[House Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
THE FEDERAL JUDICIARY IN THE 21ST CENTURY:
IDEAS FOR PROMOTING ETHICS,
ACCOUNTABILITY, AND TRANSPARENCY
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HEARING
BEFORE THE
SUBCOMMITTEE COURTS,
INTELLECTUAL PROPERTY,
AND THE INTERNET
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
JUNE 21, 2019
__________
Serial No. 116-29
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Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://judiciary.house.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
37-378 WASHINGTON : 2022
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COMMITTEE ON THE JUDICIARY
JERROLD NADLER, New York, Chair
MARY GAY SCANLON, Pennsylvania, Vice-Chair
ZOE LOFGREN, California DOUG COLLINS, Georgia,
SHEILA JACKSON LEE, Texas Ranking Member
STEVE COHEN, Tennessee F. JAMES SENSENBRENNER, Jr.
HENRY C. ``HANK'' JOHNSON, Jr., Wisconsin
Georgia STEVE CHABOT, Ohio
THEODORE E. DEUTCH, Florida LOUIE GOHMERT, Texas
KAREN BASS, California JIM JORDAN, Ohio
CEDRIC L. RICHMOND, Louisiana KEN BUCK, Colorado
HAKEEM S. JEFFRIES, New York JOHN RATCLIFFE, Texas
DAVID N. CICILLINE, Rhode Island MARTHA ROBY, Alabama
ERIC SWALWELL, California MATT GAETZ, Florida
TED LIEU, California MIKE JOHNSON, Louisiana
JAMIE RASKIN, Maryland ANDY BIGGS, Arizona
PRAMILA JAYAPAL, Washington TOM McCLINTOCK, California
VAL BUTLER DEMINGS, Florida DEBBIE LESKO, Arizona
J. LUIS CORREA, California GUY RESCHENTHALER, Pennsylvania
SYLVIA R. GARCIA, Texas BEN CLINE, Virginia
JOE NEGUSE, Colorado KELLY ARMSTRONG, North Dakota
LUCY McBATH, Georgia W. GREGORY STEUBE, Florida
GREG STANTON, Arizona
MADELEINE DEAN, Pennsylvania
DEBBIE MUCARSEL-POWELL, Florida
VERONICA ESCOBAR, Texas
Perry Apelbaum, Majority Staff Director & Chief Counsel
Brendan Belair, Minority Staff Director
------
SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET
HENRY C. ``HANK'' JOHNSON, Jr., Georgia, Chair
LOU CORREA, California, Vice-Chair
THEODORE E. DEUTCH, Florida MARTHA ROBY, Alabama, Ranking
CEDRIC RlCHMOND, Louisiana Member
HAKEEM JEFFRIES, New York STEVE CHABOT, Ohio
TED LIEU, California JIM JORDAN, Ohio
GREG STANTON, Arizona JOHN RADCLIFF, Texas
ZOE LOFGREN, California MATT GAETZ, Florida
STEVE COHEN, Tennessee MIKE JOHNSON, Louisiana
KAREN BASS, California ANDY BIGGS, Arizona
ERIC SWALWELL, California GUY RESCHENTHALER, Pennsylvania
BEN CLINE, Virginia
Jamie Simpson, Chief Counsel
Thomas Stoll, Minority Chief Counsel
C O N T E N T S
----------
JUNE 21, 2019
OPENING STATEMENTS
Page
The Honorable Henry C. ``Hank'' Johnson, Jr., a Representative in
the Congress from the State of Georgia, and Chairman,
Subcommittee on Courts, Intellectual Property, and the Internet 1
The Honorable Martha Roby, a Representative in the Congress from
the State of Alabama, and Ranking Member, Subcommittee on
Courts, Intellectual Property, and the Internet................ 3
The Honorable Jerrold Nadler, a Representative in the Congress
from the State of New York, and Chairman, Committee on the
Judiciary...................................................... 11
The Honorable Doug Collins, a Representative in the Congress from
the State of Georgia, and Ranking Member, Committee on the
Judiciary...................................................... 18
WITNESSES
Professor Amanda Frost, Professor of Law, American University
Washington College of Law
Oral testimony............................................... 26
Prepared Statement........................................... 28
Mr. Gabe Roth, Executive Director, Fix the Court
Oral Testimony............................................... 37
Prepared Statement........................................... 39
Mr. Russell Wheeler, Visiting Fellow, The Brookings Institution
Oral Testimony............................................... 46
Prepared Statement........................................... 48
Professor Charles Gardner Geyh, John F. Kimberling Professor of
Law, Indiana University Maurer School of Law
Oral Testimony............................................... 52
Prepared Statement........................................... 54
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
A letter from James C. Duff, Secretary of the Judicial Conference
of the United States from the Honorable Martha Roby, a
Representative in the Congress from the State of Alabama, and
Ranking Member, Subcommittee on Courts, Intellectual Property,
and the Internet............................................... 82
APPENDIX
Questions to witnesses for the record from the Honorable Henry C.
``Hank'' Johnson, Jr., a Representative in the Congress from
the State of Georgia, and Chairman, Subcommittee on Courts,
Intellectual Property, and the Internet........................ 92
Response to questions for the record from Professor Amanda Frost,
Professor of Law, American University Washington College of Law 95
Response to questions for the record from Mr. Gabe Roth,
Executive Director, Fix the Court.............................. 98
Response to questions for the record from Mr. Russell Wheeler,
Visiting Fellow, The Brookings Institution..................... 102
Response to questions for the record from Professor Charles
Gardner Geyh, John F. Kimberling Professor of Law, Indiana
University Maurer School of Law................................ 104
Remarks for the record of Chief Justice William H. Rehnquist,
American Law Institute Annual Meeting, May 15, 2000 from Mr.
Gabe Roth, Executive Director, Fix the Court................... 113
A 2011 Year-End Report on the Federal Judiciary for the record
from Mr. Russell Wheeler, Visiting Fellow, The Brookings
Institution.................................................... 116
A white paper for the record from Professor Amanda Frost,
Professor of Law, American University Washington College of Law
entitled, ``Judicial Ethics and Supreme Court Exceptionalism''. 132
An article for the record from Professor Amanda Frost, Professor
of Law, American University Washington College of Law entitled,
``Keeping Up Appearances A Process-Oriented Approach to
Judicial Recusal''............................................. 183
An article for the record from Mr. Russell Wheeler, Visiting
Fellow, The Brookings Institution entitled, ``A Primer on
Regulating Federal Judicial Ethics''........................... 246
THE FEDERAL JUDICIARY IN THE
21ST CENTURY: IDEAS FOR PROMOTING
ETHICS, ACCOUNTABILITY, AND
TRANSPARENCY
----------
JUNE 21, 2019
House of Representatives
Subcommittee on Courts, Intellectual Property, and the Internet
Committee on the Judiciary
Washington, DC.
The Subcommittee met, pursuant to call, at 9:03 a.m., in
Room 2141, Rayburn House Office Building, Hon. Henry C.
``Hank'' Johnson, Jr. [Chairman] presiding.
Present: Representatives Johnson, Nadler, Correa, Cohen,
Deutch, Bass, Stanton, Roby, Collins, Chabot, Jordan, Johnson
of Louisiana, Biggs, Reschenthaler, and Cline.
Staff Present: Rosalind Jackson, Professional Staff Member,
Courts, Intellectual Property, and the Internet; Danielle
Johnson, Counsel, Courts, Intellectual Property, and the
Internet; Jamie Simpson, Chief Counsel, Courts, Intellectual
Property, and the Internet; Matthew Robinson, Counsel, Courts,
Intellectual Property, and the Internet; Daniel Ashworth,
Minority Counsel; and Andrea Woodard, Minority Professional
Staff Member.
Mr. Johnson of Georgia. The Subcommittee will come to
order. Without objection, the Chair is authorized to declare a
recess of the Subcommittee at any time.
We welcome everyone to this morning's hearing on ``The
Federal Judiciary in the 21st Century: Ideas for Promoting
Ethics, Accountability, and Transparency.'' I will now
recognize myself for an opening statement.
Good morning and welcome. Today we begin the first in a
series of hearings on the state of the Federal judiciary in the
21st century. In this hearing we will investigate ideas for
promoting ethics, accountability, and transparency in the
Federal courts.
We focus on these ideas in our first hearing on the
judiciary because they flow from two foundational principles of
due process. First, that no one can be a judge in his own case.
Second, to quote former Supreme Court Justice Felix
Frankfurter, quote, ``Justice must satisfy the appearance of
justice,'' end quote. Justice must satisfy the appearance of
justice.
Both rules embody the understanding that the Constitution's
implicit promise of equal justice under law depends on at least
two things: that our courts must be fair, independent, and
impartial; and that we must also believe that our courts are
fair, independent, and impartial.
Justice must satisfy the appearance of justice. It might
take a second, but we intuitively understand that. It means
that, as the Supreme Court recently explained, quote, ``both
the appearance and reality of impartial justice are necessary
to the public legitimacy of judicial pronouncements and thus
the rule of law itself,'' end quote.
I think that is why people are so surprised when they learn
that the Supreme Court isn't bound by a code of ethics, unlike
nearly every other court in America. It just doesn't fit with
their understanding of what it means to be a judge, let alone a
justice of the United States Supreme Court. And that is why it
is so concerning when a justice does something prohibited by
the code of ethics they don't follow and that every other judge
does.
That is why I was proud to introduce H.R. 1075, the Supreme
Court Ethics Act, which would require a code of ethics for the
Supreme Court.
I was also heartened to learn from Justice Elena Kagan's
recent testimony that the Supreme Court may also be discussing
whether to adopt a code of ethics on its own. This would be a
welcome development, and I hope that this hearing and the show
of support for my bill will encourage this discussion to
continue in earnest.
I would like to turn to the second principle framing
today's hearing, that no one can be a judge of their own case.
Everyone understands this. That is why people find it so
troubling that, when a potential conflict of interest arises,
each justice decides for him or herself whether or not to be
recused from a case without anyone else reviewing their
decision.
The same basic concern arises when people learn that if
they think a lower court judge is too biased to fairly decide
their case, that same judge is the one who decides whether he
or she needs to step aside.
The fact that judges don't normally explain these decisions
doesn't make things any better.
I think it is clear that these problems aren't resolved if
we think a judge or justice made the right decision or even
when we reflect on the competence and integrity of each and
every judge. We are talking about the rule of law, and that
means rules and laws, not outcomes or individuals.
And that brings us to you. This is a distinguished panel,
and I very much look forward to hearing your ideas on how
Congress and this Subcommittee can help the courts solve these
problems.
