In the "Ralston Purina" case, Thomas showed no regard for his
ethical obligations as a judge and no respect for the statutory
mandate that he recuse himself. On both counts, Thomas is unfit to
sit on the Supreme Court of the United States.
and little ole bushie-tail regaled us with his belief that he had picked
the best qualified candidate for the job. is little bushie that stupid?
Monroe Freedman, the Howard Lichtenstein Distinguished Professor of Legal Ethics at Hofstra University Law School, testifies frequently as an expert witness on lawyer's ethics. "Cases and Controversies" appears monthly in "Legal Times", a newsweekly read by congresscritters and many others whose lives revolve around the "beltway". For subscription info write Legal Times, 1730 M Street NW, Suite 802, Washington, D.C. 20036
reprinted w/permission of "Legal Times" and the author
As my father once said of his illiberal friend Moe, if Moe had come to America before Moe's father got here, Moe's father would never have been allowed into the country. Similarly, if Thomas had been subject to the same rules that he would apply to others, we probably would have heard nothing about Thomas himself, and we also might have been spared his insensitive slurs of his sister and her need for welfare.
Another serious ground for doubting Thomas' fitness to sit on the Supreme Court is that just last year he wrote an opinion for the U.S. Court of Appeals for the D.C. Circuit in violation of a federal statute that required him to disqualify himself on ethical grounds.
Before 1974, the judicial recusal statute, 28 U.S.C. Section 455, used a subjective standard that required disqualification only if "in his opinion" a judge should not sit on a case. In addition, case law had developed a judicial "duty to sit" that tilted against recusal.
These standards ran against the grain of Supreme Court decisions holding that, as a matter of constitutional due process, judges not only must be unbiased but also must avoid even the appearance of bias. As the Court reiterated in a 1984 case, "justice must satisfy the appearance of justice."
In 1974, Congress amended section 455 to reflect this constitutional concern with the appearance of impartiality in the administration of justice. The new provision replaced the subjective standard of recusal with an objective one, eliminated the notion of a duty to sit, and broadened substantially the range of cases in which federal judges are required to disqualify themselves.
A good illustration of the sweep of Section 455(a) is the 1988 Supreme Court decision in "Liljeberg v. Health Services Acquisition Corp.," 108 S. Ct. 2194. The federal district judge who decided "Liljeberg" was also a trustee of Loyola University in Louisiana. Loyola was not a party in the case, but it did have a significant interest in the outcome. Although the judge at one time had been aware of Loyola's interest, he had forgotten about it and did not connect Loyola to the case when he heard and decided the matter.
Almost a year after judgment had been entered in a way that indirectly benefited Loyola, the losing party learned of the trial judge's relationship to Loyola and moved to vacate the decision and start the case over.
The Supreme Court agreed. "The problem," the Court held, "is that people who have not served on the bench are often all too willing to indulge suspicions and doubts concerning the integrity of judges." To discourage such suspicions and doubts, "[t]he very purpose of Section 455(a) is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible.
The congressional mandate of Section 455(a) that judges avoid "even the appearance of impropriety" was well-established in 1990 when D.C Circuit Judge Clarence Thomas sat in "Alpo Petfoods Inc. v Ralston Purina Co.," 913 F.2d 958.
In the "Ralston Purina" case, the non-party who had a significant interest in the outcome was Sen. John Danforth (R-Mo). Judge Thomas' debt to Danforth is considerable, beginning with Thomas' first job after graduation from law school in 1974 and continuing to this day.
Danforth, as Missouri's attorney general, hired Thomas out of law school as assistant attorney general. When Danforth went to the Senate in 1979, he brought Thomas with him as a legislative assistant. Danforth was then instrumental in moving Thomas up the career ladder, helping to get him appointed to the Reagan transition team, to the Department of Education, and to the top position at the Equal Employment Opportunity Commission.
At each stage, Danforth testified publicly and effusively in Thomas' favor and lobbied for him behind the scenes. This sponsorship included Thomas' appointment to the federal appeals court, when Danforth described Thomas in testimony as his "personal friend." And it is no secret that Danforth's role was crucial in gaining Thomas' nomination to the Supreme Court.
Danforth's connection to Ralston Purina is also a significant one. The company was founded by the Senator's grandfather, and members of the Danforth family remain major shareholders. The senator himself owns Ralston Purina stock worth more than $7.5 million. His brothers, William and Donald, are members of the company's board of directors and are also heavy holders of stock, and brother William is chancellor and a trustee of Washington University in St. Louis, which also has large holdings in Ralston Purina.
