieved by it, as have the parties who brought this case to us for adjudication. Moreover, because one or more of their number has been guilty of a willful breach of trust, this incident must cast a shadow over the dozen or more able young law clerks who had become privy to the preliminary drafts. I say |willful' because the information in the published reports was too detailed to have been the product of investment disclosures.

"We cannot, of course, repair the damage that may already have been done to one or more of the parties as a result of this premature disclosure. But we can and must take steps not only to ensure against a repetition in the future, but to demonstrate the seriousness with which we take the violation. I believe the appropriate measure is for this court to initiate a formal investigation in an effort to identify the source or sources of this disclosure, and I urge my colleagues to do so," he judge declared.

"The hemorrhaging of confidential information has become endemic in the legislative and executive branches of our government, with untold cost to their ability to function. It is essential that we prevent this disease from invading the judiciary, as this would inevitably undermine the public confidence that is one of the major strengths of our legal system," Judge Buckley wrote.

Five of Buckley's colleagues agreed with his call for an investigation. They were U.S. Circuit Court Judges Laurence H. Silberman, Stephen F. Williams, Douglas H. Ginsburg, David B. Sentelle, and Karen LeCraft Henderson.

Chief Judge Abner J. Mikva, however, in a statement released specifically in response to Judge Buckley's call for an investigation, indicated that he would not support such an inquiry.

"I agree with Judge Buckley that those who divulged information about our deliberations in this case committed a most serious breach of trust," Judge Mikva wrote, in part. "I also agree with him that the disclosures injured each member of this panel, the parties in this case, and all of the many former law clerks who knew the contents of the preliminary drafts. …

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