I also want to hear any concerns you might have, and I am
especially interested in your thoughts on the constitutional
principles at play when Congress establishes rules for judicial
conduct and procedure. I hope you will be willing to work with
us as we move forward from this hearing.
Thank you, and I look forward to your testimony.
And it is now my pleasure to recognize the Ranking Member
of the Subcommittee, the gentlewoman from Alabama, Mrs. Roby,
for her opening statement.
Mrs. Roby. Thank you, Chairman Johnson.
And thank you to all of our distinguished witnesses for
coming to testify today.
I have seen firsthand the importance of the judiciary, and
I am proud to be Ranking Member of this Subcommittee to help
ensure our courts have the structure, tools, and resources to
make sure they operate efficiently and effectively.
People all across the United States turn to the Federal
court system to settle disputes and adjudicate cases in a fair
and impartial manner. Our courts deal with intricate issues and
complex law to reach a decision based on the merits of the
case, and it is important that the public have trust in these
judicial decisions.
Today's hearing is titled ``The Federal Judiciary in the
21st Century: Ideas for Promoting Ethics, Accountability, and
Transparency.'' Specifically, we are going to be discussing at
this hearing a code of conduct for the Supreme Court justices,
posting judge and justices' financial disclosures online, and
the posting of recusal notices and a reason for the recusal
online.
Congress should constantly be considering how we can work
with the Federal judiciary for greater transparency and
efficiency, and I am interested in hearing from our witnesses
this morning.
However, I have concerns with the possible negative
consequences from these proposals. Current proposals would
require the Judicial Conference to create a code of conduct for
Federal judges and justices. This is both questionable and
repetitive. Federal judges are currently already covered by the
Judicial Conference's Code of Conduct, and the Judicial
Conference does not oversee the Supreme Court. It seems strange
that we would have lower court judges creating a code of
conduct for the highest court in the land.
There are also concerns that requiring a code of conduct
for the Supreme Court would be unconstitutional. I also
understand that Chief Justice Roberts is working on a code of
conduct for the Supreme Court justices and would like to learn
more about the progress that has been made in that effort.
There have been concerns raised with posting judges'
financial disclosures online. With the high profile and
sometimes contentious decisions that judges must make, there
are unique safety and security concerns. I am from Alabama, and
I remember quite vividly when Judge Robert Vance, serving on
the 11th Circuit Court of Appeals, was assassinated.
These security concerns are not hypothetical, and they are
very real. Judges face dangers from disgruntled former
defendants and plaintiffs, and we should act cautiously when
making more personal information available that could be used
to threaten the safety of judges and their loved ones.
Disclosures of recusal explanations or a list of judges'
recusals also raises concerns. Judges may recuse themselves
from cases for a variety of reasons, many of which may be
personal, and disclosure could be used by future litigants to
gain an advantage.
There is no requirement that Members of Congress explain
why they abstained from voting, and I think many of my
colleagues would be opposed to such a requirement. We should
fully examine what impact such a requirement might have.
In closing, while we should always look at ways to ensure
that the courts are transparent, efficient, and effective when
adjudicating cases, I have. deep concerns with these proposed
changes. I would caution that we should be sure to robustly
scrutinize any legislative proposals for possible negative
consequences and long-term implications for our judicial
system.
I want to again thank our witnesses for their time,
particularly on an early Friday fly-out morning, for being
here.
So thank you very much, Mr. Chairman, and I yield back.
[The statement of Mrs. Roby follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Johnson of Georgia. Thank you, Congresswoman.
I am now pleased to recognize the Chairman of the Full
Committee, the gentleman from New York, Mr. Nadler, for his
opening statement.
Chairman Nadler. Thank you, Mr. Chairman, for holding this
important hearing today.
The Federal judiciary is the pillar of our Nation's
government, an institution nearly synonymous with upholding the
rule of law. When Congress as a co-equal branch conducts
oversight of the courts with hearings such as this one, it is
with the following goal in mind: to promote and protect this
vital institution in order to safeguard judicial independence
and maintain public confidence in our courts.
Our Federal judiciary is the envy of the world, and
Congress has an interest in ensuring that this hard-earned
reputation is maintained. Today's hearing is part of that
process. As the hearing title suggests, we are considering what
is appropriate for a judiciary in the 21st century.
Now that we are squarely situated in the Information Age,
in which we are accustomed to accessing practically any
information with a click of a button, we should ask whether
there needs to be greater transparency with respect to
information regarding the Federal judiciary. For example,
should we require the judges' financial disclosure forms, which
could indicate potential conflicts of interest, be more easily
accessible? And what sort of public disclosure should be made
when a judge chooses not to recuse him or herself from a case?
These questions go to the heart of ensuring that the public's
trust in the judiciary remain strong.
Similarly, a key question for today's hearing is what, if
anything, can Congress and the courts do to reinforce the
judiciary's commitment to ethical conduct. What can we do to
ensure that every judge's and every court's decisions regarding
ethics and recusal are transparently made and procedurally
fair? What can we do to make sure those decisions are
understandable and accessible to the public?
On this front, I am glad to say there seems to be some
bipartisan commitment to further action. Last Congress, the
Judiciary Committee passed by voice vote the Judiciary ROOM
Act, which included a provision requiring the Judicial
Conference to develop a code of conduct that would apply to all
Federal judges, including justices of the Supreme Court.
This Congress, two bills, H.R. 1, the For The People Act,
and H.R. 1057, the Supreme Court Ethics Act of 2019 introduced
by my colleague, Chairman Johnson, include an identical
provision.
The ROOM Act also included a provision requiring the
Supreme Court to post a short online explanation when a justice
recuses her-or himself from a case. I am interested to hear the
views of our witnesses on that provision.
And I hope a future hearing will examine proposals to
increase public access to the courts, such as the Electronic
Courts Records Reform Act, which Ranking Member Collins has
introduced, or legislation to make court proceedings publicly
accessible by live or same-day audio or video along the lines
of the Eyes on the Court Act, which I have introduced in prior
years.
While I am interested in seeing what can be done to
strengthen the courts, make no mistake that I respect the
difficult and important job that all Federal judges and
justices perform every day. Reckless, stained attacks on the
integrity and legitimacy of individual justices and judges have
become all too common. Physical threats against Federal judges
and other court officers have dramatically increased as well.
We cannot ignore these realities.
As both branches consider how to ensure that the judicial
branch keeps pace with our evolving standards for transparency
and accountability in a modern democracy, we must be mindful of
the safety of our judges and the women and men who assist the
courts in fulfilling their responsibilities.
Historically, our two branches have worked together to try
to arrive at an appropriate approach to the difficult issue of
balancing transparency and other concerns such as safety. I
hope we can continue that dialogue in light of the changing
times.
To that end, I look forward to hearing from all of our
distinguished witnesses on these important topics.
Thank you again, Mr. Chairman. I yield back the balance of
my time.
[The statement of Chairman Nadler follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Johnson of Georgia. Thank you, Congressman Nadler.
I now recognize the distinguished Ranking Member of the
Full Committee, the gentleman from Georgia, Representative
Collins, for his opening statement.
Mr. Collins. Thank you, Mr. Chairman. I appreciate that.
And also Ranking Member Roby.
I am glad we are holding this hearing. I think it is a
great time. And I am glad to have the witnesses here on a
Friday morning. What a way to start the weekend, you know. And
I get a smile from most of you there.
But, again, this is a Subcommittee that is holding this
hearing so Congress can promote ethics, accountability, and
transparency in the Federal judiciary. The Federal judiciary
serves a vital role in the United States by ensuring that all
Americans have access to a fair and impartial system of
justice.
The Federal judiciary has held itself to the highest
standards of the legal profession, which has enabled it to
serve as a pillar of our democracy. In doing so, it has built
the level of institutional trust that is vital for it to
continue in its role as arbiter in some of the most bitter
disputes. In order to maintain that trust, courts must ensure
that they are transparent and accountable to litigants and the
American people.
While I generally support the idea that a Supreme Court
should have its own code of conduct, I have some concerns with
the proposals that have been put forward by the majority. Many
of these concerns are specific to the function of the Supreme
Court as the highest court in the land.
Difficult questions remain, such as, who would administer
the code applicable to the Supreme Court? Having the Judicial
Conference enforcing the code of conduct will mean lower court
judges would be evaluating the conduct of justices.
Instead of imposing our will on the court, I would like to
work with the Chief Justice to adopt a code of conduct that
accounts for the unique realities of being a Supreme Court
justice while maintaining appropriate public accountability.
While increased transparency and availability of judges'
financial disclosure certainly would be an improvement for
judicial transparency--the unique security concerns mostly were
spoken of, but especially eloquently by our ranking member on
this just a moment ago--it is a concern that Federal judges
must be considered. Judges' lives are constantly at risk.
And for those of us who have worked in the court system, we
see this more and more, not only from the prosecutor's
standpoint, the defense standpoint, and the judges. And for
those of us who have worked in the courts, that becomes a
family. We know each other. We work with each other. And this
has become more and more a concern, and I want to make sure
that we consider that as we go forward.
While it is true Members of Congress' and the President's
financial disclosure are posted online, Federal judges face
different risk. Daily they work in close proximity to some of
the most egregious offenders in our criminal justice system.
The potential that financial disclosure would put a judge at
risk--or their family--by a disgruntled litigant is very real
and very concerning.
The public disclosure of a justice's recusal explanation
also could have series unintended consequences, and it could
result in the parties leveraging prior explanations to the
benefit of a current client. Proposed recusal requirements
raise similar constitutional concerns.
But that is why we are here. That is why Congress exists.
That is why we have hearings. And this is something for us to
bring to the table. And I am glad that you all are here, and I
am glad that your statements have been--we will hear from those
and the statements that have already been forwarded to us.
But I look forward to this work. I look forward to this
committee's work. And I want to thank the chair not only of
this subcommittee, but the ranking member of the subcommittee
as well, put also the full committee chairman as well, and look
forward to a wonderful hearing.
And I yield back.
[The statement of Mr. Collins follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Johnson of Georgia. Thank you, Congressman Collins.
I will now introduce today's witnesses.
Professor Amanda Frost is a Professor of Law at the
American University Washington College of Law. She writes and
teaches in the fields of constitutional law, immigration and
citizenship law, Federal courts and jurisdiction, and judicial
ethics. She has written numerous academic articles in such
publications as the Duke Law Journal and the Northwestern Law
Review. Her nonacademic work has been featured in publications
such as the Atlantic and The New York Times.
