As expected, most members of the Senate Judiciary Committee have indicated their strong endorsement of Judge Stephen Breyer to become a Supreme Court justice. And properly so. He is an extremely capable jurist.
But there was a discordant note in his confirmation hearings -- his investment in Lloyd's of London. That firm, as Sen. Howell Heflin said to Judge Breyer, "is known nationwide as insuring anything. So the idea of having an investment in Lloyd's of London raises some sort of issue pertaining as to whether or not, after going on the bench, you ought to have divested yourself of any interest in Lloyd's."
In fact, Judge Breyer made additional investments in Lloyd's after he became a judge on the First Circuit Court of Appeals in Boston. And in fact Lloyd's interests may have been related to some asbestos and other environmental cases that came before Judge Breyer's court. In some cases he disqualified himself from hearing the case -- but in some cases he didn't.
That, it seems to us, was clearly a mistake. The U.S. Code says a judge "shall" disqualify himself when he has "a financial interest . . . or any other interest that could be substantially affected by the outcome of the proceeding." The code says this applies "however small" the financial interest is.
There is no suggestion that Judge Breyer did anything to protect his own interests or harmed any party in the cases involved. His integrity is not questioned. But his judgment is. Even by himself, although belatedly.
His interest was hardly small. He was at risk to the tune of #F hundreds of thousands of dollars. In his view his risk was unaffected by the outcomes of the cases he heard. But should such a decision be left to the judge himself?
The purpose of the law quoted above and of non-statutory codes judicial ethics is to ensure that the integrity of the courts is not compromised in fact -- and in appearance. Because federal judges are un-elected and can hold office for life, it is crucial that the judiciary be perceived by the public as above suspicion.
The Judicial Conference of the U.S. works very hard to assist judges in staying above even the hint of suspicion. But as the Breyer situation reminds us, individual judges tend to self-police themselves under the current arrangement.
There needs to be a better way. Exactly what that way would be without encroaching on judicial independence, which is extremely important in the American scheme of governing, we cannot say. Congress, judicial overseers, academics and others in the legal profession need to figure this out.