On February 19, 1992, a panel of the D.C. Circuit decided Lamprecht v. FCC. The panel included Chief Judge Mikva, 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. (Senate Mulls Thomas' Controversial Case; Draft Opinion Would Overturn FCC Ruling On Gender Preferences, 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 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.