Before entering academia, Professor Frost clerked for Judge
A. Raymond Randolph on the U.S. Court of Appeals for the D.C.
Circuit and was a staff attorney at Public Citizen. She has
both her B.A. and J.D. from Harvard, and was a Fulbright
Scholar.
Welcome.
Gabe Roth is the Executive Director of Fix the Court, a
nonpartisan organization solely focused on modernizing the
Federal judiciary. Originally from Nashville, Tennessee, Mr.
Roth began his career as a producer at the NBC affiliate in
Jacksonville, Florida. He has a B.A. from Washington University
in St. Louis and an M.S. in journalism from Northwestern
University.
Welcome sir.
Russell R. Wheeler is a Visiting Fellow in the Brookings
Institution's Governance Studies Program and President of the
Governance Institute. He is also an Adjunct Professor at
American University's Washington College of Law and is a Fellow
of the University of Denver's Institute for the Advancement of
the American Legal System. He is in his second term as a public
member of the Administrative Conference of the United States.
Previously, he was the Deputy Director of the Federal
Judicial Center, which he first joined in 1977. Before that, he
also worked at the National Center for State Courts and the
United States Supreme Court. He has written extensively on the
United States courts, including on judicial ethics.
Mr. Wheeler has a Ph.D. in political science from the
University of Chicago and a B.A. from the Augustana College in
Illinois.
Welcome, sir.
Professor Charles Gardner Geyh is the John F. Kimberling
Professor of Law at the Indiana University Maurer School of Law
in Bloomington, Indiana. His writings on judicial conduct,
ethics, selection, independence, accountability, and
administration include more than 70 books, book chapters,
articles, reports, and other publications.
Prior to entering academia in 1991, he served as Counsel to
the House Judiciary Committee's Subcommittee on Courts,
Intellectual Property, and the Administration of Justice under
Chairman Robert W. Kastenmeier. Professor Geyh has both his
B.A. and J.D. from the University of Wisconsin.
Welcome, Professor. Welcome back home.
Now, we welcome all of our distinguished witnesses and
thank them for participating in today's hearing. Before
proceeding with testimony, I hereby remind each witness that
all of your written and oral statements made to the
Subcommittee in connection with this hearing are subject to
penalties of perjury pursuant to 18 U.S.C. section 1001, which
may result in the imposition of a fine or imprisonment of up to
5 years or both.
Please note that each of your written statements will be
entered into the record in its entirety. And accordingly, I ask
that you summarize your testimony in 5 minutes.
To help you stay within that time, there is a timing light
on your table. When the light switches from green to yellow,
you have 1 minute to conclude your testimony. When the light
turns red, it signals your 5 minutes have expired.
Professor Frost, you may begin.
STATEMENTS OF PROFESSOR AMANDA FROST, PROFESSOR OF LAW,
AMERICAN UNIVERSITY WASHINGTON COLLEGE OF LAW; MR. GABE ROTH,
EXECUTIVE DIRECTOR, FIX THE COURT; MR. RUSSELL WHEELER,
VISITING FELLOW, THE BROOKINGS INSTITUTION; AND PROFESSOR
CHARLES GARDNER GEYH, JOHN F. KIMBERLING PROFESSOR OF LAW,
INDIANA UNIVERSITY MAURER SCHOOL OF LAW
STATEMENT OF AMANDA FROST
Ms. Frost. Thank you, Chairman Johnson, Ranking Member
Roby, and Members of the Subcommittee. My name is Amanda Frost,
and I am a Professor of Law at American University Washington
College of Law, where I teach and write in the areas of civil
procedure, Federal courts, and judicial ethics.
One of this country's great strengths is its Federal
courts, the politically insulated third branch of government
that serves not only to check the other two branches of
government, but also to decide legal questions affecting
millions of Americans.
Although all Federal judges wield great authority, in
particular, the nine justices on the U.S. Supreme Court are
powerful because their decisions apply nationwide and in
constitutional cases are irreversible.
For that reason, it is essential both that the judges on
these courts are fair and impartial and that they be perceived
by the public as being fair and impartial.
The purpose of the ethics and recusal laws we are here to
discuss today is not only to protect litigants and society from
potentially biased or conflicted decisions, but also to protect
the judiciary itself from being tarnished by allegations of
impropriety.
Protecting the court's reputation is particularly important
today, when Gallup polls have shown that the public's
confidence in the courts has declined over the last few
decades.
There are two changes to existing ethics rules and laws
that could help to improve the public's confidence in the
courts, as well as the quality of the court's decisionmaking.
First, the Code of Conduct, which provides ethical
guidelines for judges, currently does not apply to the nine
justices on the U.S. Supreme Court. Likewise, the Judicial
Conduct and Disability Act of 1980, which authorizes
investigations into allegations of misconduct by judges and
also authorizes sanctions in appropriate cases, also does not
apply to the U.S. Supreme Court.
The omission of the Supreme Court justices from the ethical
rules that govern the rest of the Federal judiciary undermines
the goal of these laws to protect the reputation of the third
branch of government. Congress can and should change this.
Now, some people argue that there is no reason to expand
these laws to apply to the justices because some justices have
publicly stated that they follow the Code of Conduct. But
voluntary compliance is not equivalent to a mandatory ethics
standard either in the eyes of the public or, experience has
shown, in the eyes of the justices themselves.
We do not have to look far to find many specific examples
of conduct by justices that violate specific provisions of the
Code. For instance, Justices Antonin Scalia and Clarence Thomas
have spoken at fundraising events for the Federalist Society,
which is in conflict with Canon 4C of the Code's provision
stating that a judge, quote, ``may not be a speaker, a guest of
honor, or featured on the program of a fundraiser,'' end quote.
More recently, political statements by Justice Ruth Bader
Ginsburg criticizing then candidate Donald Trump and overtly
partisan statements by Justice Brett Kavanaugh during his
confirmation hearings appeared to violate several of the
canons, including Canon 5's prohibition against making
statements regarding political candidates or engaging in
political activity.
In short, we cannot rely on the justices to police
themselves.
Second, Congress should amend the recusal statute, 28
U.S.C. Section 455, to require, at a minimum, that judges and
justices provide an explanation for their decision to recuse or
remain on a case when challenged.
In addition, Congress should put in place--or encourage
judges to put in place--procedures to refer recusal requests to
another judge on the court in at least some cases.
Both of these changes are well within Congress'
constitutional authority. Congress has already enacted myriad
pieces of legislation regarding ethics, recusal, and judicial
administration, as is appropriate under the Necessary and
Proper Clause of the Constitution.
As most justices themselves recognize, the judiciary's
reputation is essential to its institutional legitimacy, that
is to the public's respect for and willingness to abide by its
decisions. The changes I have discussed would bolster the
court's reputation and safeguard its integrity, and thus will
strengthen and not diminish the third branch of government.
Thank you for your attention, and I look forward to your
questions.
[The statement of Ms. Frost follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Johnson of Georgia. Thank you. And you came in right at
5 minutes. Thank you.
Mr. Roth, you may begin, sir.
STATEMENT OF GABE ROTH
Mr. Roth. Chairman Johnson, Ranking Member Roby, and
members of the Subcommittee, thank you for the invitation to
testify today.
My name is Gabe Roth, and I am the Executive Director of
Fix the Court, a national nonpartisan organization that
advocates for greater transparency and accountability in our
Federal courts.
I want to be clear from the start: None of the measures we
are calling for today on ethics recusals and disclosures would
require a significant change in the way the courts conduct
themselves.
The Supreme Court already says it holds itself to a high
ethical standard. Here we are merely asking that they write
those standards down so that we can see and understand them.
Every Federal judge and justice already fills out a
financial disclosure report each year, which eventually is made
available to the public. We are merely asking that they make
them public on the internet. And all judges and justices recuse
themselves from petitions and cases when appropriate and for
particular reasons. All we are asking is for them to share with
us the general category of conflict that caused them to
conclude that a recusal was necessary.
Look, it is the summer, and we are not trying to assign the
judiciary a lot of additional work. We just want them to show
their work, the work they say they are already doing to ensure
they are meeting the high ethical standards that the public
wants to hold them to.
Now, on to the proposals. First on whether the Supreme
Court should have a formal binding code of conduct.
Now, do I believe that a SCOTUS ethics code would stop a
judge or justice from speaking publicly about a Presidential
candidate or accepting gifts from a well-known political donor?
Would it make a judge or justice reconsider appearing at an
annual fundraiser for a partisan organization or sitting on a
case involving a publishing company who has just paid her a
hefty book advance?
Maybe. That is as good as I can give you. Maybe. But that
is simply better than trusting that these ethically murky
practices that are not covered by the recusal statute will
suddenly stop occurring each year.
I present these examples not to single out any individual
justice, but to demonstrate that although the high court's
opinions may by final, its members are not infallible.
This mortality is readily acknowledged by other courts and
by other branches of government. The top courts in nearly every
U.S. State follow an ethics code that is modeled off the
Judicial Conference's. Similarly, the courts of last resort in
nearly every modern democracy have a formal conduct code.
Congress, as you well know, has an Office of Ethics, two
Ethics Committees, and a Code of Official Conduct. The
executive branch has an Office of Government Ethics and
standards of ethical conduct for branch employees. It follows
that the Supreme Court should at least have an ethics code.
Second on whether annual financial disclosures should be
posted online. So, again, Congress and the executive branch
already permit a version of their disclosures to be posted
online so we know it can be done.
When it comes to the disclosures of justices and judges, it
should not be left to Fix the Court to act as the middleman,
first obtaining the .tiff files from the disclosure office,
then converting them to .pdf files, and finally posting them
online, as we did last week. Primary sources should be posted
by the primary source.
Current disclosure regulations state that members of the
public who wish to obtain a disclosure must check a box on
their request form promising they won't use the information for
any commercial purpose or to obtain a lien against a judge. But
there is no reason that that checkbox couldn't be placed
online.
When the ideas for disclosures are brought up, the Judicial
Conference inevitably cites privacy concerns as the reason for
opposition. I share these concerns. I am happy that SCOTUS is
doing a top-down security review and that the fiscal year 2020
budget has an additional $34 million for the Marshals Service
to protect the judiciary.
But I also believe we can find a way to balance privacy
with the public's reasonable desire to know within a reasonable
amount of time whether its judges and justices are trying to
hide something, like junkets or gifts, from their 330 million
constituents.
Finally on why judges and justices recusal explanation
should be made public. The exercise of appending a few words to
a recusal notice would not only improve institutional
accountability, it would also assist the justices to think more
about their conflicts of interest.
Since we were founded 4 years ago, Fix the Court has
identified several missed recusals from the justices, instances
in which Justices Scalia, Breyer, Alito, Sotomayor, and Chief
Justice Roberts probably should have, according to the recusal
statutes, disqualified themselves from hearing a case but did
not.
