    [House Hearing, 117 Congress]
    [From the U.S. Government Publishing Office]

     JUDICIAL ETHICS AND TRANSPARENCY: THE LIMITS OF EXISTING STATUTES AND
                                     RULES

    =======================================================================

                                    HEARING

                                   BEFORE THE

        SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

                                     OF THE

                           COMMITTEE ON THE JUDICIARY

                         U.S. HOUSE OF REPRESENTATIVES

                        ONE HUNDRED SEVENTEENTH CONGRESS

                                 FIRST SESSION

                                   __________

                           TUESDAY, OCTOBER 26, 2021

                                   __________

                               Serial No. 117-44

                                   __________

             Printed for the use of the Committee on the Judiciary

     [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                   Available via: http://judiciary.house.gov

                              ______

                 U.S. GOVERNMENT PUBLISHING OFFICE
    48-511                WASHINGTON : 2022

                           COMMITTEE ON THE JUDICIARY

                        JERROLD NADLER, New York, Chair
                    MADELEINE DEAN, Pennsylvania, Vice-Chair

    ZOE LOFGREN, California              JIM JORDAN, Ohio, Ranking Member
    SHEILA JACKSON LEE, Texas            STEVE CHABOT, Ohio
    STEVE COHEN, Tennessee               LOUIE GOHMERT, Texas
    HENRY C. ``HANK'' JOHNSON, Jr.,      DARRELL ISSA, California
        Georgia                          KEN BUCK, Colorado
    THEODORE E. DEUTCH, Florida          MATT GAETZ, Florida
    KAREN BASS, California               MIKE JOHNSON, Louisiana
    HAKEEM S. JEFFRIES, New York         ANDY BIGGS, Arizona
    DAVID N. CICILLINE, Rhode Island     TOM McCLINTOCK, California
    ERIC SWALWELL, California            W. GREG STEUBE, Florida
    TED LIEU, California                 TOM TIFFANY, Wisconsin
    JAMIE RASKIN, Maryland               THOMAS MASSIE, Kentucky
    PRAMILA JAYAPAL, Washington          CHIP ROY, Texas
    VAL BUTLER DEMINGS, Florida          DAN BISHOP, North Carolina
    J. LUIS CORREA, California           MICHELLE FISCHBACH, Minnesota
    MARY GAY SCANLON, Pennsylvania       VICTORIA SPARTZ, Indiana
    SYLVIA R. GARCIA, Texas              SCOTT FITZGERALD, Wisconsin
    JOE NEGUSE, Colorado                 CLIFF BENTZ, Oregon
    LUCY McBATH, Georgia                 BURGESS OWENS, Utah
    GREG STANTON, Arizona
    VERONICA ESCOBAR, Texas
    MONDAIRE JONES, New York
    DEBORAH ROSS, North Carolina
    CORI BUSH, Missouri

            PERRY APELBAUM, Majority Staff Director & Chief Counsel
                   CHRISTOPHER HIXON, Minority Staff Director
                                     ------

               SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND
                                  THE INTERNET

                 HENRY C. ``HANK'' JOHNSON, Jr., Georgia, Chair
                      MONDAIRE JONES, New York, Vice-Chair

    THEODORE E. DEUTCH, Florida          DARRELL ISSA, California, Ranking
    HAKEEM JEFFRIES, New York                Member
    TED LIEU, California                 STEVE CHABOT, Ohio
    GREG STANTON, Arizona                LOUIS GOHMERT, Texas
    ZOE LOFGREN, California              MATT GAETZ, Florida
    STEVE COHEN, Tennessee               MIKE JOHNSON, Louisiana
    KAREN BASS, California               TOM TIFFANY, Wisconsin
    ERIC SWALWELL, California            THOMAS MASSIE, Kentucky
    MONDAIRE JONES, New York             DAN BISHOP, North Carolina
    DEBORAH ROSS, North Carolina         MICHELLE FISCHBACH, Michigan
    JOE NEGUSE, Colorado                 SCOTT FITZGERALD, Wisconsin
                                         CLIFF BENTZ, Oregon

                          JAMIE SIMPSON, Chief Counsel
                         BETSY FERGUSON, Senior Counsel
                                C O N T E N T S

                                  ----------

                           Tuesday, October 26, 2021

                                                                       Page

                               OPENING STATEMENTS

    The Honorable Henry C. ``Hank'' Johnson, Jr., Chair of the
      Subcommittee on the Courts, Intellectual Property, and the
      Internet from the State of Georgia.............................     2
    The Honorable Darrell Issa, Ranking Member of the Subcommittee on
      Courts, Intellectual Property, and the Internet from the State
      of California..................................................     3
    The Honorable Jerrold Nadler, Chair of the Committee on the
      Judiciary from the State of New York...........................     4

                                   WITNESSES
                                    Panel I

    Renee Knake Jefferson, Professor of Law, Joanne and Larry Doherty
      Chair in Legal Ethics, and Director, Law Center Outcomes and
      Assessments, University of Houston Law Center
      Oral Testimony.................................................     7
      Prepared Statement.............................................     9
    Dylan Hedtler-Gaudette, Government Affairs Manager, Project on
      Government Oversight
      Oral Testimony.................................................    16
      Prepared Statement.............................................    18
    Thomas D. Morgan, Oppenheim Professor Emeritus of Antitrust and
      Trade Regulation Law, George Washington University Law School
      Oral Testimony.................................................    26
      Prepared Statement.............................................    28
    Jamal Greene, Dwight Professor of Law, Columbia Law School
      Oral Testimony.................................................    35
      Prepared Statement.............................................    37

                                    Panel II

    The Honorable Jennifer Walker Elrod, Circuit Judge, United States
      Court of Appeals for the Fifth Circuit
      Oral Testimony.................................................    62
      Prepared Statement.............................................    64

                                    APPENDIX

    Materials submitted by the Honorable Henry C. ``Hank'' Johnson,
      Jr., Chair of the Subcommittee on Courts, Intellectual
      Property, and the Internet from the State of Georgia, for the
      record.........................................................
      A letter from Rakim Brooks, President, Alliance for Justice....    88
      A statement from Michael Lissner, Executive Director, Free Law
        Project......................................................    90
      A letter from Sheri Chesher....................................    97