These facts regarding Thomas' relationship to Danforth and Danforth's relationship to Ralston Purina were set forth more than a month ago in a report by "Supreme Court Watch" (published by the Nation Institute), which was based on reporting in the "Columbia (Mo.) Daily Tribune" They have not been challenged.
The "Alpo v. Ralston Purina" case involved cross-charges of false advertising. After a two-month bench trial, U.S. District Judge Stanley Sporkin found both companies in the wrong, but found that Ralston Purina alone had acted willfully. Indeed, he found that the firm had "perpetuated a cruel hoax" on dog owners in its false claims that its dog food could cure a serious ailment. He therefore assessed a whooping $10.4 million penalty against Ralston Purina.
Only a few weeks after having been confirmed, Judge Clarence Thomas heard Ralston Purina's appeal--a case in which his patron's family firm was challenging not only a severe penalty but also a finding of deliberate dishonesty in its advertising.
To use the language of the Supreme Court, was there not a sufficient "appearance of impropriety" to require Thomas to recuse himself in order to avoid "suspicions and doubts"? Or, in the words of the statute, "might" a reasonable person question Thomas' impartiality in "Ralston Purina," in which event he "shall" disqualify himself?
Note that the statutory phrasing is not whether a reasonable person "would" question Thomas' impartiality with regard to a case in which his chief sponsor had a significant stake. Rather, it is whether his impartiality "might" reasonably be questioned. Unless no reasonable person could raise a question, recusal is mandatory.
Judge Thomas ignored the statutory command. Indeed, he wrote a lengthy opinion for the court overturning the $10.4 million penalty against Ralston Purina and specifically disapproving the trial court's finding that Ralston Purina had perpetrated a "cruel hoax" by running advertisements that it knew lacked support. Defending the honor of the Danforth family firm against against Judge Sporkin's finding of bad faith towards its customers, Thomas wrote that Ralston Purina's protestations of innocence could reflect "an honest difference of scientific opinion, rather than a specific intent to mislead consumers."
In reaching this conclusion, Thomas acknowledged that it was necessary to hold that Judge Sporkin's finding of bad faith on the company's part was "clearly erroneous." Thomas further recognized that the Supreme Court has described the deference to trial judges under the "clearly erroneous" standard "in expansive terms," making such findings extremely rare, particularly in lengthy bench trials. Nevertheless, Ralston Purina won its reversal on issues of both money and honor.
The outcome, of course, is irrelevant. Thomas would have been wrong in failing to recuse himself even if he had ultimately held against Ralston Purina. The statute looks to the outset of the proceeding, not to its result. As Yale Law Professor Geoffrey Hazard Jr. has observed, the notion of "no harm, no foul" is "invalid as an ethical proposition."
For the same reason, it is also irrelevant that Thomas' opinion was joined by the other two judges in the case. Judging is a "shared enterprise," as Justice Harry Blackmun put it. Justice William Brennan Jr. added that "[e]xperience teaches us that each member's involvement plays a part in shaping the court's ultimate disposition." For that reason, Justice Blackmun wrote, the presence on a panel of a single judge who is not impartial poses "an unacceptable danger of subtly distorting the decision-making process."
Also irrelevant is the fact that counsel for Alpo did not object to Thomas' presence on the bench. No objection or motion is required to trigger judicial disqualification under Section 455(a). Rather, as expressed by the 5th Circuit in "Delesdernier v. Porterie," 666 F,2d 16, 121 (1982), the statute is "directed to judges . . . and it is meant to be self-enforcing."
This is emphasized by Section 455(e), which allows waiver of disqualification by the parties, "provided it is preceded by a full disclosure on the record of the basis for disqualification." Thus, it is not sufficient that the judge surmise, even correctly, that counsel are aware of the grounds for disqualification and choose not to complain. As made clear at the Senate hearings on the recusal statute, the drafters were conscious of counsel's dilemma of risking the enmity of a judge by initiating the recusal process.
But Thomas failed to initiate a waiver process by making "full disclosure on the record" of his connections with Danforth and of Danforth's connections with Ralston Purina. Since this statutory precondition for waiver was not met, no waiver of Thomas' recusal can be inferred from the silence of the parties.