The Supreme Court used to list recusal explanations but
stopped this practice in 1904 for reasons I can't figure out.
This practice should be resumed in a more direct manner by
asking each judge or justice simply to refer back to the
language of the recusal statute when announcing his or her
recusal, that it was triggered by something like one's
finances, 28 U.S.C. 455(b)(4). Pretty simple.
Chairman Johnson, Ranking Member Roby, and Members of the
Subcommittee, thank you again for the opportunity to testify. I
have been honored to work with Members of the Subcommittee and
the full Judiciary Committee over the past few years on
proposals that would build a more open and accountable
judiciary, and I look forward to answering any questions that
you may have.
[The statement of Mr. Roth follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Johnson of Georgia. Thank you, Mr. Roth. You came in a
little bit earlier than Professor Frost did. Thank you.
Mr. Wheeler.
STATEMENT OF RUSSELL WHEELER
Mr. Wheeler. Thank you Mr. Chairman, Ranking Member Roby. I
appreciate the chance to appear before you today.
I have laid out my positions in my statement, and I won't
belabor those in any great detail here but refer you to the
statement.
But in brief, I believe the Supreme Court should have a
code of conduct if for no other reason than its own self-
interest. But with deference, Mr. Chairman, I don't think it is
a good idea to ask the Judicial Conference of the United States
to develop a code for the court. That runs counter, I think, to
the statutory governance structure for the Federal courts that
Congress has created.
I have written and I believe that judges should explain
their reason for recusal on the record, for transparency, for
appellate purposes, and also to create a common law of recusal.
But I do worry a bit about requiring such a statement in
matters of nonfinancial conflicts, embarrassing details that
judges might decide to eschew recusal rather than reveal those
matters on the record. So I think any rule has to find an
exception to protect judges in that circumstance.
I acknowledge that the Federal judiciary, where I worked
for most of my career, is a bit transparency averse. I took
note in my statement of the Judicial Conference's reluctance
until several years ago to post online the so-called ``Biden''
reports, reports of cases that have been delayed, motions that
have been delayed, and bench trials that have been delayed,
identifying those judges by name. Those are now online, but it
took a while for that to happen.
I do believe, however, in the area of financial disclosure
forms that a little less transparency is desirable. And I think
the judicial branch has hit the right balance in its decision
to provide disclosure statements on a case-by-case basis
appropriately redacted for the particular requester.
And finally, because Mr. Ashworth asked me to comment about
it, about the question of blind trust, whether judges should be
required to put their holdings into a blind trust, which I
think is an idea well worth considering, but at the moment it
runs into the statutory mandate that judges keep themselves
informed about their personal and fiduciary financial
interests. I don't think you can reconcile one with the other.
So some statutory adjustment I think is in order.
Let me say more broadly, I came to this subject, as you
indicated, Mr. Chairman, as deputy director of the Federal
Judicial Center, particularly in support of the work of the so-
called ``Breyer Committee'' that Chief Justice Rehnquist
appointed, actually at the urging of the former chairman of the
committee, Mr. Sensenbrenner, and that the Breyer Committee
produced a revamped and more aggressive administration of the
Judicial Conduct and Disability Act.
In that work, though, I became aware of the tensions
involved in effecting effective judicial ethics policy. The
code of conduct for U.S. judges tells judges, and I think quite
properly so, that they should be subject to restrictions on
their behavior that the ordinary citizen would find burdensome
and they should accept those restrictions willingly. I agree
with that.
But I also think those restrictions can't be so obtrusive
as to discourage qualified individuals from accepting
appointment to the Federal bench or staying on the Federal
judiciary.
And balancing these tensions, I suggest, is not easy. Some
may think these are easy questions to resolve. I don't think
they are easy questions to resolve given the importance of the
values at stake, importance of judicial independence on the one
hand, judicial accountability on the other, and other values
that are in tension. So these tensions aren't easy to balance.
I appreciate the subcommittee's effort to take them on and deal
with them.
And I would be happy to try to answer any questions you may
have. Thank you.
[The statement of Mr. Wheeler follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Johnson of Georgia. Thank you. And you came well under
5 minutes. Thank you so much.
Professor Geyh.
STATEMENT OF CHARLES GARDNER GEYH
Mr. Geyh. Thank you, Mr. Chairman. I feel as though I
should not speak at all and win the contest for being the
briefest.
It is a pleasure to appear before the Subcommittee I once
served as counsel. And I really do look back with a fair amount
of pride at the extent to which the Subcommittee worked
together to produce bipartisan reform. And I really believe
that the issues before the Subcommittee today are of the same
sort that allows for that same opportunity, and I want to focus
on that.
I mean, I am going to in some ways try to go off script,
because I wanted to begin by talking about why it is important
to have a code of conduct for the Supreme Court. But to a man
and a woman on your side of the dais and here, I think there is
a consensus that it is important. It is just a question of how
do we get there from here.
And, again, I would agree, I think, with Mrs. Roby that
ideally the solution is--the best bet is for the Supreme Court
to adopt a code for itself. I think that is the optimal
solution. However, the court--I mean, bear in mind, and I think
it is a reason it is fair to be skeptical, because we now have
50 States, all of which have supreme courts that have adopted
codes of conduct, the lower courts have all adopted their codes
of conduct. The only court in the United States that hasn't
gotten to it is the U.S. Supreme Court.
And so I think there is some value in keeping the pressure
on. In other words, to work with them, to try to get them to
promulgate their own code, but to recognize that at the back of
it all the second best option, in my judgment, is for this body
to pass legislation directing the Supreme Court to promulgate
its own code of conduct.
Note that I do not favor the idea of having the Judicial
Conference do it for the reasons that Mr. Wheeler and others
have suggested. But I do think directing the court to do it
would be a perfectly fine and sound idea.
The issue then is, would that be constitutional? Is there a
concern with that? And I think the answer is, to me, clearly
yes, that Article I, section 8 authorizes Congress to make all
laws necessary and proper for carrying into execution all
powers vested in the Government of the United States. And a
plain reading of that provision, to me, authorizes Congress to
establish a Supreme Court that is fit for duty.
And if you look back to the very first Congress, they did
just that. In the Judiciary Act of 1789, it established a
Supreme Court, determined its size, spelled out its duties, and
included a special oath, a unique oath, for all judges to take
to ensure that the Supreme and lower courts were comprised of
judges who were committed to principles that defined our
democracy since the beginning of Western civilization.
And I am quoting from the 1789 oath that Congress asked
judges to swear to: ``I do solemnly swear that I will
administer justice without respect to persons, and will do
equal right to the poor and the rich, and will faithfully and
impartially discharge and perform all the duties incumbent on
me, according to the best of my abilities and understanding
agreeable to the constitutions and laws of the United States,
so help me God.''
This is a code of conduct. This is a short code of conduct
that justices are swearing to. And if Congress has the
authority to require judges to take an oath to abide by core
ethical precepts at that point, I don't see why they don't also
have the power to ask the court to elaborate on the ethical
precepts to which they are willing to abide.
The Judicial Conference, as I say, has expressed concerns
about it doing that.
I am with you on that. I am on board with the notion that
the Judicial Conference shouldn't be that body. Courts develop
their own codes of conduct. The Supreme Court should develop
one unique to it.
The second point that is of issue is financial disclosure.
To me, the core problem begins with saying in this day and age
making information available to the public means making it
available online. It is the way we do business in the 21st
century.
The Judicial Conference has objected to posting judges'
financial disclosure statements on the web, citing privacy
concerns, and I urge you to work with the Judicial Conference
to resolve those.
And in that regard, I would ask one question. At this
point, I can go onto the Judicial Conference, or the AO, and
say: Give me reports on every one of the Federal judges. And in
due course, I would get them with private information redacted.
I can then post that onto the web.
So what I want to know is what privacy concern is
associated with cutting out the middleman and them posting
redacted information with all of the security and private
information taken out and posted. To me, I think that is the
issue. And I think there has got to be a way we can fix this.
Last point has to do with disqualification reform. I think
judges have an obligation to provide reasons for the decisions
they make. And when they decide to disqualify themselves from
hearing a case that they are otherwise duty bound to hear, I
think the public has a right to know why. And I think it is a
little different than with abstaining as a legislator, because
you are under no obligation, no ethical duty, to participate,
to vote. The judges have an ethical obligation to participate
unless disqualified.
I understand the Judicial Conference's concern, but I think
my suggestion would be, one thing with a report that Mr.
Wheeler was responsible for writing, one possibility is to go
with a checkbox approach which requires judges to identify the
statutory grounds for disqualification without going into the
details, without elaborating on the privacy. I think, again, we
can make this work.
Thank you.
[The statement of Mr. Geyh follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Johnson of Georgia. Thank you, Professor. Three out of
four ain't bad.
Mr. Geyh. I did my best.
Mr. Johnson of Georgia. Well, I appreciate it. Thank you.
We will now proceed under the 5-minute rule with questions.
I will begin by recognizing myself for 5 minutes.
Professors Frost and Geyh, it sounds like you are both
quite confident that Congress has both the authority and the
obligation to regulate the Federal Judiciary's ethics and
recusal practices. Is that correct?
Ms. Frost. Yes.
Mr. Geyh. Yes.
Mr. Johnson of Georgia. What do you make of the Chief
Justice's suggestion to the contrary?
Mr. Geyh. Could you explain? By that, you mean his
suggestions to the contrary that the court--that the Congress
doesn't have the authority?
Mr. Johnson of Georgia. Correct.
Mr. Geyh. I interpret what the Chief Justice has said as
saying it is an open question. In other words, that we have
never gotten not to this, not that they don't have the
authority.
And to me you can read that two ways. One is as a warning,
you know, don't go there because it may be unconstitutional.
The other is that our system works, because for 200 years--
and the Chief Justice adds this--for 200 years we have a custom
of abiding by these practices without exception.
And I think that custom is what explains why this has never
been resolved. It is not that it is a problem. I mean, for 50
years, the disqualification statute has been in place, and no
one has challenged it successfully or otherwise. I think that
is what is going on.
Mr. Johnson of Georgia. All right. Thank you.
Professor.
Ms. Frost. And I will just add, I mean, Professor Geyh
already said it very eloquently, and it is in both of our
written testimony, that one of the ways in which we test to
determine the constitutionality of Congress' action is to look
at history, to look at what Congress has done. And that is part
of constitutional analysis.