     JUDICIAL ETHICS AND TRANSPARENCY: THE LIMITS OF EXISTING STATUTES AND
                                     RULES

                                  ----------

                           Tuesday, October 26, 2021

                            House of Representatives

                 Subcommittee on Courts, Intellectual Property,

                                and the Internet

                           Committee on the Judiciary

                                 Washington, DC

        The Subcommittee met, pursuant to call, at 2:04 p.m., in
    Room 2141, Rayburn House Office Building, Hon. Henry C.
    ``Hank'' Johnson, Jr. [Chair of the Subcommittee] presiding.
        Present: Representatives Johnson of Georgia, Nadler, Jones,
    Lieu, Stanton, Lofgren, Cohen, Ross, Johnson of Louisiana,
    Massie, Bishop, Fischbach, Fitzgerald, and Bentz.
        Staff Present: David Greengrass, Senior Counsel; Moh
    Sharma, Director of Member Services and Outreach & Policy
    Advisor; Cierra Fontenot, Chief Clerk; John Williams,
    Parliamentarian; Atarah McCoy, Staff Assistant; Merrick Nelson,
    Digital Director; Matt Robinson, Counsel; Rosalind Jackson,
    Professional Staff Member/Legislative Assistant; Betsy
    Ferguson, Minority Senior Counsel; Ken David, Minority Counsel;
    and Kiley Bidelman, Minority Clerk.
        Mr. Johnson of Georgia. The Subcommittee will come to
    order. Without objection, the Chair is authorized to declare a
    recess of the Subcommittee at this time. We welcome everyone to
    today's hearing on Judicial Ethics and Transparency: The Limits
    of Existing Statutes and Rules.
        Before we begin, I would like to remind Members that we
    have established an email address and distribution list
    dedicated to circulating exhibits, motions, or other written
    materials that Members might want to offer as part of our
    hearing today. If you would like to submit materials, please
    send them to the email address that has been previous the
    distributed to your office and we will circulate the materials
    to Members and staff as quickly as we can.
        I would also ask all Members to mute your microphones when
    you are not speaking. This will help prevent feedback and other
    technical issues. You may unmute yourself any time you seek
    recognition.
        I would also ask all Members with direct questions to Mr.
    Hedtler-Gaudette, who is on our first panel of Witnesses to
    please identify yourself when asking a question. Also, if you
    use any kind of visual aid during your remarks or while you are
    asking questions to Mr. Hedtler-Gaudette, please describe that
    visual.
        Finally, I would like to add that Professor Greene must
    leave by 4:45 p.m., so please prioritize your questions to
    Professor Greene to the extent necessary. I will now recognize
    myself for an opening statement.
        Good afternoon, and welcome, Witnesses, to today's hearing.
    I didn't have a chance to greet you all personally before the
    hearing, but please accept this as my humble offer. We are here
    today to explore and to consider disturbing facts that have
    been brought to light by recent reporting about the failure of
    Federal judges to recuse themselves in cases where they or
    their family held a financial interest. We will also examine
    how the laws and rules currently on the books have fallen short
    and failed to prevent the circumstances exposed in that
    reporting. Central to our discussion today will be the
    appearance of impropriety and the appearance of impartiality,
    which is an essential component of our constitutional system of
    justice. Justice John Marshall Harlan, the great dissenter,
    said that, quote, ``the appearance of evenhanded justice is at
    the core of due process,'' end quote.
        Appearances matter. It is in the appearance of impartiality
    that Americans find faith in their courts and trust in their
    democracy. That is one reason why the recent reports from The
    Wall Street Journal exposing numerous instances where judges'
    decisions have appeared to be biased or partial, or improperly
    influenced by their financial interests are so disheartening.
    The damage has been done. Federal judges did not follow the
    law. We do not know whether any judge specifically acted to
    benefit his or her ownership interest, but the appearance of
    impropriety has already tainted their judgments.
    Notwithstanding any actual undue influence, the fact that the
    130-plus judges profiled in The Journal appear as if they might
    have acted with their pecuniary interest in mind is enough to
    shake the public's confidence in the United States Judiciary.
    This is especially frustrating because the judges at the center
    of this expose failed to meet the very modest demands placed on
    them by their lifetime tenure in the Federal courts.
        The Executive and Legislative Branches are subject to
    expensive and frequent financial reporting requirements, as
    well as strict ethical rules on matters on which they have a
    financial interest. For judges, the bar is much lower. Judges
    need only disclose limited information about their finances
    once a year, and then recuse themselves from any cases in which
    they have a financial interest. The recusal is critical, and
    the recusal is where these judges broke the law. The Supreme
    Court has described the statutory requirement for judicial
    recusal as, quote, ``steps necessary to maintain public
    confidence in the impartiality of the Judiciary,'' end quote.
    Yet, what The Journal has shown us are judges deciding cases
    while being part owners of the parties in front of them,
    trading, and profiting on trades of shares of those parties. In
    at least one instance, making a ruling in favor of those
    parties which was later overturned on appeal. These failures to
    recuse were not isolated cases, nor were they limited to
    individual judges.
        The Journal reported on 131 Federal Judges participating in
    685 cases in which they had a financial interest, 61 judges
    actively traded stocks in the companies before them while their
    cases were pending. Fully one-fifth of the judges who had
    disclosed their financial interest decided a case in which that
    interest was implicated, one-fifth. These concerns were not
    limited to the lower courts.
        The Supreme Court is not bound by a code ethics to protect
    its Members from the appearance of impropriety, which was the
    subject of legislation I introduced last Congress, and which I
    plan on reintroducing soon.
        Today, we learn more about what Congress can do to make
    sure that Members of our Judiciary take the steps necessary to
    avoid violating the recusal statute and the troubling
    appearances of impropriety that result.
        I am proud to join my esteemed colleague, Ms. Ross, in
    introducing the Courthouse Ethics and Transparency Act, which
    would address head on many of these lapses in regulations
    surfaced by The Journal's reporting. These reforms are critical
    to maintaining the public's confidence in the decisions and in
    the authority of the courts. That brings us to our
    distinguished panelists. Our first panel is comprised of
    experts and advocates in the fields of judicial ethics, and
    transparency, and constitutional law, who will enlighten us on
    the legal and constitutional issues involved in restoring and
    maintaining the strength of the Federal Judiciary, particularly
    the public's perception of judges' legitimacy and impartiality.
        We will then be joined by a member of the Federal
    Judiciary, and a leader in the Judicial Conference, the body
    that is responsible for guiding and assisting judges in the
    satisfaction of their statutory responsibilities.
        Thank you, and I look forward to your testimony. It is now
    my pleasure to recognize the Ranking Member of the
    Subcommittee, the gentleman from California, Mr. Issa, for his
    opening statement.
        Mr. Issa. Thank you, Mr. Chair.
        It is somewhat less frequent than I would like for Members
    here on the dais to be in total agreement. Perhaps it is not
    surprising that we are in total agreement about what another
    branch of government should do. Just a few years ago, we came
    to an agreement on a bipartisan and bicameral basis on what
    came to be known as the STOCK Act. The fact is, we recognized
    that the ownership, either by ourselves or our family members,
    and or the trading needed to be not only eventually disclosed,
    but disclosed publicly in real time. That disclosure has given
    the public an opportunity to have greater confidence that what
    a Member is doing is, in fact, consistent with what they own
    and vice versa, that trades made on what might be inside
    information, are, in fact, discovered in a reasonable period of
    time.
        The public believes that which is made public is, in fact,
    that which keeps of private from inappropriately dealing. That
    is what we are discussing here today. It is likely to be, as
    the Chair said, a subject of real legislation to bind the
    article III, the third branch, to substantially the same rules
    as the other two branches are bound to. Some might say that the
    independence of the Judiciary would be tarnished, or, in some
    way, limited by the Congress mandating these rules for article
    III.
        Nothing could be further from the truth. The reality is
    that the judicial branch has not done for itself, it does so at
    the peril of its legitimacy. The regaining of the legitimacy by
    the Federal court system requires not only that the judges, but
    all the other key staff, just as in the House, just as in the
    Senate, just as in the Executive Branch that have access to
    inside information and might very well trade on it, be open and
    transparent. Anything less, I believe will, in fact, affect us
    adversely.
        There is a statement that we all heard, and we heard the
    Chair announce it, that it is the requirement of a judge to
    recuse himself. I disagree with that standard. I disagree with
    that standard vehemently. It is, in fact, the judge's
    responsibility to do so. If the judge does not do so, it is the
    right of the American people to insist, based on public
    disclosure, that the questioning of a judge be done
    proactively, in real time, in a way that would, in fact, allow
    what could be a long, expensive, laborious, and even capital
    decision to be made by an independent judge. You cannot unring
    a bell, and you cannot get an impartial hearing by a judge,
    even if it is done a second time there is considerable damage.
        So, Mr. Chair, I applaud you for holding this hearing. I am
    obviously predicting that we will act, and that it is likely
    that we will act consistent with the STOCK Act and other
    transparency rules that the other branches live under. I thank
    the Chair again for holding this hearing and agree completely
    with his opening statement.
        I yield back
        Mr. Johnson of Georgia. I thank the gentleman from
    California for his remarks.
        Next, I will recognize the Chair of the Full Committee, the
    gentleman from New York, Mr. Nadler, for his opening statement.
        Chair Nadler. Thank you, Mr. Chair Johnson, and Ranking
    Member Issa for holding this important hearing today.
        The Federal Judiciary is a pillar of our Nation's
    government, an institution nearly synonymous with withholding
    the rule of law. Congress, as a coequal 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 to safeguard judicial independence and
    maintain public confidence in our courts.
        Our Federal Judiciary is the envy of the world. Congress
    has a clear interest in ensuring that this hard-earned
    reputation is maintained. Today's hearing is a necessary part
    of that process. As mentioned by the Chair and Ranking Member,
    an investigation by a team of journalists at the The Wall
    Street Journal found that at least 131 Federal Judges appeared
    to have unlawfully and unethically failed to recuse themselves
    from cases which they and their families had a financial
    interest.
        Many judges even actively traded shares in the companies
    that were appearing before them as litigants. What The Journal
    uncovered appears to constitute a massive failure of not just
    individual judges, but of the entire system that is ostensibly
    in place to prevent this unlawful conduct.
        Troublingly, many judges simply refuse to comment on their
    apparent violations of the recusal of ethics laws. Others blame
    their clerks, their conflict checking software, or even the
    litigants themselves. Other judges, however, were clearly
    aghast that they missed the financial conflict of interest and
    welcomed the opportunity to try to make things right.
        One judge put it best when he said, ``I just blew it. I
    regret any question that I have created an appearance of
    impropriety or a conflict of interest.'' He should be credited
    for his candor, because it reflects exactly the kind of
    integrity and clear sightedness that makes for an exceptional
    judge.
        With a problem that seems to be this widespread, it would
    be wrong to single out any one judge. To its credit, the
    administrator of the courts said that it took the matter
    seriously. It is clear that the safeguards in place to prevent
    this kind of misconduct are simply not up to the task. I hope
    the revelations uncovered by The Wall Street Journal's
    reporting will spark a thorough reexamine of these safeguards,
    especially since some of the weaknesses in the current system
    were already well-known.
        Two years ago, this Subcommittee held a hearing on judicial
    ethics and transparency that seems to have foretold many of the
    problems that The Wall Street Journal's reporting has brought
    to light. At that hearing, our distinguished Witnesses told us
    that Congress should require the judge's financial disclosure
    forms which are necessary to detect potential conflicts of
    interest be made publicly available in a searchable online
    database.
        Our Witnesses recommended that judges should be required to
    make the recusals publicly available, along with their reasons
    for recusing. Our Witnesses told us that attorneys were afraid
    to ask the judge to recuse themselves and recommended that a
    recused motion should be decided by a different judge or panel
    of judges. Our Witnesses told us that the judiciary's decisions
    regarding ethics and recusal must be made transparently and
    fairly.
        Our Witnesses also made clear that Congress has an
    obligation to act when the judiciary self-regulating efforts
    fall short. Last Congress I joined Chair Johnson and
    Representative Quigley in introducing the 21st Century Courts
    Act which included a range of reforms to the laws governing
    judicial ethics, recusal, and transparency.
        Many of the provisions in our bill drew from the Judiciary
    ROOM Act which Ranking Member Issa championed when he was Chair
    of the Subcommittee, and was passed by this Committee
    overwhelmingly. The Wall Street Journal's investigation and
    other events have made clear that those reforms are not only
    sorely overdue, but that they must be strengthened.
        I am hopeful that that today's distinguished Witnesses will
    provide us with excellent suggestions on what reforms to
    include in an updated version of the 21st Century Courts Act
    which we plan on reintroducing soon.
        I look forward to their testimony. I yield back the balance
    of my time.
        Mr. Johnson of Georgia. I thank the gentleman from New
    York.
        We will now turn to our Witnesses for our testimony. We
    will have two panels of Witnesses at today's hearing. The first
    is a panel of experts on judicial ethics and constitutional
    law. The second is a Member of the Judiciary. I will now
    introduce the first panel of Witnesses, but not before I remind
    Members that the guidance from the attending physician states
    that face coverings are required for all meetings in an
    enclosed space, such as Committee hearings, except when you are
    recognized to speak. I would ask my colleagues to comply with
    that rule.
        I will turn now to introducing the Witnesses.
        Professor Renee Knake Jefferson, holds the Larry Doherty
    Chair in Legal Ethics at the University of Houston Law Center.
    Professor Jefferson has been recognized both in the United
    States and abroad as an expert on professional responsibility
    and legal ethics. She regularly assists in legal matters in
    involving judicial ethics and has testified before the Texas
    Supreme Court of review on this issue.
        Professor Jefferson earned her B.A. in communications from
    North Park college in Chicago, Illinois, and a J.D. from the
    University of Chicago Law School. Welcome, Professor Jefferson.
        Dylan Hedtler-Gaudette is a government affairs manager at
    Project on Government Oversight where he champions good
    government policy solutions, such as judicial ethics and
    transparency. Mr. Hedtler-Gaudette is an expert on both
    judicial ethics and institutional reform. His work is
    frequently cited in popular nationwide news outlets. Mr.
    Hedtler-Gaudette has his undergraduate degree in political
    science and economics from the University of Southern Maine,
    and his master's in international relations from Northeastern
    University. Welcome, Mr. Hedtler-Gaudette.
        Professor Thomas Morgan teaches professional responsibility
    and antitrust law at George Washington Law School. Professor
    Morgan has published numerous articles on professional
    responsibility and legal ethics. Before teaching at GW Law,
    Professor Morgan served as Dean the Emory University School of
    Law, and as a President of the Association of American Law
    Schools. Professor Morgan has his B.A. from Northwestern
    University, and J.D. from the University of Chicago. Welcome
    Professor Morgan.
        Professor Jamal Greene is the Dwight Professor of Law at
    Colombia Law School. He specializes in constitutional law,
    constitutional theory, and the Federal courts. Professor Greene
    authored a book released earlier this year and has written
    numerous law review articles and publications such as the
    Harvard Law Review and Colombia Law Review. His nonacademic
    work has been featured in many national publications.
        Before joining academia, Professor Greene served as a law
    clerk to Judge Guido Calabresi on the Second U.S. Circuit Court
    of Appeals, and to Judge John Paul--Justice John Paul Stevens
    on the United States Supreme Court. Professor Greene has a B.A.
    from Harvard College and a J.D. from Yale Law School. Welcome,
    Professor Greene.
        Before proceeding with your testimony, I hereby remind each
    Witness that all 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. 1001, which may
    result in the imposition of a fine or imprisonment of up to
    five years or both, should one suffer a conviction. Please note
    that each of your written statements will be entered into the
    record in its entirety. Accordingly, I ask that you summarize
    your testimony in five minutes. To help you stay within that
    time, there is a timing light on your table. When the light
    switches from Greene to yellow, you have one minute to conclude
    your testimony. When the light turns red, it means that your
    five minutes have expired.
        Professor Jefferson, you may begin.

