Judicial Conference votes to release federal judges’ financial records

Wednesday, March 15, 2000

The policymaking body of the federal judiciary reversed itself yesterday and voted to allow federal judges’ financial disclosure reports to be posted on the Internet.

The remarkable 16-8 vote appeared to end a dispute between the Judicial Conference and APBnews.com, an Internet news outlet that was blocked late last year from obtaining the financial disclosure forms because of its plan to post the reports online.

Judges had complained they could be victimized by stalkers or terrorists based on the personal information the reports contain. The news organization sued to gain access to the reports, which are filed and made public in printed form every May.

“This is a victory for the online public,” said Mark Sauter of APBnews.com. “APBnews.com is proud to have fought successfully for the public’s right to know.”

A major factor in the Judicial Conference’s surprising shift was an unusual memorandum from Chief Justice William Rehnquist, who presides over the conference. He advised the conference that resisting disclosure could be illegal and would continue to trigger public criticism of the judiciary.

The Ethics in Government Act bars dissemination of the disclosure forms for commercial purposes, he noted, but makes an exception for “news and communications media” — an exception Rehnquist said clearly included APBnews.com. Even though there might be an opportunity for short-term concealing of information on the forms for immediate security threats, Rehnquist asserted that the law would not allow withholding the forms entirely.

Rehnquist’s memo also offered the conference some remarkable public-relations advice when he assessed the probable fate of the policy of withholding the disclosure forms.

“It is to be expected that closer public scrutiny will be applied when judges decide issues affecting judges. We have already seen evidence of this in editorial commentary, and I suspect it will increase,” Rehnquist wrote. “Moreover, the fact that officials from the executive and legislative branches must also file disclosure reports makes the committee’s position more difficult to defend.”

Noting that members of Congress had introduced bills to force the reports to be disclosed, Rehnquist added that “success in court could prove to be a pyrrhic victory.”

Rehnquist’s memo was released as Judge Ralph Winter, chief judge of the 2nd U.S. Circuit Court of Appeals and chairman of the Judicial Conference’s executive committee, announced the decision to relent on disclosure. The conference discussed and voted on the issue at its regularly scheduled March meeting, which was closed to the public.

Rehnquist’s advice to allow disclosure contrasts sharply to the high court’s reaction more than six years ago when California political science Professor Peter Irons sought to market the Supreme Court’s oral-argument tapes. At the time, the court’s first reaction was to threaten the professor with a lawsuit.

“What a refreshing change,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. “He got them to acknowledge this was a mistake and fix it.”

The outcome of the Irons episode itself may explain Rehnquist’s new attitude. Some court officials now view the 1993 controversy as a case study of how not to react to public calls for disclosure of judicial materials.

The high court’s threat to sue Irons had the effect of attracting interest in Irons’ project and propelled it to bestseller status. Ultimately, the court relented, not only dropping its threat to sue but also basically ending all restrictions on the use of oral-argument tapes once they are transferred to the National Archives at the end of each term.