And we can see that since the very first Congress--and the
actions of the first Congress are particularly informative when
it comes to the constitutionality of congressional action--that
from the very beginning Congress thought it the authority and
took action to regulate the courts, both somewhat intrusive
administrative provisions, like the size of the court, the
quorum requirement, the dates of its sessions, and also matters
relating directly to ethics, such as the oath which Professor
Geyh just mentioned in his testimony. So I think the history
shows it is permissible.
Mr. Johnson of Georgia. Thank you.
What message does it send that the Supreme Court has
refused to adopt a code of ethics? And what are the long-term
risks associated with the Court's refusal or failure to do so?
Ms. Frost. Well, the message it sends, obviously, is not a
great one, because I don't think we want--part of what I care
about here is not just the reality of impartial and fair
justice but the public's perception of the courts, which I
think is somewhat at risk today, for many reasons beyond just
the subjects of this hearing.
So I think it is unfortunate that the Court has so far been
reluctant to adopt a code of conduct for itself. Hearings like
this, I think, are very valuable in pushing, hopefully, the
agenda of those nine justices to rethink that. And there have
been some suggestions by the Court that it is now seriously
considering adopting a code.
So I think the message it has sent thus far, it is
unfortunate. But I am hoping that we are at a moment where it
is maybe reconsidering that position and would adopt a code for
itself.
Mr. Johnson of Georgia. Thank you.
We are in an era where the legitimacy of the courts is
constantly questioned and the public's faith in the Supreme
Court has eroded. Is the kind of legislation we are discussing
here today appropriate in this environment, Mr. Wheeler? Is it
appropriate that we are discussing this legislation?
Mr. Wheeler. By all means. That is what Congress is here
for, as my colleagues have said. Congress has been regulating
the Federal courts in various ways since the Founding. And I
think it can only contribute to a better understanding of what
the Federal courts are all about. I think that is a pretty
obvious proposition.
Mr. Johnson of Georgia. Mr. Roth, do you believe that the
implementation of a code of conduct for the Supreme Court would
change the institution? And if so, how?
Mr. Roth. I believe it would change the institution for the
better. Faith in the courts is something being discussed more
and more. And the idea--you know, it is something that people
don't really realize. When you talk about the Supreme Court,
you think about certain opinions, certain historic opinions,
what they are doing now.
But when you tell them, oh, they don't have a binding code
of conduct like the rest of the Federal judiciary, it makes
people think, well, why is that? And it almost makes it seem
like there is some fishy when there probably isn't. It is just
that this is what every other court has done. And the Supreme
Court is a court, so it should do it as well.
Mr. Johnson of Georgia. Thank you.
So as to not violate my own 5-minute rule, I am going to
yield back the balance of my time and call upon the Ranking
Member, Congresswoman Roby, for her questions.
Mrs. Roby. I thank the Chairman.
And this is for all of you, and if you could just be brief,
because we do only have 5 minutes.
Judges oversee cases with the most egregious offenders in
our criminal justice system, and the U.S. Marshals Service just
said that posting financial disclosures online would identify
family, locations, and other information, making judges and
justices vulnerable to attack.
So how can we appropriately mitigate the danger these
disclosures might create?
Just go down the line, please.
Ms. Frost. I think, obviously, the safety of our judges is
of paramount importance. I think redactions and working
carefully with judges and coming up with a list of structures
and guidelines for those redactions would alleviate that
problem.
Mr. Roth. I tend to agree that you can't be an organization
that advocates for transparency without being an organization
that advocates for greater security. And I think those two
things go hand in hand, both with the Supreme Court Police and
with the U.S. Marshals Service, as a way to work together to
ensure that the justices' safety remains paramount.
And given the fact that the Supreme Court has already said,
in a case called Duplantier they didn't grant cert on, that
financial disclosure reports are constitutional, and Chief
Justice Rehnquist has said he is okay with them being posted
online, I think we have an opportunity via Congress, as it
hasn't happened by the U.S. courts themselves, to move that
forward while balancing privacy.
Mr. Wheeler. I don't really have much to add to that. It is
just a question of balance.
The Judicial Conference's current position is that it
releases financial disclosure statements on a case-by-case
basis. When it does, it releases them electronically free of
charge. I think that is the proper policy.
But, again, this is one of those tough questions. If it
were easy, we would have resolved it a long time ago. It is a
difficult question. I acknowledge that. And it is important for
Congress to work with the courts to come to a sensible
solution.
Mrs. Roby. And, Professor Geyh, before you answer, the
Marshals Service has stated that public disclosure of all
judges and justices would create a serious security risk. So in
your testimony, I would ask you more specifically why should we
not give deference to those security risks.
Mr. Geyh. We should give deference to security risks. My
question is--I think it requires a followup question and a
conversation. Because I think that if we accept that interest
groups are currently requesting--and they are, they are
requesting disclosure statements and then publishing them
online, this is already happening, in other words--and to what
extent posting it--cutting out the middleman is not going to
affect that.
In other words, this is a redaction problem. Redact all
information that threatens the privacy of judges and safety of
judges, absolutely. But if you have got to publicly disclose
the redacted stuff, I don't think it makes a difference whether
the Judicial Conference posts it online or whether interest
groups, which are currently doing it, request it and then post
them online themselves.
Mrs. Roby. And then, Professor Frost, would the disclosure
of potential conflicts that do not justify recusal encourage
parties to file more frivolous appeals of a judge's decision
not to recuse himself? And how would this impact already
overcrowded dockets?
Ms. Frost. Well, I mean, of course, the parties have
incentives themselves not to file frivolous appeals regarding
recusal. Recusal is a very sensitive topic. And to file such a
motion as a lawyer who appears regularly before the same
judges, that is a difficult thing for a lawyer to do. I was a
practicing lawyer for many years. And one hesitates to do it.
So there is already a great disincentive to file a motion
to recuse. To take a frivolous appeal seems to me something
that, both in terms of the cost and the time that the lawyer
would have to expend and the reputational hit that lawyer would
take, it strikes me as something that would not be a big
problem. And, of course, if it is a truly frivolous appeal, it
can be resolved very quickly.
Mrs. Roby. And, Mr. Roth, if judges' and justices' recusal
explanations were publicly available, what safeguards exist to
prevent forum shopping?
Mr. Roth. I think that if you know--if you are a judge
and--well, okay. So you can't forum shop if you are at the
Supreme Court, obviously, because that is the only option.
This is going to be like a retrospective thing. So it is
not--you know, if you have a judge who has a financial
conflict, first of all, you might--you may learn that in the
annual financial disclosure reports when they come out. And
secondly, if you learn it in an early stage of the case, you
know, that is fine. I mean, that is the statute working.
Mrs. Roby. There are no--I mean, there are no protections,
particularly when you are talking about the lower court level.
Okay. I am going to move on.
Similarly--are you cutting me off?
Okay. I will come back to round two. Thanks.
Mr. Johnson of Georgia. Thank you, Madam.
Next we will have 5 minutes of questioning from the
Chairman of the Full Committee, Congressman Nadler from New
York.
Chairman Nadler. Thank you, Mr. Chairman.
Professor Frost, how would you enforce a code of ethics on
the Supreme Court?
Ms. Frost. So that is a tough question. I guess I would say
one step at a time. So my first goal for the Supreme Court
would be to have a code of ethics.
Because of its prominence and the public attention the
justices get for their daily activities, I would hope one
enforcement mechanism would simply be that they would buy into
it. They would agree to it. They came up with it. They signed
onto it. It is now binding on them. They would follow it.
If that doesn't happen, the second line of defense is there
is a great deal of public attention focused on those nine
people and the criticism would have more bite and go further if
they were violating provisions of the code.
Now, the next step is should we have some sort of
enforcement mechanism like we do for the lower court judges
with the Judicial Conduct and Disabilities Act? I am open to
having that discussion. It is a complicated question. I would
want us to be careful. But I guess I would say one step at a
time. Let's get a code in place first.
Chairman Nadler. Does anybody else want to answer that
question?
Mr. Wheeler. About the enforcement of the code?
First, we ought to understand, the code itself is
aspirational. I don't regard it, as does my good friend Amanda
Frost does, as binding.
But to set up a disciplinary mechanism I think is just a
cure worse than any disease of occasional misconduct by the
courts. You could have a disciplinary mechanism in which people
file complaints with the justices themselves, who would then
set up some sort of a mechanism to resolve the complaints as
occurs with the judicial councils under the Judicial Conduct
and Disability Act.
In a body whose collegiality is being strained already, I
don't think injecting that kind of a thing into the Court makes
an awful lot of sense.
The alternative, of course, is to have lower court judges
receive the complaints. And there is a potential for even more
mischief. Sometimes a sanction on a judge who is found to have
committed misconduct is to relieve them of their caseload for a
while. Do you want to have a couple of lower court judges
telling a Supreme Court justice to sit out a couple of cases?
Imagine the consequences of that.
So as I say, there are a lot of instances of Supreme Court
justices' engaging in questionable conduct. I have detailed
them in my article on the subject. But to try to fix it with
imposing that kind of a mechanism seems to me to be folly.
Chairman Nadler. Thank you.
Professor Frost, what signal would it send if the Supreme
Court decided that Congress cannot pass laws regulating
judicial ethics or procedure?
Ms. Frost. I think that would be extremely troubling. I was
troubled by Chief Justice Roberts' 2011 report. I mean, in part
because he was commenting on a legal issue that might come
before him, and because in that report he suggested, he didn't
state outright, but he suggested that there might be a
constitutional problem should Congress impose ethics
legislation.
I am hopeful now that, perhaps upon rethinking this issue
and maybe in consultation with his colleagues, they are now
moving to a different position, not that Congress lacks the
constitutional authority, but let's not test that issue. How do
we avoid testing that issue? We create a code for ourselves.
That is what I am hopeful this conversation is leading towards.
Chairman Nadler. And what would the consequences be to our
constitutional structure if the Supreme Court did issue such a
ruling?
Ms. Frost. So there have been lots of fascinating examples
in this Nation's history of what I will call the showdowns
between Congress and the courts. And sometimes the courts back
off and sometimes Congress backs off.
What typically happens is the American people, in some way,
shape, or form, decide through their views of these two
institutions. And, frankly, if the Supreme Court were to issue
such a self-dealing opinion that said Congress, which is
supposed to under the Constitution regulate us in all sorts of
ways, lacks the authority to keep us ethically within bounds, I
would hope that, in part, the public reaction would be powerful
and would affect the court. And there is lots of examples and
scholarship to show the court responds to public opinion.
Chairman Nadler. We know that.
And finally on this subject, for Professors Frost and Geyh,
how do you see judicial ethics recusal and disclosure reforms
as fitting within the separation of powers doctrine, or did you
just answer that?