                   STATEMENT OF RENEE KNAKE JEFFERSON

        Ms. Jefferson. Chair Johnson, Ranking Member Issa, and
    Members of this Subcommittee, thank you for the invitation to
    testify. I am a law professor from the University of Houston,
    where I hold the Doherty Chair in Legal Ethics. I have written
    numerous books and articles on the topic of judicial ethics.
    So, it is indeed my distinct honor to appear before you today.
    My goal is to make the case for a change in the culture of the
    Federal judiciary, shifting from a culture of silence to a
    culture of compliance.
        My testimony has two parts: First, I will start by
    addressing the recent Wall Street Journal investigation
    documenting that Federal judges presided over hundreds of cases
    for almost a decade involving companies in which they or their
    family members own stock. This violation of Federal law 28
    U.S.C. 455 is troubling indeed, but I actually believe that it
    is emblematic of a larger issue.
        Second, I will turn to reforms. My written testimony
    contains a significant detail about the legislative history of
    section 455. The short story, Congress clearly intended to
    create a bright line rule mandating that a Federal judge recuse
    or step away from hearing a case if they have a financial in a
    party. So why are judges doing this if the law forbids it? We
    know from The Wall Street Journal reporting that many were
    unfamiliar with the rule, some believed it didn't apply to
    their financial holdings, others blamed a clerical error.
        Viewed in isolation, each judge's response might be
    understandable, especially those who made an innocent mistake.
    Viewed in the aggregate, we can reach no other conclusion than
    the system is broken. That leads me to the second part of my
    testimony, reforms.
        Let me highlight what I have submitted to you in my written
    statement.
        First, consider the goals of recusal.

            (1) LRecusal prevents actual bias against the parties
            in a proceeding so that it is fair.
            (2) LSecond, recusal protects against the appearance of
            bias, which preserves the public confidence in the
            Judiciary.

        Now, section 455 is both under and over inclusive in
    accomplishing these goals, and that this bright line rule does
    risk disqualifying a judge who would not, by any objective
    standard, be biased because they hold a trivial amount of
    stock. It also doesn't encompass other financial interests that
    are likely or may very well sway a judge.
        At a minimum, the law should be revised to cover any
    interest it depends on the financial situation of a party in
    the matter. Federal Judges should comply with the same
    reporting requirements that Members of Congress and other
    Federal officials do about their financial holdings.
        Second, we shouldn't have to rely on journalists for the
    enforcement of judicial ethics. Although, certainly, we should
    welcome investigations like The Wall Street Journal's
    reporting. I believe the Federal Judiciary must itself lead in
    enforcing its own legal and ethical obligations. Congress can
    and should take steps to encourage and demand these
    accountabilities which brings me to my next point. A rule on
    the books is easily ignored if there is no consequence for its
    violation as is the case here.
        Recusal decisions should be reviewed by other judges and
    transparent aggregated data about recusals made easily
    available to the public at no cost would be a powerful
    enforcement tool, so would a public list of judges who failed
    to comply with the law. Access to this sort of information,
    facilitates prevention through accountability and through
    education.
        Finally, the culture of silence must be replaced with a
    culture of compliance. Federal judges are intimidating. Parties
    may be reluctant to request recusal. A March 2020 letter by
    this House Committee documented the power dynamic that thwarted
    sexual misconduct reporting within the Federal Judiciary. Those
    same power dynamics have fostered a culture of silence around
    judicial recusal.
        Another vital step is to extend that culture of compliance
    to the United States Supreme Court. Because the court has
    declined to adopt an ethics code for itself, Congress should
    support legislation calling for it do so.
        Thank you again for the opportunity to appear before you
    today. I welcome your questions.
        [The statement of Ms. Jefferson follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Johnson of Georgia. Thank you, Professor Jefferson.
        Mr. Hedtler-Gaudette, you may begin, sir, for five minutes.

                  STATEMENT OF DYLAN HEDTLER-GAUDETTE.

        Mr. Hedtler-Gaudette. Thank you, Mr. Chair. I have one
    quick request, please, if someone could orally let me know when
    I reach the point where the light would be switching to a
    different color. That is a wonderful invention, but it is not
    very useful for me. I want to make sure that I stay within the
    five-minute parameters.
        Mr. Johnson of Georgia. I will. If you hold on a second, we
    will reset the clock. I will let you know when one minute is
    remaining.
        Mr. Hedtler-Gaudette. Thank you.
        Mr. Johnson of Georgia. You may now begin.
        Mr. Hedtler-Gaudette. Thank you, Chair Johnson, Ranking
    Member Issa, and distinguished Members of the Committee. My
    name is Hedtler-Gaudette and I am the government affairs
    manager for the project on government oversight, more commonly
    known as POGO.
        I want the first start by commending the Committee for
    holding this important hearing on this important topic. The
    north star of my testimony today will be the need to ensure the
    legitimacy, the independence, and the integrity of the Federal
    judiciary by promoting commonsense, reasonable reforms.
        As one of three branches of government in our
    constitutional structure, it is absolutely essential that the
    Federal judiciary be accountable, transparent in practice, but
    also, that it be perceived to be accountable and transparent by
    the public. You see the courts have no army with which to
    enforce their rulings. They do not control key levers of power,
    such as the power of the purse, and the power to declare war.
    What they do have is their legal and moral authority. That
    authority is predicated on foundational public assumptions of
    impartiality, high ethical standards, and good judgment.
        When any of these requisite characteristics are lacking,
    either in reality or in perception, the entire edifice of the
    judiciary and of the rule of law is fundamentally weakened.
    This is why it was so troubling to see a recent Wall Street
    Journal report in which we found out that more than 130 Federal
    judges had ruled on cases in which either they, or members of
    their family, had a financial interest, which represents a
    grave violation of existing laws around judicial
    disqualification, and also a grave violation of core principles
    contained within the canons of judicial ethics. Even more
    importantly, what these revelations did is they exacerbated and
    fed into preexisting public perceptions about the fundamental
    corruption of the Federal Government, which includes the
    Federal courts.
        I want to pause here for a moment to note that while these
    Wall Street Journal revelations are shocking, they were not
    especially new. For years now, we have seen reports coming out
    of the Judiciary about various kinds of misconduct, real and
    perceived, ranging from suspicious stock ownership and travel
    by Supreme Court Justices, to sexual harassment and other
    workplace maleficence being perpetrated by Federal judges
    across the country.
        One of the key reasons why these instances keep cropping up
    is because the Judicial Branch on the whole is the least
    transparent and least accountable branch of government. Take,
    for example, financial disclosures. It is extremely difficult
    and time-consuming to access financial disclosures that have
    been filed by Federal judges. Relatedly, Federal judges are not
    required to file periodic transaction reports when they engage
    in a securities transaction, such as a stock trade, despite the
    fact that Members of Congress and Executive Branch officials
    are required to file such reports.
        These transparency and disclosure requirements are designed
    to promote high ethical standards, and prevent malfeasance,
    like insider training on the part of individuals, within
    government, who have access to the types of nongovernmental
    information that the rest us do not have. I think it is fair to
    say that Federal judges most certainly have access to this kind
    of information.
        This lack of transparency and the impunity that flows it
    represents an existential risk to the overall legitimacy of the
    judicial branch. As I mentioned at the outset of my testimony,
    it is that legitimacy that allows the courts to play the vital
    role that they must within our constitutional scheme. Each time
    a new report surfaces that calls into question the impartiality
    and the ethicality of a Federal judge, one more crippling blow
    has been dealt to that legitimacy.
        Now, there are many ideas percolating out there about how
    to address these challenges. I want to focus on two relatively
    narrow ones here that would specifically address the issues
    raised by The Wall Street Journal report.
        Mr. Johnson of Georgia. One minute.
        Mr. Hedtler-Gaudette. First, all Federal judges should be
    required to file periodic transaction reports when they engage
    in a securities transaction such as a stock trade.
        Second, all financial disclosure documents filed by Federal
    judges should be posted online and made easily accessible to
    the public. These reforms would not be a silver bullet, they
    would not fix all the challenges plaguing the Federal
    judiciary, they would, however, make the courts more
    transparent. That enhanced transparency would allow judges
    themselves and people with business before the courts to spot
    potential conflicts of interest and pursue accountability
    avenues as appropriate.
        Thank you for providing me space to share some thoughts
    today, and I look forward to answering your questions.
        [The statement of Mr. Hedtler-Gaudette follows:]

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        Mr. Johnson of Georgia. Thank you, Mr. Hedtler-Gaudette.
        Next, Professor Morgan. Members, I understand votes have
    been called, but we will get through the testimony and then we
    will recess for votes. Professor Morgan, you are recognized.
        Sir, please unmute. Sir, please unmute.

                     STATEMENT OF THOMAS D. MORGAN

        Mr. Morgan. Chair Johnson, I apologize. Ranking Member
    Issa, and distinguished Members of the Subcommittee, thank you
    for the opportunity to appear before you today.
        I offer the Subcommittee what I believe is a bit more
    positive news.
        First, the problem documented by The Wall Street Journal is
    one that people of all political persuasions should agree needs
    solution.
        Second, in my opinion, the solution does not have to be
    particularly complicated or costly. What the solution will
    require first and foremost, is that the judiciary focus on the
    fact that it has a real problem, and that it must take the lead
    in proposing and implementing solutions. Solving the problem
    should not be difficult. Every day, all over the country,
    American law firms of even moderate size undertake to determine
    whether they may or may not represent a potential new client
    consistent with the ethical rules against conflict of interest.
    Basically, what they have to do is compare the present and past
    clients of the law firm against the name of the potential new
    client, and the persons against which that client wants to
    proceed.
        Nobody can keep that information solely in their head. So,
    law firms, all of which have basically the same problem, have
    stimulated the production of a whole variety of software that
    can make the necessary comparisons, and recognize that the
    legal issues related to judicial recusal are different from
    attorney conflict of interest. Lost firm technology would
    require adaptation. I suggest that the objective of both
    systems, and the methodology of finding the right answer is
    likely to be substantially the same. The Judicial Conference of
    the United States is well aware of this software, of course,
    and has instructed judges to use it. The results of The Wall
    Street Journal survey, however, suggest the operation of the
    system today falls well short in practice.
        I would urge you to consider this system this way: Cases
    are normally assigned to judges only after passing through a
    court clerk's office. I suggest it should be at that point of
    entry that named parties in a case should be compared to the
    names of the companies and the judges--of which judges in the
    Judicial District or Circuit have a financial interest as shown
    on filings submitted by those judges.
        The fact that most cases today are filed electronically
    should make this software system comparison even easier. Only
    judges cleared as not required to recuse themselves should even
    be eligible for initial assignment to hear a case.
        The judges to whom a case is assigned should then have
    ultimate responsibility to do a final verification, and an
    ongoing verification of their eligibility to hear the case. The
    buck stops under the law with the judge, but he or she should
    have maximum help handling the system--the process right. Such
    a system can only be as good as the information you have on the
    judge's financial records or interests. I agree with the
    Witnesses that have said that you want to require timely, a
    quick reporting of any such transactions.
        To summarize what I am suggesting to the Subcommittee is
    that is that you should support efforts to help judges comply
    with the recusal rule rather than simply looking for broad
    scale solutions that perhaps suggest much more wrongdoing than,
    in fact, has occurred.
        I appreciate the opportunity to be before the Subcommittee
    and I forward look to your questions.
        [The statement of Mr. Morgan follows:]

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        Mr. Johnson of Georgia. Thank you, Professor Morgan.
        We will now recognize Professor Greene for five minutes.

