On February 19, 1992, a panel of the DC Circuit decided Lamprecht v. FCC. The panel included Chief Judge Mikvah, and Circuit Judges Thomas and Buckley. (Yes, that would be Justice Thomas and the James Buckley from Buckley v. Valeo.) The opinion held that the FCC violated the Equal Protection Clause by granting an applicant extra credit for being a woman.
Several months earlier, on September 30, 1991, The Legal Times published a report that contained details of draft opinions in the case. (Specter Questioned Thomas about Metro, LEGAL TIMES, Sept. 30, 1991, at 20.) Judge Buckley wrote a concurring opinion that addressed this leak:
This litigation deals with a sensitive subject, and it is not surprising that it should have aroused some passions. Unfortunately, this case has also proven the occasion for a most serious breach of trust. I refer to an article that appeared on September 30, 1991, in The Legal Times, which purported to report in some detail on the contents of preliminary drafts of the majority and dissenting opinions. The issuance today of those opinions in their final form will demonstrate the general accuracy of the information divulged to The Legal Times.
The seriousness of this violation cannot be overstated. 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 inadvertent 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 this 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.
The hemorrhaging of confidential information has become endemic in the may and executive branches of our government, with untold cost to their to function. It is essential that we prevent this disease from invading the judiciary, as this would inevitably the public confidence that is one of the major strengths of our legal system.
The timing makes this leak even more egregious. Lamprecht was argued in January 1991. Judge Thomas was nominated to the Supreme Court in July 1991. The first hearing began on September 10, 1991. On October 4, 1991, Senator Ted Kennedy cited the Legal Times story as a reason to vote against Thomas.
Judge Thomas’ record reveals that he may not be able to shed his past as easily as he asks us to believe. According to recent press reports, just 3 months ago Judge Thomas prepared a draft opinion in his first case on the DC Court of Appeals to raise a significant question of reference to Congress. Judge Thomas circulated his draft opinion to other members of the court, but no further action was apparently taken after his nomination to the Supreme Court, and the opinion has not been made public. This case, Lamprecht versus FCC, involved a challenge to Congress’ decision to increase the number of women and minorities with scarce Federal broadcast licenses by requiring the FCC to grant qualified women and minorities some preference in awarding such licenses. Congress decided that such an increase would benefit all Americans by promoting diversity in broadcasting. In the case, the FCC had awarded a license to a woman, and the award was challenged by a competing applicant for the license on the ground that the statute directing the FCC to continue its preference policy was invalid. According to press reports, Judge Thomas’ draft opinion accepted that argument, on the ground that Congress had offered inadequate evidence when passing the statute that awarding licenses to women would increase broadcasting diversity. Last year, the Supreme Court upheld the congressional preference for minorities in Metro Broadcasting versus the FCC. During the hearings, Judge Thomas specifically testedified that he had no reason to disagree with the Court’s decision in Metro Broadcasting. He also stated that he accepted Supreme Court rulings directing courts to give greater preference to congressional enactments than the State or local laws. But Judge Thomas never mentioned Lamprecht versus FCC in either of these exchanges, even though he obviously has been deeply involved in both aspects of the questions he was asked-his views on the statutory preference for women and minorities, and his views on the degree of deference customers must give to Congress. It is not clear whether Judge Thomas’ DC Circuit opinion will ever see the light of day. What is clear is that he was not entirely candid with the committee in discussing this issue, and that the open mind he professed to have on the Metro Broadcasting case may well have been much more closed than he led us to believe.
Thomas was confirmed by the full Senate on October 15, 1991. And the Lamprecth opinion did see the light of day. There is nothing new under the sun. Everything that is old is new again. The Supreme Court should issue Dobbs, with haste. To quote Judge Buckley, “The issuance today of those opinions in their final form will demonstrate the general accuracy of the information divulged into The Legal Times.” So be it, if Politico was correct.
As far as I know, there was no investigation performed by the DC Circuit. I hope the Supreme Court will take this egregious leak seriously.
On a personal note, I recently saw Judge Buckley at a reception. He is 99 years old. I geeked out, and the only thing I could muster was, “I teach your Buckley v. Valeo case.” He laughed and thanked me.