Ms. Frost. Yes. Well, although I will make one point, which
is I care enormously about the independence of the court and,
to use the term Professor Geyh has used, decisional
independence. I would be very upset to see Congress try to
control the decisions of the court by penalizing the court for
issuing decisions whose outcomes they don't like.
That is not what we are talking about here. We are talking
about regulating the court as an institution. And that is
appropriate and well within the bounds of what Congress has
always done.
So I care very much about protecting the separation of
powers when it comes to the court's decisional independence.
And it is appropriate and within the Constitution's structure
for Congress to oversee the institution of the courts through
such legislation as we have been discussing.
Chairman Nadler. Thank you.
Mr. Johnson of Georgia. Thank you.
We will now hear 5 minutes of questions from the gentleman
from Arizona, Mr. Biggs.
Mr. Biggs. Thank you, Mr. Chairman.
I appreciate all of you being here. This has been very
interesting, and I appreciate it.
I want to go with what Professor Frost was just talking
about, because as you sit here and we are talking and I think
of the Judiciary Act of 1789 where we did--Congress set a
precedent of getting in and basically setting up a court from a
very, I would say, some fine-tuning some administrative issues
and setting it up. And you get to the point of separation of
powers.
What is--and we talk about this, we talk about this all the
time anyway, at least in my little group in Congress we do.
Where do we set these boundaries? What do you see as the
legitimate check on the independent judiciary from this branch?
And that is all of you. Be as brief as you can, but as
extensive as you can, knowing that I might have some followup
questions for you.
Mr. Geyh. Well, I think the array is pretty significant.
The 100-ton gun is the power to impeach and remove judges.
There is the power over the budget to make sure they are not
engaging in wasteful spending. There is the power to establish
lower courts, by implication disestablish lower courts, and
regulate their operations fairly extensively, their practice,
their procedure, their administration----
Mr. Biggs. And their jurisdiction?
Mr. Geyh. What?
Mr. Biggs. And their jurisdiction?
Mr. Geyh. Yes, and their jurisdiction, yes.
And I think that there is also the power, the necessary and
proper power, to make sure that they have the framework
necessary to create the Judicial Conference of the United
States, to create the Administrative Office, to create the
Federal Judicial Center where Russell used to work.
And so I think that that is kind of the array, and at the
Supreme Court level to manage its jurisdiction as well.
Mr. Wheeler. One other thing I would add. That is the power
of oversight, Congress has the authority to oversee the
operations of the Federal courts and it should exercise it. It
is good for the Federal courts to have someone looking at their
operations. That is important as well.
Mr. Roth. And recent history bears that out, right? It is
the Ethics and Government Act of 1978 that applied to the
justices in terms of disclosure, the Ethics Reform Act of 1989.
So every 20 or 30 years in the history of the country there has
been some form of judiciary act which, in most cases, applies
both to the justices and the lower court judges.
Ms. Frost. I agree with everything that my fellow panelists
said. I just want to add, I think this kind of legislation
should not be viewed as diminishing or undermining the courts,
but as strengthening it. And that is one of Congress' roles, to
protect and strengthen the courts.
Mr. Biggs. So when we look at Article III, section 1, and
we talk about--and it says specifically that the justices shall
hold their offices during good behavior, right, it is not
lifetime, but it is good behavior, expand on what you have been
talking about this morning on the authority of the legislative
branch to basically monitor or check bad behavior. And we just
talked about some of that, but if you would. And we are taking
this right into the ethics of the Supreme Court justices, in
particular.
Mr. Geyh. I mean, I think there is the argument of there
being a gap between the high crimes and misdemeanors that are
subject to removal for impeachment and less than good behavior
that is subject potentially to regulation. And the Judicial
Conduct and Disability Act of 1980 tries to fill that gap by
creating a disciplinary mechanism within the Federal judiciary,
which I think is and has been deemed constitutional.
For reasons that Mr. Wheeler gave, I am on board with the
notion that it is a bad idea to extend that to the Supreme
Court, but I think that is that middle ground that is open to
regulation by the Congress.
Mr. Biggs. Mr. Wheeler.
Mr. Wheeler. I really have nothing to add to that. I will
yield back my time.
Mr. Biggs. All right. So we are good there. All right.
And I appreciate you being here and look forward to the
rest of this hearing.
I yield back.
Mr. Johnson of Georgia. The gentleman yields back.
And we will now recognize the other gentleman from Arizona,
Mr. Stanton.
Mr. Stanton. All right. Thank you very much, Chairman
Johnson. Thank you for holding this important hearing.
Thank you to the witnesses.
I am a new Member of Congress and I was surprised and even
shocked that there isn't a code of conduct for our United
States Supreme Court to build confidence, public confidence in
that incredibly important institution. We can do this and do it
right and strike the necessary balances.
This is a question for all witnesses. In Caperton v.
Massey, the Supreme Court recognized, quote, ``Judicial
integrity is a State interest of the highest order,'' and that
judicial codes of conduct, quote, ``serve to maintain the
integrity of the judiciary and the rule of law,'' unquote.
How do we square these statements with the Court's refusal
to adopt a code of conduct for itself?
Professor Frost, you want to jump in first?
Ms. Frost. Maybe human nature seems to play a role here. I
think that is, of course, one of the interesting catch-22s of
recusal where judges decide for themselves whether to recuse or
a Supreme Court that says: We don't want a code of ethics but
we will follow the one that exists that doesn't apply to us.
I think it is just very difficult for the justices to both
live up to their highest ideals and also to avoid public
criticism, some of it unfair, for not following a code that was
not designed for them.
So I am going to reference Professor Geyh's excellent
written testimony where he discussed how Justice Scalia and
Justice Thomas spoke at a fundraiser. That clearly violates the
code of conduct that Chief Justice Roberts had said: We all
follow.
But the answer is not--perhaps that was appropriate to
speak at that fundraiser. I think that is an open question. I
think it is actually very good when justices give public
speeches at many different events to educate the public about
what they do.
The question is, because the Court itself had not come up
with a code that was specific to those nine people and their
preeminent role in our system of justice, they run the risk of
violating a code that maybe isn't appropriate to them.
I would rather see them come up with a code, obviously with
a lot of public scrutiny and public participation to make sure
that it is appropriate, that would have their highest ideals,
their best goals for how to behave. And then, having signed on
to it, I would hope for the most part they would obey it; and
if they didn't, we would have, I think, a lot of public
discussion and public controversy about why they didn't, which
hopefully would help keep everyone in line.
Mr. Stanton. All right. Any other witnesses?
Mr. Roth.
Mr. Roth. Sir, just two quick points.
One, when you talk about Caperton, it is part of what I
call the self-referential docket. There are certain cases that
the Supreme Court has come out with opinions, but they don't
reflect back on themselves.
There is a case in Missouri saying that it is okay to term
limit judges, yet they serve for life. There is a case Estes v.
Texas, Nebraska Press Association v. Stuart, allowing
journalism and broadcast journalism in courtrooms, yet they
don't allow cameras or live audio in the courtroom.
Similarly with Caperton v. Massey, it is avowing how
important judicial ethics are, but they don't have ethics.
So that to me means that Congress needs to step in and fill
in the gap and actually write a code for them since they
clearly don't feel that interested in doing it themselves, or
if they say they did, well, you know, I don't know if we
necessarily should trust that it is going to be a high level
code.
Mr. Stanton. The code is not just for the benefit of the
public to build confidence in the Supreme Court, it is also for
the protection of the members of the Supreme Court themselves.
Mr. Wheeler, did you have a comment?
Mr. Wheeler. I think that is the key point. There is a view
that the Supreme Court, because it doesn't have a code, it is a
kind of a judicial ethics no man's land. It seems to me the
court is in its own self-interest to adopt a code, put to rest
all these arguments about why it doesn't have a code, and
exhibit a seriousness about this which we haven't seen.
Sometimes the--I am not going to name names--but sometimes
the justices have been asked about in hearings like this one
about their ethical regulations and, frankly, the answers they
give are wrong. I just don't understand what they are--I am not
going to say they don't understand what they are talking about,
but they give incorrect answers, which I don't think is a sign
of their weakness; it is just they don't give enough attention
to this matter as they should. And they could put a lot of this
to rest by adopting a code. It is not for me to tell the
Supreme Court what to do, but that is my view of it.
Mr. Stanton. Sadly, in recent years nominees of the U.S.
Supreme Court from both parties have been dragged through the
mud in the nomination process, and big money has been spent, a
lot of dark money, big money has been spent from outside
interests who want to influence the Senate's confirmation
process.
Should Congress do anything about that?
Professor.
Ms. Frost. I completely agree that the confirmation process
is now deeply troubled and that it is time, high time, for that
process to be revamped and restructured and for there to be a
robust conversation followed by a set of principles and
guidelines going forward.
We do not want to see any justice go through the system
that we have in place now. It is bad for those justices and it
is bad for the court. So I very much hope that will change.
Mr. Stanton. What are your ideas? Oh, out of time.
All right. Next time.
Mr. Johnson of Georgia. Thank you.
We will now hear 5 minutes from the gentleman from
Virginia, Mr. Cline.
Mr. Cline. Thank you, Mr. Chairman. I think it is because
it is a fly-out day, I think that is why the gavel is quick
today.
I want to thank our witnesses for being here. I read your
testimony with interest, and I agree that transparency and
accountability are critical for the successful operation of our
courts. We need to encourage that and promote that.
I also believe that it is a resolved question on here, but
that Congress does have the authority under Article I, section
8 to regulate the courts.
I think that there is general unanimity that the Supreme
Court should operate under a code of conduct. The question is,
should it be--is it preferable to have it imposed by the
Supreme Court or should we seek to impose it upon them? And
what are the unintended consequences of that?
I think that leads us down a rabbit hole that Professor
Frost spoke of that could potentially lead to a greater
constitutional crisis than not imposing one.
But I would ask the witnesses for really just a yes-or-no
answer, I think. Should the Supreme Court have a code of
conduct, yes or no?
Ms. Frost. Yes.
Mr. Cline. Professor Frost, yes.
Mr. Roth?
Mr. Roth. Yes.
Mr. Cline. Mr. Wheeler?
Mr. Wheeler. Of course, yes.
Mr. Cline. And Professor Geyh?
Mr. Geyh. Yes.
Mr. Cline. And now, yes or no, is it preferable for them to
adopt their own code to us imposing one on them, yes or no?
Ms. Frost. It is preferable for them to adopt their own
code.
Mr. Roth. I think equally preferable.
Mr. Cline. Equally?
Mr. Roth. Yes.