                       STATEMENT OF JAMAL GREENE

        Mr. Greene. Thank you, Chair Johnson, Ranking Member Issa,
    and distinguished Committee Members. I am the Dwight Professor
    of Law at Columbia Law School where I teach and write in the
    areas of constitutional law and comparative constitutional law.
    I am not an expert in judicial ethics, but I have studied a
    number of questions around regulation of Federal courts.
        Congress has significant authority to apply ethics and
    disqualification rules to lower Federal court judges. It has
    used that authority for ages. My testimony addresses the
    constitutionality of applying a code of judicial conduct and/or
    disqualification rules to Justices of the Supreme Court and
    enforcing such a code and such rules against them.
        I conclude that Congress has broad constitutional authority
    to provide that ethics rules apply to Supreme Court Justices.
    That apart from impeachment, remedies for violating such rules
    may require that the Court itself sit at the top of the chain
    of enforcement.
        My testimony does not address whether assuming its
    constitutionality applying a code of conduct to the Supreme
    Court is necessary, is wise, or if so, what form it should
    ideally take. Before addressing the merits, it is important to
    make a preliminary point about the nature of the constitutional
    interpretive question. Some constitutional questions are best
    answered by direct reference to the text of the Constitution,
    others are best answered by reference to the prior opinions of
    the Supreme Court. Whether and how Congress may subject Supreme
    Court Justices, or, indeed, other Federal court judges to
    ethical rules, lends itself neither to interpretation via
    specific textual commands, nor interpretation via judicial
    presence.
        With limited exceptions, the text of the Constitution does
    not specify the ways in which Congress may regulate the
    behavior of Supreme Court Justices. Likewise, prior judicial
    precedence offers no specific guidance on the question of
    whether and how Congress may regulate the ethics of Supreme
    Court Justices.
        In the separation of powers area, government lawyers,
    scholars, courts, all have relied heavily on historical
    practice to work out the division of power between the
    different branches of government. This also means that the
    judiciary is not the sole source of interpretive wisdom around
    this set of questions. The considered view of Congress
    reflected in legislation bears significant interpreted weight
    and it always has. It is neither necessary nor appropriate to
    understand congressional power in this area solely, or even
    primarily through a prediction about how the current or a
    future Supreme Court would answer a particular question.
        In this area as in many others, Members of the legislature
    must reach their own judgments about what the Constitution
    permits.
        Any discussion of the power of Congress to regulate the
    behavior of Supreme Court Justices involves a two-pronged
    inquiry. There is an initial question of whether Congress had
    the power to impose rules of conduct on Justices of the Supreme
    Court. There is a second and a distinct question of what
    enforcement mechanisms Congress has the constitutional power to
    impose. On the first question, Congress has broad power to
    regulate the ethical practices of Justices. The constitutional
    source of that power is the necessary and proper clause, which
    has been read to give Congress broad power to order the Supreme
    Court's affairs. Congress has used this power to require
    Supreme Court Justices to sit on lower Federal courts, to set
    the size of the court, to impose quorum rules on the court, to
    define its term, to provide for the Supreme Courts building and
    staff, to assign a wide variety of roles to the Chief Justice
    of the United States, and to provide for a pension and
    seniority system that extends to Supreme Court Justices.
        Since 1948, Congress has used Necessary and Proper Clause
    power specifically to impose ethics requirements on Supreme
    Court Justices. Justices are required to swear a specific oath
    or affirmation wherein they pledge to, quote, ``do equal right
    to the poor and to the rich,'' and to act impartially. They are
    subject to a criminal prohibition on the practice of law. They
    are subject to disqualification and financial disclosure rules.
    There are statutory limits on their outside income.
        These rules have not been enforced in the past against
    Supreme Court Justices, but the structure of enforcement raises
    separate and distinct issues. The main constraint on
    enforcement is that current ethical rules applicable to Federal
    judges rely on adjudication by these judges themselves. There
    is a strong argument that lower Federal court judges cannot sit
    in ultimate judgment over the Supreme Court, which is a
    constitutionally superior body.
        The two most promising responses to this problem are either
    to have the court itself adjudicate ethics complaints for
    disqualification motions involving its Members, or to have the
    court sit as an appellate body over such complaints and motions
    after they are adjudicated by lower court judges.
        I look forward to the Committee's questions, thank you.
        [The statement of Mr. Greene follows:]