Counsel for Alpo, Richard Leighton of D.C.'s Leighton and Regnery, says that he was aware of Thomas' jobs with Danforth and of Danforth's connections with Ralston Purina. "We saw it and even made jokes about it," he said in a recent telephone interview. He was not aware of what he called the "abiding friendship" between Thomas and Danforth. Even assuming that, he said, he saw no grounds for a recusal motion.
Leighton's observations may be affected by a felt need to justify his own failure to act as well on Thomas' (although the statute places the onus on the judge, not the lawyer). My own judgement and that of other litigators is that the appearance of impropriety in the "Alpo v. Ralston Purina" case is not a joking matter and that it is clearly within the mandate of Section 455(a).
In the "Ralston Purina" case, Thomas showed no regard for his ethical obligations as a judge and no respect for the statutory mandate that he recuse himself. On both counts, Thomas is unfit to sit on the Supreme Court of the United States.
The point of the column is that Judge Thomas is the protege of Senator Danforth, who has advanced the Judge's career at every step from law school, to U.S. Court of Appeals, to Supreme Court nominee. Danforth, in turn, has many millions of dollars of holdings in Ralston Purina, which was founded by his grandfather. Therefore, a federal statute required Judge Thomas to disqualify himself from sitting in an appeal involving Ralston Purina.
Before the case got to Judge Thomas in the Court of Appeals, there had been a two-month trial before a highly respected Federal District Court Judge, Stanley Sporkin (formerly General Counsel to the CIA). Judge Sporkin had found that Ralston Purina had willfully engaged in false advertising in which the Danforth family company had "perpetrated a cruel hoax" on pet owners by falsely claiming that its pet food could cure a deadly disease. Judge Sporkin therefore penalized Ralston Purina in the amount of $10.4 million.
On appeal, Judge Thomas took what he acknowledged to be an unusual step by reversing Judge Sporkin's factual finding of a "cruel hoax" and by vacating the penalty. In the four business days after that decision, Ralston Purina's stock went up more than $4 a share. By a conservative estimate, this increased Danforth's holdings by $444,000 in less than a week.
My "Legal Times" column explained that the federal statute on judicial recusal required Judge Thomas to disqualify himself from sitting in the Ralston Purina case.
Of equal importance, my conclusion was not based just upon the amount of the penalty. Good will is precious. That is why companies advertise. A judicial finding that Ralston Purina "perpetuated a cruel hoax" upon dog owners is severely damaging to its good will. (Nor is it helpful to the reputation of a Senator who is closely identified with the company in his state.)
Moreover, that judicial finding could be the basis of class action litigation against Ralston Purina by consumers. In such litigation, under the doctrine of collateral estoppel, Ralston Purina could be bound by the finding of false advertising. Because the trial court holding was of willful wrongdoing (also potentially binding), punitive damages could be awarded against Ralston Purina.
All of these factors could (and apparently did) affect the value of Danforth's stock when Judge Thomas overturned Judge Sporkin's findings.
And, as my column pointed out, the way the case came out (as well as the mathematics) are irrelevant. Because a significant impact on his patron's stock was readily predictable. Judge Thomas acted unethically in sitting in a case in which his patron had such a significant interest.
Monroe Freedman is the Howard Lichtenstein Distinguished Professor of Legal Ethics at Hofstra University. Described in the Harvard Law Bulletin as "a lawyer's lawyer," he is frequently consulted by lawyers and law firms throughout the country.
Professor Freedman's first book, "Lawyer's Ethics in an Adversary System" received the American Bar Association's Gavel Award Certificate of merit. Reviews have called it "brilliant," a "classic," and one of the few "monumental contributions to legal education in the past generation.
His most recent book, "Understanding Lawyer's Ethics," was published in 1990. A review in the "Georgetown Journal of Legal Ethics" says that it "deserves a spot on the shelf of all lawyers seriously interested in the problems of their profession. A review in "The Professional Lawyer," published by the ABA Center for Professional Responsibility, calls the book "thoughtful and eloquent" and "idealistic in the best sense of the word."
Selections from Professor Freedman's writings are part of the assigned reading in most law schools in the United States, and his work has been relied upon by numerous courts, including the Supreme Court.
A recent article in "The Journal of the Legal Profession" concludes:
It is no exaggeration to say that [Monroe Freedman's] thinking, writing and lectures . . . have been the primary creative force in legal ethics today, both in the practice of law and in legal education.
Professor Freedman received his A.B., LL.B., and LL.M. at Harvard University, and is listed in "Who's Who in America," "Who's Who in American Law," and "Who's Who in the World."