Mr. Wheeler. The court should adopt a code itself. I think
that is the preferable course.
Mr. Geyh. I agree, they should adopt their own code.
Mr. Cline. Okay. I noted from Professor Frost's testimony,
in your overview the recusal laws do apply to the Court, the
Ethics and Government Act of 1978 dealing with income reports
applies to the Court, the Ethics Reform Act of 1989 applies to
the Court. The Judicial Council's Reform and Judicial Conduct
and Disability Act of 1980 does not. That deals with complaints
and the review of complaints.
Do you think that should apply to the Court? And if so, who
should be filing complaints? How should those be reviewed? And
are you, again, opening something that is going to have
unintended consequences and make the operation of the courts
more challenging and more subject to partisan attack?
Professor Frost.
Ms. Frost. So, as I just answered, yes, there should be a
code of conduct for the Court. I explained it is preferable for
the Court to come up with one, but if it won't, then I would
say this body should.
Your question is, well, what about a mechanism to
investigate and sanction the justices, obviously short of
impeachment, which is always something this body can do? And
there I would say that I think Mr. Wheeler, who mentioned
sometimes the cure can be worse than the disease, I would
hesitate to create a disciplinary mechanism for the justices.
First of all, I think the nine of them do, in fact,
informally discipline each other. At least in history, looking
back at history, we have seen some examples of justices
refusing, for example, to allow a particular justice who they
think may not--no longer be of sound mind to be the sole
deciding vote on a case. The justices protect themselves and
sanction themselves a bit.
I think also as both Congress' oversight and members of the
public we should all be vigilant and we should speak out and
criticize the Court when we think it has overstepped and that
is in a way a public censure and sanction.
I would hesitate, I would be against having either lower
court judges have a method of overseeing the Court or giving to
the nine themselves the ability to investigate complaints
through something like the Judicial Conduct and Disability Act.
I think that would be worse than the problem we are trying to
solve.
Mr. Cline. Isn't giving the Judicial Council Or Conference
the ability to create this code exactly that oversight and
influence?
Ms. Frost. So I think I agree with my fellow panelists here
who said that the Judicial Conference should not be charged
with coming up with a code for the Supreme Court, rather the
Court itself should be encouraged to come up with a code or we
could find--this body, I think, at the last instance could be
the one to come up with a code.
I would hesitate to have the Judicial Conference do it
because it does not regulate the Supreme Court, it is made up
of judges who are overseen by the Supreme Court, and it,
itself, has said it does not think that role is appropriate.
Mr. Cline. Really quickly, should we allow citizens to file
complaints against Supreme Court justices for violations?
Ms. Frost. I guess maybe semantics. Should we allow,
citizens to say there is a code of conduct in place--this is in
the future where I am imagining such a code--there is a code of
conduct in place and a justice has violated it? Yes, that
should be a very loud and very public conversation when that
happens.
Mr. Cline. Thank you.
Mr. Johnson of Georgia. Thank you.
Our next questioner will be the gentleman from Florida,
Congressman Deutch, for 5 minutes.
Mr. Deutch. Thank you, Mr. Chairman.
Thanks to the witnesses for being here.
The pinnacle of our Nation's judicial system, the United
States Supreme Court, doesn't have a written code of ethics.
They are the only court within the judicial branch that doesn't
have a code of ethics. It is confounding that the Supreme
Court's nine lifetime members have spoken about, but have not
yet drafted and enacted a code.
And, Professor Frost, it is, I think, little consolation
that justices informally discipline each other from time to
time.
Lower Federal courts comply with the code of conduct for
U.S. judges, every State court, as we have discussed today,
complies with the code of ethics that has been enacted by the
State, modeled on the ABA's model code.
I have got many significant concerns about lack of a
written judicial code of ethics for the Supreme Court, but it
has had a direct impact on the confirmation process of the
newest justice. I would like to just explore that a bit.
After Judge Kavanaugh was confirmed by the Senate but
before he was sworn in as a justice, Chief Justice Roberts
referred 15 complaints against Judge Kavanaugh to the Tenth
Circuit Court of Appeals. Chief Justice Roberts instructed the
Tenth Circuit to form a judicial council to review the
complaints.
As the Tenth Circuit judicial council commenced its review,
the 15 complaints grew to 83. But then, on December 18, the
Tenth Circuit judicial council determined that it didn't have
jurisdiction to review the complaints due to Judge Kavanaugh
being sworn in as a justice on the Supreme Court.
So I am the Chairman of the House Ethics Committee. We lose
jurisdiction over Members of this body--we lose jurisdictions
to enforce the rules of the House, the ethics rules, when a
Member leaves the House of Representatives.
Judges, it seems now, in the judicial branch of government,
the ethics laws no longer are binding on judges once a judge is
confirmed to a lifetime appointment on the United States
Supreme Court.
It doesn't seem quite right. I think it is understandable
that people would be puzzled by the situation that we find
ourselves in, specifically, this process for reviewing
substantive ethics complaints against sitting judges who
ultimately are confirmed to become members of the Supreme
Court.
So that specific situation, I wonder if any of our
witnesses have thoughts.
Yes, Mr. Wheeler.
Mr. Wheeler. Well, all they are doing is applying the
statute. The statutory definition of judge to whom the act
applies is a magistrate judge, bankruptcy judge, district
judge, and circuit judge. It excludes the Supreme Court.
So when Judge Kozinski resigned his--retired from the bench
entirely, the Second Circuit Judicial Council, to whom that
complaint was referred, lost jurisdiction. So, too, when
Justice Kavanaugh was no longer a judge of the court of
appeals, the statute lost its jurisdiction over him. You can
amend the statute.
Mr. Deutch. And what happened as a result? What happened to
the investigation as a result?
Mr. Wheeler. Well, it died. It had no reason to exist
because----
Mr. Deutch. Right. Well, I would quibble with the
suggestion it had no reason to exist. I mean, there was a very
serious reason for it to exist.
I guess my question is, if the confirmation had been
delayed by a year, how would that investigation have proceeded,
that is my question, under the existing law that applies to
judges?
Mr. Wheeler. Up until the point that he was confirmed and
was sworn in, well, just off the cuff, I guess all I can say
is, off the cuff, you have a very messy situation on your
hands, because you have someone pending for confirmation and a
judicial council out in Denver evaluating his conduct during
the confirmation hearing.
I don't know what--I am not going to spell out what is
going to happen. It seems to me it would be----
Mr. Roth. Well, it is still ongoing. The Judicial
Conference--the Tenth Circuit dismissed the complaint. It got
kicked to the Judicial Conference committee on--they have
several committees, one of their committees. So they are still
reviewing the complaints. That is still ongoing.
I think that just overall we want to be sure that what--the
proposals that we are doing today predate Kavanaugh, they are
not trying to single out any individual justice. We could go
back 30 years and talk about ethical complaints. I understand
your concerns.
But I do think there are things that we can do to change
the law. Kozinski shouldn't be getting his $200,000 a year
pension. That is well within Congress. There are about a dozen
judges who have retired in the last 10 years because of
misconduct who are still getting huge pensions. There is
definite language that can be inserted into law.
But as soon as you become a justice that becomes a
question, you know, an extrajudicial question that is, again,
up to you guys. But, you know, I don't see how you square the
two.
Mr. Deutch. Thank you.
Mr. Johnson of Georgia. Thank you.
We will now have 5 minutes of questions from the gentleman
from Pennsylvania, Congressman Reschenthaler.
Mr. Reschenthaler. Thank you, Mr. Chairman. I appreciate
it.
I am really troubled by a lot of the recommendations. I was
a magisterial district judge. I was a rather young magisterial
district judge. But the disclosure of information is troubling.
There was a district judge in Pennsylvania who his father-
in-law was killed because there is an assassination attempt on
the district judge.
You are dealing with some bad individuals. You are sending
people to jail, revoking their freedom. I just think the
disclosures are troubling.
The recusal explanations also are counterintuitive, because
as a judge you would only recuse for certain personal reasons.
If you required a judge to then say why he or she is recusing,
it would actually have the unintended consequence of keeping
the judge on the case because he or she might not want to say
why they are recusing themselves.
So I actually think that there is an unintended consequence
here that actually thwarts what you are trying to do and
actually forces a judge to--it puts a judge in an uncomfortable
position where they may--where they otherwise wouldn't be in.
So I understand where you are coming from, but I just think it
is not thought through.
And with that, I am going to yield to my colleague from
Alabama.
Mrs. Roby. Well, thank you for yielding.
And I guess, because we are pushing up against votes being
called, so maybe no round two. So thank you.
I am going to pick up where we left off.
I was expressing some concerns about forum shopping, and
similarly is where I left off. Could public explanations for
recusal result in attorneys abusing those explanations to
attempt to disqualify a judge that they deem unfavorable.
Mr. Roth. It is possible. I mean, to your example, if you
have an AT&T. Smith in the Western District of Texas--you know,
AT&T is a big company, maybe they would want to sue in the
Eastern District--I think that is already happening.
In terms of trying to get judges off of cases, the Judicial
Conference and the Supreme Court actually put forth an opinion
saying that if you are an amicus and you are putting this
amicus on the record just to get a judge or justice off the
case, you can't submit that amicus.
So I think that there is--look, this is an ongoing
conversation. You know, there are a lot of missed recusals
recently. So this is sort of what we have come up with as a
good response. I don't think that one law that is passed is
going to be the end to the story.
Mrs. Roby. The reason I bring up these points is because I
think it is very important as we are having this discussion,
these have. to be, as I said in my opening statement, very well
thought out and discussed ideas. And so it is interesting to
see all of the different perspectives represented here on each
of these issues. And so, again, I just want to thank you all
for being here today.
I do want to point out one other concern that was brought
out in the letter dated June 19, 2019, from the Judicial
Conference signed by James Duff, and this is also a concern.
Were a judge to specify the nature of every recusal
explicitly--and already been mentioned multiple times about the
security questions--or by implication that a disqualification
is not related to financial conflict, the effect could be to
expose personal information needlessly about the litigant and/
or prejudice the litigant before the judge's colleagues. And I
think that also is a very important point to make as well.
So I appreciate the gentleman yielding.
I would like to, Mr. Chairman, enter into the record this
letter. I would ask for unanimous consent.
Mr. Johnson of Georgia. Without objection so ordered.
[The information follows:]
MS. ROBY FOR THE RECORD
=======================================================================
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mrs. Roby. And I yield back to Mr. Reschenthaler.
Mr. Reschenthaler. Thank you.
I yield the remainder of my time.
Mr. Johnson of Georgia. Thank you.
Our next interrogator is the gentleman from Tennessee, Mr.