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        Mr. Johnson of Georgia. Thank you, Professor Greene. At
    this time, we will now recess for votes. I would expect that we
    should be back in this room, ready to commence this hearing
    again at about 3:30 p.m. So, I want to thank the Witnesses for
    their forbearance. I look forward to seeing you in about 45
    minutes. Thank you.
        [Recess.]
        Mr. Johnson of Georgia. This Committee meeting is called
    back to order. I would ask the Witnesses who are remote to open
    up your video line, and we will now begin with questions, and I
    will proceed under the five-minute rule, and I recognize myself
    for five minutes.
        During the period The Wall Street Journal analyzed, one in
    five Federal judges who disclosed holdings of any individual
    stocks unlawfully heard at least one case involving the
    companies whose shares that they owned, 20 percent.
        Mr. Hedtler-Gaudette, do those statistics surprise you, and
    if so, why do you think that the issue is so prevalent?
        Mr. Hedtler-Gaudette. Thank you, Chair Johnson. Those
    statistics do not surprise me, and they should not surprise
    anyone who has been watching and observing the Federal courts
    for any length of time. I mentioned in my oral testimony that
    the Federal Judiciary is the least transparent branch of
    government, and it is not surprising that, with that lack of
    transparency, we see violations of laws and protocols and
    rules.
        We have seen these kinds of reports before, too. There was
    recently an article in the North Carolina Law Review that
    raised up some of these same issues and pointed to similar
    statistics. In 2014, the Center for Public Integrity did a very
    good investigative deep dive into this exact issue, and they
    found that a couple--that 26 more judges had ruled on cases
    that they had a financial conflict of interest in.
        So, this is a longstanding and persistent issue, and I
    think it really speaks to the need to pursue reforms that would
    enhance and strengthen the integrity and the legitimacy of the
    courts. The way you do that is by ensuring that the public has
    faith and trust in the impartiality of Federal judges, and I
    think that faith and trust is fundamentally comprised and
    undermined as we see these reports continuously cropping up.
        Mr. Johnson of Georgia. Thank you. Thank you.
        Professor Jefferson, what other lessons should we draw from
    the fact that such a significant proportion of judges failed to
    abide by a clear statutory mandate to recuse themselves?
        Ms. Jefferson. Well, I will pick up on the previous
    comments and say that this is a longstanding problem. As I
    noted earlier, I don't think we want to be in a world where we
    rely on journalists to enforce judicial ethics, but that is
    what has happened here. Although, again, I think we need to
    welcome these kinds of investigations, and I commend the
    reporting.
        That the North Carolina Law Review study that was published
    in 2020, it documented, I believe, 200 instances that were
    similar where judges were hearing cases when they owned stock
    in parties. There is a law review article that I also cite in
    my written testimony that goes back to 2015 published in the
    Georgetown Journal of Legal Ethics dealing with these issues
    too, and so they have been with us for a long time.
        Let me just point out one anecdote though that, I think,
    goes to my overarching theme, which is that we need to shift
    from a culture of silence to a culture of compliance. It was
    significant to me not only that the North Carolina Law Review
    published this information, but when the scholars thanked the
    research assistants who worked on it, one of those research
    assistants asked to be unnamed for fear of upsetting a judge.
        I think we want a world where our judiciary welcomes it
    being brought to their attention if they are out of compliance
    with their ethics rules, not so that we can sanction and
    penalize our judges but so that we can work together to make
    sure they are complying with all their ethical obligations. It
    is the concern about the intimidation for fear of upsetting a
    judge that has perpetuated in part the very problem that we are
    here today confronting.
        Mr. Johnson of Georgia. Thank you. When The Journal
    reporters informed these judges of their violations many relied
    on a variety of excuses, that they were unaware of the trades,
    that the recusal list had misspellings that were missed by the
    judiciary's conflict screening software, that their trades
    resulted in losses, or that they had a hands-off role in
    trading. I am worried about what these judges' excuses reflect
    about the culture in the judiciary.
        Professor Jefferson and Mr.--well, you won't have time to
    answer within the five minutes, so I will just limit it to
    Professor Jefferson. Do you think that judges see these kinds
    of failures as harmless or just simply being no big deal?
        Ms. Jefferson. Well, I wouldn't want to presume to be in
    the mind of any of the judges in how they were responding. I
    can only take them at face value what they said in response to
    the reporters. You have read the reporting as well; some of
    them it seemed were not taking it seriously and did not think
    that it mattered or that the rule applied to them.
        I think that there are a few different tensions here. One
    is the fact that the American Bar Association's model code for
    judges has a different standard, and so perhaps some mistakenly
    thought the more liberal standard applied to them. The reality
    is, when Congress implemented 28 U.S.C. 455, the bright line
    prohibition, it was very clear what was intended, not only that
    judges not hear cases where they hold stock in parties or have
    a financial interest, no matter how small, but also Congress,
    in the legislative history, it reflects that they intended to
    have a higher standard than what the ABA had suggested in its
    model code.
        So, it is incumbent on our Federal judges to be aware of
    all the rules that apply to them, and my hope is that, through
    this hearing, through reporting and what we have seen, that we
    will be seeing a shift in the culture.
        Mr. Johnson of Georgia. Thank you. My time is expired.
        I will next turn to Mr. Bishop for five minutes.
        Mr. Bishop. Thank you, Mr. Chair.
        Professor Jefferson, yeah, I generally agree with the
    notions or the recommendations and the thoughts you have laid
    forth in your testimony, in particular the notion of a culture
    of compliance. I do have some--as someone who practiced law for
    a long time, I didn't encounter judges that I thought were
    making decisions based on their financial interest, and this
    disclosure requirement or disclose anything or to deal with any
    financial interest no matter how small, I think what happens is
    we end up giving the judiciary a Black eye in a way because it
    is almost an administrative task that doesn't really belie any
    interest, and they are just not aware of it, and so it ends up
    looking like there is this massive noncompliance, which is
    unfortunate.
        I also get why and your article made clear why there needs
    to be--why a per se, however small rule is out there.
        One question I had is: I noticed that one of the things
    that is talked about in reform is whether or not to publish all
    this information the same way my financial disclosure statement
    is published on a website. Can you offer any insight why that
    was not done when this was originally--when this scheme was
    originally set up of judges having to disclose internally or
    make the reports that somebody has got to ask for them, like
    you said?
        Ms. Jefferson. I don't have particular knowledge about the
    thinking behind the process for disclosures that was adopted
    for the Federal judiciary as compares to what you are required
    to do as a Member of Congress other than to note that the
    Federal judiciary is not included in the same law that requires
    you to disclose in the way that you do.
        If I may, I do agree that this bright-line rule will
    inevitably perhaps trip up someone who would have, as I said in
    my opening remarks, no actual bias in a case, but sometimes
    that is a tradeoff we have to make to have these clear-cut
    rules for eliminating the perception of bias.
        Mr. Bishop. Right.
        That makes some sense. One of the things you advocate is
    that there be complete disclosure, publication of this, right,
    that they be published in a website; somebody can download it
    anonymously and learn what the information is.
        Ms. Jefferson. Yes. So, I do believe that publicly
    available information, in particular about recusals, that is my
    focus. So, now, in terms of the--
        Mr. Bishop. How about the financial holdings?
        Ms. Jefferson. Yeah, in terms of the financial holdings,
    there may very well be reasons to limit the disclosure of that,
    but certainly not beyond the litigants and making it very
    easily available and readily available.
        Another one of the big issues for litigants is, because the
    Federal judiciary now only files annually, you can have a case
    proceed for a whole year before someone will even know that the
    judge that they have been before had an interest, and that is
    if, of course, it is a judge who is actually disclosing as they
    should be.
        Mr. Bishop. Yeah, okay. We will talk. I want to shift gears
    a little bit. Actually, I said, in my experience, I didn't see
    judges that I thought were doing things for financial interest.
    On the other hand, my experience and observation has been that
    the most extravagant expressions of bias have been partisan
    bias on the part of the bench.
        I was just looking, as we were sitting here, there was a--
    The Hill did a poll or reported a poll in 2018 that 66 percent
    of registered voters think that Federal judges were influenced
    by politics or that the rulings were based more and more on
    their political interests.
        Has there ever been any scholarship on the subject of
    whether judges, Federal judges are affected by ideology and
    whether that creates biases that they are not properly
    responding to?
        Ms. Jefferson. So, I think it is--well, recusal can apply
    beyond financial interests, to be sure, and we should be
    concerned and thinking about, any time a judge has an interest
    that hasn't been disclosed, that is going to either actually
    prejudice the litigants before the judge or create the
    impression of bias. So, that can be a financial interest; it
    can also be relationship based.
        In terms of partisanship, I read the same reports that the
    public absolutely believes that judges are driven by
    partisanship. You would think the Federal judiciary would be
    somewhat immune from that since Federal judges are appointed
    and not elected as many of our State judges are, but I don't
    have to tell this Committee that politics surrounds
    appointments just as much as it also surrounds elections.
        In terms of a difference, if we want to distinguish between
    these things, here, at least in this instance, we have
    individuals before judges and they have no idea that the judge
    has a financial interest in perhaps their opponent. So, the
    information hasn't even been disclosed, if a judge is perceived
    as having a particular political viewpoint, that is often or
    maybe more well known. So, that is one significant difference
    between what we are talking about here with respect to
    financial interests.
        Mr. Bishop. At least it is not concealed, is what your
    suggestion is.
        Ms. Jefferson. Exactly, yeah, and sunlight is the best
    disinfectant, right?
        Mr. Bishop. My time is expired. Thank you, ma'am.
        Mr. Johnson of Georgia. We will now proceed to the
    gentleman from New York for five minutes, Mr. Nadler.
        Chair Nadler. Thank you very much.
        Professor Jefferson, while judges owning individual stocks
    pose a problem under the Ethics in Government Act, in section
    455 obviously, judges are permitted to own mutual or index
    funds without having to recuse themselves. That approach would
    seem to avoid any public perception of impropriety because the
    public would rightfully not be concerned when judges do not
    know the companies in which they own stock. Why shouldn't
    Federal judges be limited to owning just mutual or index funds?
        Ms. Jefferson. I actually wouldn't disagree with that. I
    mean, that certainly would be one approach to handle this. Just
    as one approach is to prohibit owning a stock in a party that
    is in front of the judge deciding a matter; another approach
    would be to require all judges when they come to the bench to
    divest of individual holdings and to hold mutual funds or the
    like.
        Chair Nadler. I would think that that would be a superior
    route because it is proven impossible, despite the STOCK Act
    and various other acts that we have passed, to enforce the law,
    whereas mutual--requiring judges to own mutual or index funds,
    to put everything into mutual index funds would be self-
    enforcing.
        Ms. Jefferson. Yes. I am certainly not a financial advisor,
    but I am told that having mutual funds is still a wise
    investment. So, in terms of financial concerns that a judge
    might have that would dissuade someone who is well qualified
    from the bench from taking on that role, that would be an
    effective option.
        Chair Nadler. Thank you.
        Mr. Hedtler-Gaudette, this is Chair Nadler. I would like to
    pose a question to you. First, what do you think of the idea
    that we were just talking about of requiring the judges put
    everything into a mutual or index fund?
        Mr. Hedtler-Gaudette. Thank you, Chair Nadler. I think that
    would certainly be the cleanest way to address this issue,
    although as a reasonable intermediate first step, I think doing
    something like applying the STOCK Act and requiring online
    posting of all financial disclosures of Federal judges is a
    perfectly reasonable way to go.
        Chair Nadler. Can you tell me whether The Wall Street
    Journal's reporting is the first time we have heard about
    judges failing to abide by the law governing recusals and
    ethics and financial disclosure? Further, now that we have this
    reporting, is there any question that there are systemic
    problems that Congress and the judiciary need to address?
        Mr. Hedtler-Gaudette. I am sorry; can you repeat the
    question, Chair?
        Chair Nadler. Can you tell me whether The Journal reporting
    is the first time we have heard about judges failing to abide
    by the laws governing recusal, ethics, and financial
    disclosure? Further, now that we have this reporting, is there
    any question that there are systemic problems that Congress and
    the judiciary need to address?
        Mr. Hedtler-Gaudette. Ah. No, that was not the first time I
    had heard or we in the public had heard about those kinds of
    issues, and I think it absolutely points to a systemic,
    widespread pervasive issue. We often say that opacity plays
    midwife to impunity in the good government community, and I
    think there is no clearer emblem of that mantra than what
    happens in the Federal judiciary right now.
        Chair Nadler. Thank you very much.
        Professor Greene, first, would you comment on the idea of
    requiring all Federal judges to put any stocks they own into
    mutual or index funds?
        Mr. Greene. So, I don't have any specific comment on that
    proposal. All I would say is that, if the concern is about
    being influenced by one's particular holdings, that might be a
    solution. If the concern is that a holding might move markets
    in some way or something along those lines, it might be an
    incomplete solution. This isn't something that I have a deep
    opinion about.
        Chair Nadler. Does the fact that The Journal's reporting
    comes during an era of declining in trust in our institutions
    add urgency to the need to address these problems?
        Mr. Greene. Yes, absolutely. There is certainly a serious
    problem of the perceived legitimacy of the courts, and this
    kind of reporting certainly doesn't help.
        Chair Nadler. Given this context, what risks do we incur if
    Congress and the judiciary do not address the issues
    highlighted by The Journal's reporting?
        Mr. Greene. Well, the risk is continuing decline in the
    perceived legitimacy of the courts, which I think are affected
    by lots of things beyond individual financial issues like what
    was reported in The Journal, but this just adds to the problem.
        Chairman Nadler. Thank you. One issue that The Journal's
    reporting was unable to determine was whether these judges'
    rulings were influenced by their own financial stakes in the
    case. Even so, these episodes obviously are problematic.
        Professor Jefferson, how would you respond to someone who
    said that, because there was no evidence that a judge made a
    ruling to boost the value of his or her stock or sold a stock
    before making a ruling that hurt the value of theirs, the
    misconduct unearthed by The Journal actually is not
    particularly concerning?
        Ms. Jefferson. So, I guess I have two comments to that.
    First, even if a judge is not actually biased in a particular
    proceeding, the appearance of it, there is a harm to those
    individual litigants because they may not trust in the fairness
    of it, and then there is also a public perception harm in the
    legitimacy of the court.
        Related to this, I would also say that, in thinking about
    the perceived harm, it is bigger than the public perception and
    the individual harm to the litigants in that we have a law on
    the books that Federal judges have not complied with.
        So, if we don't think they should have to comply with this
    law because this law actually doesn't do anything about
    addressing either the actual harm to litigants or the
    appearance of harm to litigants because of their bias, then we
    should not have this law on the books.
        In the meantime, when it is there--I mean, we all should
    follow our laws until they are changed or are appropriately
    challenged in our court system, right, but if anyone should be
    following the law, I would think that the public would expect
    our judges to be following the law.
        Chair Nadler. Thank you very much.
        My time has expired, and I yield back.
        Mr. Johnson of Georgia. The gentleman from California, Mr.
    Issa, is now recognized for five minutes.
        Mr. Issa. Thank you, Mr. Chair.
        My first question is for all. Is there any of our four
    panelists that believe that judges, Federal judges, should be
    above the law, as was alluded to by Ms. Jefferson?
        Hearing none, we will assume that judges should, in fact,
    obey every law that they know to exist, and they should know to
    exist better than the average person in society.
        The second one, there was a lot of discussion in the
    openings--in the testimony of the constitutional question, and
    so I will start with Ms. Jefferson. Our statutes that have to
    do with disclosure and recusal, do those exist for purposes of
    regulating the judges, or do those exist for protection of the
    individual's right to an impartial arbitrator? Which is the
    actual right that is being protected?
        Ms. Jefferson. Yeah, so we are protecting the individual's
    right to due process and to a neutral decisionmaker. In terms
    of constitutional concerns about judicial independence or
    interference between one branch and another, the Constitution
    is very clear that it is within Congress' ambit to make the
    kinds of reforms that I have been proposing here.
        Mr. Issa. So, following up on that, if what we are doing is
    protecting the individual, you have been saying, as have
    others, about the litigants. When it comes to the Supreme
    Court, when it comes to the Appellate Courts, and when it comes
    to the standard under which Appellate Courts second guess a
    Federal judge in the original ruling, isn't it fair to say
    that, in fact, everyone who might be affected by a precedent
    is, in fact, a person of standing?
        I say that because you alluded to the idea that, well,
    maybe only the litigants would know. If the ninth circuit makes
    a decision based on a case, it is going to be binding. I don't
    even get my day in court when I go before a judge who might, in
    fact, come to a very different conclusion or steer a jury
    toward coming to a different conclusion. So, isn't there a
    broader right than just the litigant or the defendant?
        Ms. Jefferson. Well, certainly in terms of wanting to
    ensure that the process is fair, right. So, if the individual
    litigants are impacted by a judge's bias, you are absolutely
    right that the outcome, that decision, the decision that then
    governs all of us who are subject to it as precedent is not
    legitimate because it is a product of bias.
        Mr. Issa. I guess, lastly, one of my great questions--and I
    am going piggyback to the Full Committee Chair--I personally
    don't see any reason, even though I only have mutual funds and
    don't maintain individual stocks for the reason of conflict, I
    don't see a reason that we would effectively stop the lower
    courts.
        I would like you to opine, and I will start with Mr.
    Morgan, opine on the question of the Supreme Court because,
    ultimately, those nine men and women, without a recusal, the
    decisions are magnificently dependent, and we have, in my time
    here, 20 years in Congress, we have had Justices who clearly
    had a background and a bias because of previous activities on a
    related case who chose not to recuse themselves. So, do you
    feel that we have the right to demand recusal or a structure
    for a recusal?
        Mr. Morgan. Yes, Mr. Issa, I do. I think that it remains to
    be seen whether the Supreme Court will agree and what they will
    do, but I think that the ideal solution is for Supreme Court to
    voluntarily accept what is already a statutory requirement
    about adherence to 455 and that they voluntarily would agree to
    submit to the code of conduct for United States judges. Whether
    additional obligations would be constitutional, I recognize
    Professor Greene as the real expert on the panel on that
    question.
        Mr. Issa. Well, then I will go to Professor Greene and ask
    the one final question, which is, if we withhold funding until
    or unless the Supreme Court returns with a standard to their
    liking, is that constitutional?
        Mr. Greene. I have to think more--maybe think more than I
    have right now about the constitutionality of that kind of
    threat. As I sit here today--
        Mr. Issa. By the way, that is funding of the court, not
    funding of their salaries.
        Mr. Greene. Right, right. So, their compensation can't be
    diminished, but the Congress has quite a lot of control over
    the funding of the court, and assuming it did not--it went
    through proper legislative channels and was not outside the
    legislative process in some way, I don't, as I sit here today,
    see a constitutional issue with that.
        Mr. Issa. Thank you.
        Thank you, Mr. Chair. I yield back.
        Mr. Johnson of Georgia. Thank you. We will now turn to the
    gentleman from California, Mr. Lieu, for five minutes.
        Mr. Lieu. Thank you, Mr. Chair, and I yield my time to you
    for whoever you want to yield your time to.
        Mr. Johnson of Georgia. The gentleman is kind, and I
    appreciate it.
        Recusal is also a problem with the Supreme Court. Justices'
    decisions whether to recuse or not can be inconsistent. Those
    decisions often go unpublished, and there is no means of
    enforcing a failure to recuse. The decision to recuse or not
    cannot be appealed.
        Professor Greene, you have written about proposals for
    reforming the Supreme Court. Should changes to the recusal
    process be included in any considered reforms to that body?
        Mr. Greene. I do think it is important to address the
    recusal practices of the court. They are currently covered by
    the Federal recusal statute, 28 U.S.C. 455, but there are some
    special considerations with the court. One is that it is at
    least awkward and may be constitutionally problematic for lower
    court judges to make decisions about whether the court should
    recuse, given that the court is superior in the constitutional
    hierarchy. The other issue is that it is very difficult to
    replace a Supreme Court Justice, as there are only nine of
    them, and you could lead to an even court.
        So, there are some important considerations, and there
    maybe has to be some modifications when it comes to how to
    enforce a recusal statute against the court. The lack of
    transparency is a problem,mand I agree with Professor Morgan
    that the standards that apply to other Federal court judges
    should apply in some fashion to the Supreme Court as well.
        Mr. Johnson of Georgia. Thank you, Professor.
        Is there anything in article III or in article I of the
    Constitution that would prevent Congress from directing the
    High Court, the Supreme Court, to bind itself to a code of
    conduct?
        Mr. Greene. So, there is nothing specific within article I
    or article III that would prevent Congress from doing that.
    Part of the problem in this area is that article III is not
    very specific. It doesn't say very much about what Congress can
    or can't do.
        Congress does have power under article I, section 8, the
    Necessary and Proper Clause, to make the rules that it thinks
    are necessary and proper for the institutions of government to
    carry out their powers, and the court is one of them. So, there
    is no specific prohibition.
        I think you would get some arguments, some sort of general
    separation of powers arguments about the court needing to be an
    independent institution, but I don't find them persuasive in
    this area given how much Congress can and does regulate the
    Supreme Court's behavior in other areas.
        Mr. Johnson of Georgia. Thank you, Professor.
        The Journal reported a large number of trades by judges
    during cases in which those judges oversaw suits involving
    those same companies. Many of those trades netted the judges as
    much as $50,000.
        Professor Jefferson, why is this such alarming cause for
    concern?
        Ms. Jefferson. Well, I think it goes back to the purpose of
    recusal, which is both for the individual litigants to feel
    that they have gotten due process, a fair process, and knowing
    that a judge is making money off holding stock over one of the
    parties compromises that.
        Then, of course, the second purpose of recusal is the
    public perception, and I imagine that anyone in the public
    hearing this would find that it diminishes how they hold our
    courts in esteem.
        So, I think it is problematic for both of those reasons.
        Mr. Johnson of Georgia. Thank you.
        Mr. Hedtler-Gaudette, should there be penalties for or
    restrictions on this behavior, and if so, what should the
    penalties be?
        Mr. Hedtler-Gaudette. Thank you, Chair. Yes, there should
    absolutely be restrictions, and I think we have touched on a
    number of those options in this hearing already. One sort of
    clean way, as we already discussed, just prohibiting the
    ownership of individual stocks by Federal judges. There are
    other options to look at too, of course.
        As far as consequences, I think it gets a little tricky
    because we are dealing with a situation where judges have a
    lifetime appointment. So, there are just a few kind of ways to
    hold them accountable, and one of them, of course, is
    impeachment, but that is an extreme approach, and I suspect you
    all are not going to spend a lot of your time in Congress
    impeaching judges.
        So, I think the short answer to that is, I don't have a
    good answer for you on what to do about consequences, though I
    think we do need to spend a lot more time thinking about what
    we can do to hold all Federal judges accountable because, as we
    spoke to earlier, they ought not be above the law, and they
    certainly aren't above the law.
        Mr. Johnson of Georgia. Thank you. We will now turn to the
    gentleman from Texas--well, let's see, actually, Mr. Gohmert is
    not here, so Mr. Fitzgerald.
        Mr. Gohmert. I am here. Gohmert is here.
        Mr. Johnson of Georgia. Oh, Mr. Gohmert, I didn't--oh,
    okay, I did not recognize you. Oh, okay. I gotcha. All right.
    Okay. Thank you. Mr. Gohmert, you are recognized five minutes.
        Mr. Gohmert. Thank you, Mr. Chair.
        Mr. Morgan, you mentioned the 131 judges identified by The
    Wall Street Journal article that represent, well, it is a
    minority of 870. It, of course, is quite concerning, but that
    is probably--we are probably talking about a set of about 1,000
    people that were judges between 2010 and 2018. So, it is a
    little more than 10 percent. That is still too many.
        I was wondering, if there was one action that you could
    take to bridge the gap so that we don't have that many judges
    who fail to report potential bias, what would that action be
    that you would recommend?
        Mr. Morgan. Mr. Gohmert, I think the single most important
    is, as I suggested earlier, that the clerk offices around the
    country screen the cases as they come in before the judge ever
    sees them and has access to the technical capability to not
    send them conflicting cases in the first place.
        The second aspect would be that the judges, as others have
    suggested here, be required to report their trades promptly, I
    think much shorter than the month or 45 days or all that are
    prescribed in some other statutes, so that they can be very
    timely in the action.
        Mr. Gohmert. Yeah. So--and pardon my not knowing, is there
    software that a clerk could utilize to make that check quickly,
    like entering in the parties and seeing if there is a judge--is
    there software that can make that determination quickly?
        Mr. Morgan. Well, there is software that is currently used
    by the administrative office that tries to do that, but I am
    not an expert in that software, but it seems not to be
    particularly effective if we have this many cases that get
    through. So, I think you would have to adapt the wide range of
    software that is available to law firms who are engaged in a
    very similar checking operation every time a new client comes
    to the firm.
        So, what I am saying is I think that this is a solvable
    technical problem and that, if we implement those kinds of
    changes, we ought to be able to take care of at least the
    numbers, which are shocking at the moment.
        Mr. Gohmert. Well, if this software that is being used is
    what we are going to tweak, I am not sure I have enough
    confidence in that. It seems like there needs to be different
    software that would be utilized.
        In view of the problems that Director Mueller and Comey had
    with software at the FBI, I am not sure about Federal ability
    to pick proper software. They can pick software that costs a
    tremendous amount of money, but we would need something that
    actually did what we needed done, and I am not impressed with
    the Federal Government's role in doing that.
        So, anyway, Professor Jefferson, are you aware of software
    that might be more appropriate to use in the Federal courts?
        Ms. Jefferson. I am not a software expert, so I don't have
    something to recommend. I would just say that we need something
    that certainly allows for better accountability, transparency,
    something that allows for the information to be more readily
    available to the public and to the litigants in a timely basis
    and at a low, if actually really no cost at all.
        Mr. Gohmert. Well, it seems like there is always costs.
        Mr. Chair, I appreciate your indulgence, and I yield back
    my time.
        Mr. Johnson of Georgia. Thank you, sir.
        We will now turn to the gentleman from Arizona, Mr.
    Stanton, for five-minute.
        Mr. Stanton. I thank you very much, Chair Johnson. This has
    been a very informative hearing with outstanding Witnesses. I
    do appreciate many of the possible solutions to this dilemma,
    and it is a serious dilemma. It is critically important that
    the public have confidence in the judges that they may appear
    before and the judiciary as a whole. This reporting by The Wall
    Street Journal is important and has shown that there are some
    gaps in that system. So, I really appreciate you organizing
    this hearing.
        With that, I will yield the remainder of my time to
    Congresswoman Ross.
        Ms. Ross. Thank you very much, Representative Stanton.
        Thank you, Mr. Chair, for holding this hearing.
        The American Constitution was built on the promise of equal
    justice under the law, and our Founders designed a judicial
    system that strives to administer blind, impartial justice.
    Every American is entitled to a free and fair trial presided
    over by a disinterested judge.
        The courts' legitimacy depends on the public confidence
    that people place in its ability to deliver this type of
    justice. Any shortcomings in our ethics systems for judges
    threatens this confidence. Recent reporting by The Wall Street
    Journal and in the North Carolina Law Review--and I am a proud
    graduate of UNC Law School--has made clear the limit of the
    judiciary's present system of addressing conflicts of interest.
        We must act now to put checks in place to ensure that both
    real and perceived financial conflicts are avoided to restore
    the public's faith in our courts. We cannot miss this
    opportunity to further transparency and ethical integrity in
    the Judicial Branch.
        That is why, with my bipartisan colleagues on the Judiciary
    Committee, I have introduced the Courthouse Ethics and
    Transparency Act, along with Ranking Member Issa, with the
    Chair of this Subcommittee, and Chair Nadler, among others. Our
    bill will ensure that judges face the same disclosure
    requirements as Members of the Legislative and Executive
    Branches. A double standard for the Judicial Branch is simply
    unjustified, and the transparency gap must be closed now.
        When elected officials breach the public's trust, the
    public has recourse at the ballot box. Article III judges,
    however, are appointed for lifetime terms. Given the tremendous
    amount of faith bestowed upon them, Federal judges must be held
    to the utmost standards of ethical behavior and transparency.
        Our bill will also give the public access to judicial
    financial disclosures in an online searchable database. This
    will enable ordinary citizens to access these disclosures
    without impacting the confidentiality protections currently in
    place for judges' sensitive or private information. These
    measures are commonsense, bipartisan, and necessary
    immediately.
        Again, I am Representative Ross from North Carolina.
        Mr. Hedtler-Gaudette, I want to thank you for your
    testimony. Please tell us about the relationship between the
    judiciary's transparency and its institutional legitimacy.
        Mr. Hedtler-Gaudette. Thank you, Congresswoman Ross, and I
    want to thank you again for your leadership in introducing the
    bill you just spoke about. We at POGO are happy to support it
    and stand ready to help as it moves forward.
        As for the relationship between legitimacy and the
    institutional integrity of the courts, I think it is not an
    exaggeration to say that, without transparency in the courts,
    you cannot have legitimacy in the courts. As you noted, we do
    not have the regular accountability mechanism for the courts--
    that is election--that we do for you all in this Committee room
    and that we do have for Presidents, and so on. We don't have
    those.
        What that means is that we need more and stronger ways of
    holding people accountable in the judiciary, and those are
    usually going to come in the form of transparency requirements
    and disclosure requirements and things of that nature.
        So, it seems preposterous that, under the current system,
    Federal judges don't even have to comply with the standard that
    you all in this room have to comply with when it comes to
    disclosing financial information. At the very least, we need to
    operate on the principle of what is good for the goose is good
    for the gander here, and we need to get the Federal judiciary
    to at least a place of parity when it comes to transparency.
        I would also posit that that is only the first step. We
    still have a lot of other things that need to be addressed
    within the judiciary when it comes to impunity, but this is a
    very reasonable, pragmatic, commonsense first step, and I would
    strongly encourage everyone in this Committee room and everyone
    in Congress to support it.
        Ms. Ross. Thank you very much.
        Mr. Chair, I yield back.
        Mr. Johnson of Georgia. Thank you.
        We will now turn to the gentlelady from Minnesota, Ms.
    Fischbach, for five minutes.
        Ms. Fischbach. Thank you very much, Mr. Chair. I appreciate
    the opportunity.
        I just wanted to ask a couple of questions of Professor
    Morgan. We just--Congresswoman Ross just mentioned her
    legislation, and I am a little concerned, you know, that the
    tension and the things that are going on between holding the
    courts accountable and actually the exposure to danger or the
    public, public information being released of the judges. So, it
    is my understanding that there has been some pushback that this
    may cause issues for safety and whatever the case for the
    judges and for their families. So, I am wondering if that has
    been given any thought and if there is maybe more information
    that you might have on that issue.
        Mr. Morgan. I don't have additional information on that
    issue, but I share the concern that broad disclosure that is
    available to anybody anywhere in this country or around the
    world is not a value that has no limits. It is something that
    ought to be taken into account as you formulate what the
    standard really ought to be.
        Ms. Fischbach. I am just wondering--I don't know if you
    have had the opportunity to take a look at the legislation that
    Congresswoman Ross was talking about--are there any safeguards
    in that? Or, if there haven't been, what kind of safeguards
    would you suggest?
        Mr. Morgan. Well, I have not had a chance to look at the
    legislation, but I would suggest to you that the Administrative
    Office of the Courts is a good source to turn to see what they
    have thought was important in the past in terms of protecting
    the judges who really are exposed in some cases to genuine
    danger.
        Ms. Fischbach. Absolutely, and I appreciate that
    suggestion. Just maybe just a little bit based on what you have
    heard today, because neither of us have had the opportunity to
    look at the legislation, but do you really think that this will
    really change some of these proposals and really change the
    behavior of the judges, given that I think we have said a
    couple of times now, yes, these things are in place, but they
    are just not doing them? I am wondering if you really think
    that this will have an effect, Professor.
        Mr. Morgan. It is very hard to predict, of course, what
    will actually have an effect, but I think something needs to be
    done. There is no question. The Wall Street Journal stories in
    themselves, I suspect, have gone through, have created a
    response in the judiciary that will cause them to be seriously