Cohen, for 5 minutes.
Mr. Cohen. Thank you, Mr. Chair. Interrogator is not going
to be the right term.
I came a little late, so I might have missed some of your
earlier testimony. I would just like to ask whoever wants to
respond, have any of the justices said that they were
interested in doing their own.
The nodder. Is it Mr. Roth?
Mr. Roth. Yes. At a hearing before the House Appropriations
Subcommittee on Financial Services and General Government,
Justice Kagan reported that Chief Justice Roberts was
considering writing a code for the judiciary, which is a
positive step. But I would just counsel that given, you know,
previous activities demonstrate future results, I think we
would be in a better situation if it were Congress writing that
code. I would trust that more than if it was coming from the
judiciary itself.
Mr. Cohen. When was that?
Mr. Roth. She mentioned that in March of this year.
Mr. Cohen. In March.
Mr. Roth. And there hasn't been any further information
from the Court since then.
Mr. Cohen. They have a lot of restrictions or requirements
to give notice and limitations on moneys that are, I guess,
mostly through Congress and they abide by them pretty much, I
guess, but they don't file those papers on the internet. Is
that right?
Mr. Roth. That is right. I have to fill out a form, which I
have right here, you know, by pen. I got to fax it in or email
it in. And then, within a few weeks, I will get back those on a
thumb drive. And then they are in a very hard-to-read format,
so I change the format, and then I post them on
fixthecourt.com.
Mr. Cohen. Is the reason for that that the Court considers
longstanding judicial tradition important?
Mr. Roth. I think it is. It would be very easy for them--I
have been told there is metadata, there is personalizing
information. There is not. Just make it a pdf and upload it to
uscourts.gov.
Mr. Cohen. Well, I just want to say, as we close, that I
have the utmost respect for Justice Roberts. I think I feel
comfortable with his position. I feel confident that he will do
the right thing. And I pray and I hope that he does the right
thing at the right time, to paraphrase Dr. John, when the cases
come before him to save the Republic.
And I yield back the balance of my time.
Mr. Johnson of Georgia. I thank the gentleman.
We will now have 5 minutes from the gentleman from
Louisiana, Congressman Johnson.
Mr. Johnson of Louisiana. Thank you very much.
Thank you all for being here.
I want to just follow up on a little bit of what a couple
of my colleagues have pointed on, just with regard to the
idea--the general idea of separation of powers. I had a couple
questions for Mr. Wheeler.
Based on your time on the Breyer Committee and the Federal
Judicial Center, how do you explain this to a layman, you know,
to a nonlawyer? Does the Congress have the constitutional
authority to force the Supreme Court to adopt a code of
conduct?
Mr. Wheeler. I would probably want to yield to my
colleagues, both of whom teach constitutional law, but on the
face of it, I think it does have the authority to require the
Court to adopt a code of conduct. I just think as a practical
matter, it would be much better if the Court were to do it on
its own. I can't add much to that.
Mr. Johnson of Louisiana. Before you yield to the other
scholars, let me ask you this. You cited, I think, in your
written statement a 2011 year-end report that was authored by
Chief Justice John Roberts. And in that report, Justice Roberts
discussed the constitutionality of Congress creating a set of
ethics for lower courts, but he made the point that it was per
the enumerated powers under Article III.
And I wonder if you could expand on the concept of lower
courts being created by Congress and some of the constitutional
reasonings for why a code that was designed for lower courts
may not necessarily apply to the Supreme Court.
Mr. Wheeler. What Chief Justice Roberts said in the 2011
year-end report was, as Professor Geyh has said, we really
don't know whether or not Congress has the authority to impose
these things on the Supreme Court. It hasn't been tested. But
his basic argument was that the Constitution created a Supreme
Court. That puts it in a different posture than the so-called
lower courts, which are created by Congress pursuant to
constitutional authorization, and that is where he left it. And
you can get scholars on both sides to examine whether or not
that is really a sound analysis.
Mr. Johnson of Louisiana. Okay. One more.
In your testimony you stated that often the reasons for
recusal are fairly obvious and requiring reasons for all
recusals could start judicial ethics regulation down a slippery
slope because the reasons could involve delicate personal
matters. Mr. Reschenthaler was referencing some of that.
What do you think would be the benefit of making a judge's
personal matters public like that? I know there is a lot of
concern about it.
Mr. Wheeler. I can't see any particular benefit in making
details of some sort of salacious interchange that a judge or
the judge's spouse had, I can't see any benefit of that.
Let me add one thing, though. You know where this whole
question of recusal is really being wrestled with is in the
States, the States, partly because of the conflicts created by
judicial campaigning and financing.
But beyond that, I think the States--some of the States,
like Texas, are really looking very seriously about recusal
policies. And I think it would behoove the Federal courts and
the Congress to look at what the States are doing, because they
are being very creative and very thoughtful in their analysis
of this whole matter.
Mr. Johnson of Louisiana. This is sort of a follow-up on
that, but, I mean, I was a practicing attorney for 20 years,
and it seems to me that there would be a risk you could open a
Pandora's box if you start making publicly available
explanations for recusal. I mean, attorneys might abuse that.
They might take the explanations to attempt to disqualify a
judge they deem unfavorable. And you could see how that
information could be misused, I think. So that is one of the
concerns. Would you agree?
Mr. Wheeler. Well, no, that is one of those difficult
questions of balancing a couple of competing valid interests. I
have said, I am on the record of saying I think, by and large,
judges ought to state the reasons for their recusal, and there
are several reasons for that. Transparency, for appellate
review and also to create a common law recusal.
But I think there is a difficult matter in this rather
narrow range of personal and perhaps salacious information that
judges might not want to reveal, so that they are at the risk
of not recusing when they should.
Mr. Johnson of Louisiana. Go ahead.
Mr. Roth. Just recently there was a judge in the Fifth
Circuit who recused on a case, James Ho, and there was this
uproar on the left: Oh, he is recusing because he has got a--
no, it is because his former--it took a little while to find
out, but we learned that it was because his former law firm was
involved in the case and it sort of tamped down that
partisanship.
So I think there is sort of that positive, like, let's calm
down, they are not abusing the system, but we just don't know
about it, so certain elements among us are going to assume the
worst.
Mr. Johnson of Louisiana. That is well said.
Professor Geyh, in your written testimony you stated that
the subcommittee should not pass legislation imposing a code of
ethics of its own, nor should we direct the Judicial Conference
to issue a code of conduct applicable to the justices. Why is
the Judicial Conference not the appropriate mechanism to
regulate the Supreme Court?
Mr. Geyh. Because the Judicial Conference is responsible
for governing lower court judges, and they, in effect, justices
of the Supreme Court oversee those lower Judicial Conference
judges both as designated supervisors of their circuits and as
a high court. And so to me I think it is just a poor idea to
have the supervisees regulate the ethics of the supervisors.
Mr. Johnson of Louisiana. I tend to agree.
I will yield back. Thank you.
Mr. Johnson of Georgia. Thank you.
I next recognize the gentleman from California, Mr. Correa,
for 5 minutes.
Mr. Correa. Thank you, Mr. Chairman. I want to thank you
very much for holding this most important hearing.
I want to thank our witnesses for being here today.
Checks and balances, a third branch of government, is so
darn critical, especially in these times when the executive
and, of course, our legislative branch are debating issues.
Question to all of you with reference to financial
disclosure. I hear what you are saying with reference to self-
policing. To my knowledge, there is no financial disclosures
right now online by members of the Supreme Court. Is that
correct?
Mr. Roth. Just the ones that I have put there myself on
fixthecourt.com, but I had to get them and jump through hoops
to get them.
Mr. Correa. And I think my thought is, look, as a person
who has been in elected office for a number of years, I do a
lot of work to make sure I am fully transparent. I even go
further than what is required by the law to make sure that I
comply with every nuance of the law when it comes to financial
transparency. It guides me in terms of where I invest my
personal resources, because I try to avoid conflict of
interests, to the best of my ability.
You said what is disclosed is what you put online, yet in
campaigning there are enough people doing op research out there
that essentially know what every justice owns, what they do.
And to me the thought of, okay, it should be very simple
and just, you know, self-police, I don't know who writes the
letter or signs the letter to the Supreme Court saying: Please
write your own code of ethics. We have got to figure that one
out.
But number two is, what is the downside to having full
disclosure? Haven't done it. There has got to be a reason.
It is very uncomfortable, I know. But it should be done.
Why?
Mr. Geyh. Well, the reason that has been offered here is
private information can jeopardize the judge's safety, and my
answer to that is you have redaction.
Mr. Correa. But to me it is already there. I mean, you just
have an op research person who can put this stuff out.
Mr. Geyh. Maybe so, but I do understand we are identifying,
for example, relatives and family members of judges who could--
that you redact those, but then you do post it publicly.
I mean, to me the problem is we are having this odd--I
mean, to me it is a rather odd argument that we are having
because, as a practical matter, these things are posted online.
It is just they are being posted by him instead of by the
Court.
And so why--what is the privacy problem with having the
Court just do it? I mean, post the same things they give to
him. And I don't see, if they carefully redact all sensitive
information and just publish the stuff that needs--that the
public has a right to see, then why online is a problem I just
don't get.
Mr. Correa. So I am not missing something?
Mr. Geyh. I don't think so.
Mr. Correa. We are not missing anything?
Ms. Frost. I just want to add that there has been now a
number of comments about how making publicly available reasons
for recusal and possibly also some of the financial data could
be manipulated or abused by lawyers who are practicing before
judges and maybe trying to select a judge. There are two quick
points. One is----
Mr. Correa. But you can do that already?
Ms. Frost. Well, yes. One is, we can do that already.
Mr. Correa. If it is a big case, you are going to do your
own research, op research, and say, hey----
Ms. Frost. And, second, even if you get a judge recused,
you cannot then pick the replacement judge.
And third, Rule 11 of the Federal Rules of Civil Procedure
provides an ability to sanction lawyers who take action for
improper purposes, and this would be a classic example of that.
So all of those things, I think, protect.
Mr. Correa. Further comments?
Mr. Chairman, I just would like to nominate you to write
that letter to the Supreme Court asking that they adopt rules
of ethics.
With that, I yield the remainder of my time. Thank you.
Mr. Johnson of Georgia. I thank the gentleman.
And with that, our hearing today is concluded. Thanks to
our distinguished witnesses for appearing and testifying.
Without objection, all members will have 5 legislative days
to submit additional written questions for the witnesses or
additional materials for the record.
The hearing is adjourned.
[Whereupon, at 10:35 a.m., the subcommittee was adjourned.]
APPENDIX
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