    concerned about making necessary changes.
        My own view is that this is not a controversial subject or
    should not be and that the solutions that you come up with
    ought to be ones that, from my standpoint, ideally the court
    would impose on itself, or the court system would impose on
    itself through the Judicial Conference or some other
    institution such as that.
        Ms. Fischbach. Well, thank you very much, Professor.
        With that, Mr. Chair--
        Mr. Issa. Would the gentlelady yield, if you are finished?
        Ms. Fischbach. Oh, yes, I would yield to Congressman Issa.
        Mr. Issa. Thank you.
        Following up on the gentlelady's questions, and I will stay
    with Mr. Morgan, The Wall Street Journal got this information
    through publicly available documents, correct?
        Mr. Morgan. Yes, sir. They had to work at it apparently;
    that is, it was not easy to gather the information, but they
    are publicly available documents.
        Mr. Issa. So, when you look at the proposal that Ms. Ross,
    the Chair, myself, and others are at least putting out there as
    a starting point, aren't we really saying that what is already
    gettable would simply be gettable in an organized and timely
    fashion?
        Mr. Morgan. Well, I am not certain, Mr. Issa. I accept your
    representation. I simply--
        Mr. Issa. Okay. Well, instead, let's go to, wouldn't it be
    reasonable that, if something is already available, that it be
    available in a reasonable and timely fashion and that would not
    change the danger quotient here?
        Mr. Morgan. I agree with that point, absolutely.
        Mr. Issa. Thank you.
        I yield back. I thank the gentlelady.
        Mr. Johnson of Georgia. Thank you.
        We will now resort to the gentleman from Tennessee, Mr.
    Cohen, for five minutes.
        Mr. Cohen. Thank you, Mr. Chair.
        First, I want to thank you and the Ranking Member for
    holding this hearing, notwithstanding your comments.
        As the arbiters of justice in our country, the impartiality
    of our judiciary should be beyond reproach. Justices of the
    Supreme Court may be the most powerful people in our land
    because their decisions are not appealable, and they have got
    lifetime appointments. They have control and actions over our
    bodies, particularly women's bodies, and our actions in so many
    ways, and yet they do not have any particular ethical standards
    or restraints, not bound by an ethical code of conduct, and
    that just seems wrong.
        The whole idea of giving judges at all levels lifetime
    appointments is to get them free of any earthly desires that
    they may fall prey to and that they could be fair and
    impartial. At the same time, because they have got lifetime
    appointments, I have been hearing we can't really sanction them
    for violating any rules, which seems like a catch-22 of some
    nature.
        Hamilton correctly said, ``The Judicial Branch has neither
    the power of the sword nor the purse.''
        Professor Jefferson, what does the judiciary have to do to
    get parties to abide by any rules that they might set forth? Is
    there anything we can do to get the Supreme Court to take
    action?
        Ms. Jefferson. So, Congress can require the Supreme Court
    to adopt a code of ethics. I think a really important point to
    make here though is, so there has been a lot of conversation
    that we can't sanction the Federal judges, but I don't think
    any of us want to be sanctioning Federal judges. What we want
    is compliance with ethics rules, and so the Supreme Court and
    the lower courts, the key to compliance is public
    accountability. We can predict how the judges will respond
    because we saw how they responded when each one was--at least a
    lot of them responded when they were called up by The Wall
    Street Journal and it was pointed out that they weren't
    complying with this law. Many of them followed up with
    litigants to let them know what happened. Many of them took
    steps to correct the situation.
        So, imposing that similar kind of accountability by not
    just requiring an ethics code but then showing how it's being
    complied with. So, for example, not just requiring disclosure
    of one's finances but maybe requiring disclosure of recusal
    decisions.
        If a judge is required to actually explain the basis for
    recusal, there are several important things that happen: One,
    there is accountability for that individual judge because he or
    she has to justify the decision to recuse or not recuse.
    Critically important, it becomes an education tool. Another
    judge thinks, ``Oh, in a future case, I saw that a different
    judge recuse; I should probably be recusing too.'' Also, for
    litigants, same thing.
        Mr. Cohen. That is wonderful, but what if they don't do it?
    What if they don't comply? What if they don't care? Your only
    penalty is shame.
        Ms. Jefferson. Yeah, and shame can be powerful. I mean, one
    of the points that I make in my written testimony, as I said in
    my opening statement, is--
        Mr. Cohen. Shame doesn't exist anymore.
        Ms. Jefferson. Well, I think that may very well be true,
    but it would at least get us closer to more judges adhering to
    the rules if we knew there was a public list of judges who
    weren't complying. We at least now have more judges--
        Mr. Cohen. What are you going to do? They don't lose their
    job.
        Ms. Jefferson. Well, true. I mean--
        Mr. Cohen. They don't lose their brokerage account. So,
    they have shame.
        Ms. Jefferson. Taken to the extreme, it would have to be
    impeachment, right, yeah.
        Mr. Cohen. Right. We have seen how good that is.
        Ms. Jefferson. I understand.
        Mr. Cohen. Yeah. Mr. Hedtler-Gaudette, do you have any
    ideas about what we could do to try to make these--can we take
    away, give them a financial penalty? Can Congress have a law
    that says, if they don't do it, that they lose X amount of
    money for each failure to comply?
        Mr. Hedtler-Gaudette. Thank you. So, I think it is a bit
    beyond my expertise to say whether that would be an appropriate
    avenue to take; although, I would point out--this is something
    that I also feel passionately about--that Congress does
    emphatically and unequivocally control the power of the purse.
    So, there are a number of things, with the exception of
    reducing the salary of a Federal judge or a Supreme Court
    Justice, that you all can do if you were willing to more
    aggressively and assertively use the power of the purse around
    funding of facilities and that kind of thing.
        Mr. Cohen. Professor Greene, you are out there somewhere, I
    guess. Maybe not.
        Mr. Greene. Yes, here.
        Mr. Cohen. Oh, I see you. There you are. In the power of
    the purse, can we really do that? Can Congress reduce the
    salary of a judge during their term of office? Isn't there some
    limitation on reducing the salaries of judicial officials?
        Mr. Greene. Yes. So, article III says that the compensation
    of article III judges can't be reduced during their time in
    office. So, that would be a limitation.
        Mr. Cohen. Yeah.
        Mr. Greene. Although other uses of the power of the purse
    may not necessarily be limited in the same way, so--
        Mr. Cohen. So, take away their interns? Take away their
    staff?
        Mr. Hedtler-Gaudette. Conceivably. It has never been
    tested, and there would be an argument about it that it would
    be resisted, but there is no clear constitutional prohibition
    on that, no.
        Mr. Cohen. All right. I am over my time, and I have got
    other questions I will just put in writing, but do I want to
    make this comment: The Wall Street Journal story cited many
    judges. I don't think I knew hardly any of them, except for the
    Sixth Circuit Judge, Julia Gibbons. I do not know--she is of a
    different political party. I don't know of a judge or a person
    that I have known who is more respected for her rectitude, for
    her probity. The fact she or her husband had some minimal
    amount of stock in some company that she may or may not have
    known about is kind of absurd to think that would have affected
    her opinion whatsoever.
        So, I say, I understand disclosure and transparency, but I
    put Judge Gibbons over The Wall Street Journal any day.
        I yield back.
        Mr. Johnson of Georgia. I will now turn to the gentleman
    from Wisconsin, Mr. Fitzgerald, for five minutes.
        Mr. Fitzgerald. Thank you, Mr. Chair. I would yield my time
    to Mr. Issa.
        Mr. Issa. I thank the gentleman for yielding.
        I think we have reached kind of an interesting point in the
    hearing where we are going to keep probing similar questions in
    different ways because I think we really need to know or have
    your opinions.
        So, I will go back to Ms. Jefferson. If I am summarizing
    what I keep hearing again and again, we have 130 judges who
    if--I am sorry, Mr. Cohen has left, but if in a timely fashion
    had been made aware and the public was made aware of these
    failures under the existing statute, most of them would have
    acted differently. Is that a fair statement based on what
    actually happened?
        Ms. Jefferson. I agree with that, and certainly the
    responses of many of the judges that were reported by The Wall
    Street Journal suggested that they were bringing themselves
    into compliance in real time.
        Mr. Issa. So, the case for informing them and the case for
    making it public is pretty well documented based on the
    reaction of many of the 130. Is that correct?
        Ms. Jefferson. Yes.
        Mr. Issa. So, I think we have gotten past that.
        Now, the question of enforcement is an interesting one and
    whether someone recuses themselves even faced with that. I only
    have experience with lawyers who, seeing a client with a large
    amount of money, saw no conflict with having previously
    represented me on the other side and wanted me to waive their
    recusal.
        So, I know that, at least among judges, which I understand
    is where you get--or among lawyers, which I understand is where
    you get judges from, there is a tendency to be reluctant to
    recuse. So, one of the questions that is not in the bill that
    is going to be considered at some point is a structure to
    enforce recusal at each level, including the Supreme Court.
        Would you opine on whether or not you believe that we
    should be looking at a structure for third-party recusal,
    meaning, for example, and I will just give the extreme one:
    There are nine Justices at the Supreme Court. If there were a
    challenge to two of them based on some recusal item, should the
    other seven stand in judgment of whether or not the recusal, or
    should it be continued to be left exclusively to the
    individuals?
        Ms. Jefferson. So, I think that would be one important
    reform, and you can actually look to how that has worked in
    practice because we have our laboratory of States. So, Texas,
    where I am a law professor at the University of Houston, the
    Supreme Court of Texas does exactly that. If one of the
    justices has some sort of conflict or there is a request for
    recusal, the other justices weigh in on that and evaluate
    whether or not, in fact, that justice should recuse.
        In addition to having--and in the lower courts, it is not
    all the District Court judges; it is one that reviews for
    another. So, the process needs to be scaled appropriately,
    depending on whether or not you are talking about the highest
    court or a lower court. The process needs to still happen in a
    timely manner.
        There are other improvements or reforms that I would
    suggest, in addition to not only having another judge review
    the recusal, also having the documentation of either why or why
    not a particular judge recuses is an important signaling
    mechanism. It is accountability for that judge, but it is also
    education for all judges and indeed parties going forward in
    the future whether or not it is appropriate for them to be
    seeking recusal.
        Mr. Issa. Following up on that at the lower court, as a
    matter of practice, at least in the Southern District of
    California, there is an informal, I don't want a case, but I
    don't want to say why, that has historically happened where the
    chief judge will simply pass on somebody without a reason
    periodically. Often, it is the complexity of the case, or in
    some cases, simply caseload. Do you think that that is an
    alternative recusal that could be a tool for those who did not
    want to get into the specifics of recusal prior to the
    assignment of a case?
        Ms. Jefferson. I think it is. The important caveat I would
    put in place is, with any reform we want to make sure there is
    not unintended consequences. So, you would want some
    protections in place, for example, to avoid litigants judge
    shopping, maybe put a limit on the number of recusals, that
    sort of thing.
        Mr. Issa. Having authored the Patent Pilot Bill some years
    ago, I am acutely that we want to protect from there being only
    one judge that something goes through.
        Lastly, the reforms that I just talked about and the
    others, if before Congress even acts, if we encourage the court
    to take action in any of these areas, including even the high
    court recusal discussion we just had, is it within their power
    to do it, in your opinion? Maybe you and Mr. Morgan quickly. Is
    that something that you believe they could do you sua sponte.
        Ms. Jefferson. The court itself?
        Mr. Issa. Yes.
        Ms. Jefferson. Oh, absolutely. In fact, I wish the Federal
    judiciary had already done it. Maybe they will, in light of
    this hearing and this leadership part. We will see. If not, it
    falls to you.
        Mr. Issa. Does anyone disagree with their ability to do
    that of their own accord?
        Mr. Morgan. I agree.
        Mr. Issa. Thank you. I yield back.
        Thank you. Mr. Chair.
        Mr. Johnson of Georgia. We will now turn to the gentlelady
    from North Carolina, Ms. Ross, for five minutes.
        Ms. Ross. Thank you very much, Mr. Chair.
        I just want to share some information with the Committee
    relative to Representative Fischbach's question. I know that
    many Members of the Committee have not yet had a chance to see
    the legislation that we have introduced. I want you to know
    that the bill does not impact existing judicial safety and
    confidential rules. Under the Ethics in Government Act, which
    this bill amends, the immediate and unconditional availability
    of a judge's disclosure is not required. If a finding is made
    by the Judicial Conference that revealing personal and
    sensitive information could endanger that individual or a
    family member.
        Further, and what happens far more often in practice is
    that discrete details in a judge's disclosure may be redacted
    to protect the individual who filed the report or a family
    member of that individual. The Courthouse Ethics in
    Transparency Act keeps this provision in place. So, I am hoping
    that that will smooth the road for the bill when it comes back
    to Committee for a markup.
        Professor Greene, first, I want to thank you for staying
    with us. I know had you a previous engagement and we really
    appreciate you staying with us for this afternoon, because you
    have shed a lot of light on what our authority is, and how we
    can act consistent with the necessary and proper powers.
        I would like to ask you would a publicly available online
    database of judicial financial disclosures fit within the
    historical pattern of promoting transparency and ethics in the
    courts?
        Mr. Greene. Yes. I don't think there is any question about
    that. Congress has regulated the ethics of lower Federal courts
    for almost the entire time they have existed so going back to
    the 18th century. I think this is entirely consistent with that
    constitutional power.
        Ms. Ross. Thank you very much.
        Professor Jefferson, you have talked a lot about changing
    the culture, and how we can change rules that would effectively
    change the culture. In addition to making changes in the law,
    do you think it would be good to have regular ethics training
    for our judges?
        Ms. Jefferson. Well, absolutely, as a college professor, of
    course I am an advocate of regular ethics training. Although I
    am mindful of that alone is not enough. In fact, I think
    professional responsibility is a required course in all law
    schools post-Watergate, but we still have lawyers who find
    themselves and judges as it turns out violating ethics
    obligations, which is why I think an important educational tool
    in addition to, like, a continuing legal education seminar is
    the public education and the education to the judges themselves
    when they have to publicly release information on a regular
    basis.
        Ms. Ross. You also have said--and I just want to basically
    make you repeat what you have said to some of the other folks,
    including my colleague, Representative Issa. How would the
    transparency of publicly available and searchable financial
    disclosures encourage the culture change that you have
    advocated for? Well, we have been able to see it in real time.
    I think rather than having journalists create that
    transparency, it would be better served for the judiciary
    itself to create that transparency. When information becomes
    publicly available, judges who aren't following the rules,
    either because they don't know about them, or just because they
    think no one is going to check and see if they are, will come
    forward and change the behavior. Maybe it won't change
    everyone, but I think that it absolutely shifts the culture
    from one of silence, where we just don't talk about it because
    we don't know, or because we think silence connotes respect
    into a culture where we are coming alongside not to sanction,
    but to actually bring ourselves into compliance with our
    ethical obligations.
        Ms. Ross. Thank you. I yield back.
        Mr. Johnson of Georgia. Thank you. I want to thank our
    distinguished panel of experts for your testimony today and for
    your time.
        This concludes the first panel for today's hearing. We will
    now transition to the second panel. While we do that, we will
    be in recess for five minutes.
        [Recess.]
        Mr. Johnson of Georgia. I will now introduce the Witness on
    our second panel, Judge Jennifer Walker Elrod has served as a
    Circuit Judge on the United States Court of Appeals for the
    Fifth Circuit in Houston, Texas, since 2007. She was recently
    appointed Chair of the Judicial Conference Committee on Codes
    of Conduct which provides advice on the application of the code
    of conduct for U.S. judges, including financial conflicts and
    recusals regarding financial disclosures.
        Prior to joining the Federal bench, Judge Elrod was a State
    trial judge in Texas and worked in private practice. Judge
    Elrod clerked for the Honorable Sim Lake of the U.S. District
    Court for the Southern District of Texas, and earned her B.A.
    from Baylor University and her J.D. from Harvard Law School.
    Welcome, Judge Elrod. Thank you for participating in today's
    hearing.
        I will repeat my earlier reminder that 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. 1001. Please note that your written statement will be
    entered into the record in its entirety. Accordingly, I ask
    that you summarize your testimony in five minutes. To help you
    stay within that time, there is a timing light on your table,
    or there is a timing light on the screen. When that light
    switches from greene to yellow, you will have one minute to
    conclude your testimony. When the light turns to the red, it
    signals five minutes have expired. With that, Judge, you may
    begin.

                STATEMENT OF HON. JENNIFER WALKER ELROD,

      CIRCUIT JUDGE, UNITED STATES COURT OF APPEALS FOR THE FIFTH
                                CIRCUIT

        Judge Elrod. Thank you, Chair Johnson, Ranking Member Issa,
    and Members of the Subcommittee. I appreciate the opportunity
    to discuss with you the work that the Federal judiciary is
    doing to promote judicial ethics and transparency. My name is
    Jennifer Walker Elrod, and I serve as a judge on the United
    States Court of Appeals for the Fifth Circuit.
        On October 1, 2021, I became the Chair of the Committee on
    the Codes of Conduct of the Judicial Conference of the United
    States. Judicial ethics and transparency are fundamental to an
    independent judiciary. They are fundamental to the public's
    trust in the judiciary. Litigants must be confident that they
    will have a fair and impartial forum to bring their cases.
        Accordingly, the judiciary takes these matters very
    seriously, and is greatly concerned when lapses occur. My
    message today is, first, the judiciary has strong ethics
    frameworks in place, including the recusal statures, the code
    of conduct canons, and the regulatory policies of the judicial
    conference described in my written statement. Those are
    powerful tools and resources available to the Federal judiciary
    and to the public to ensure the functioning of an ethical and
    independent judicial branch.
        Second, the Committee on Codes of Conduct supports that
    framework through providing advice and extensive training. I
    will speak more about that in a moment.
        Third, courts are working to review and work with parties
    to address the specific cases where recusals did not occur.
        Fourth, the judiciary is already involved in additional
    training and technology improvements. Particularly, we have
    begun additional training for all judges focused specifically
    on conflicts checking. Further, circuit counsels' courts
    throughout the country, and the Committee on Codes of Conduct
    are all working together to review our systems to identify
    improvements, best practices, and additional procedures that
    can eliminate lapses in the future.
        Fifth and importantly, transparency is essential to the
    integrity of the judicial branch in the public's trust in the
    judiciary. That is one reason why the Federal courts have
    public proceedings, even during this COVID era, and why we
    issue written opinions. It is also why the Committee on Codes
    of Conduct publishes its advisory opinions.
        One of the purposes of the Committee of Codes of Conduct is
    to help judges look through ethical issues ahead of time, so
    that they don't make mistakes. The Committee provides ethics
    training and advice to Federal judges throughout the country.
    For example, at the request of my chief judge, I have
    personally provided training to the circuit judges in my
    circuit just this month on conflict issues. We also provide
    confidential guidance to judges and publish advisory opinions
    to inform both judges and the public.
        In addition to training improvements, the Judicial
    Conference and the Committee on Codes of Conduct and the
    circuits are working on technological improvements to help
    better manage conflicts.
        Judges already use conflict screening software, both the
    individual circuits and the Committee on Codes of Conduct are
    collecting best practices for using the conflict-checking
    software. Our staff are looking for possible additional
    improvements. The Eighth Circuit has helped spearhead this
    effort.
        Recent media reporting on financial interest conflicts has
    highlighted gaps that we can address through training and
    technological improvements. While the number cases with
    reported lapses is small compared to the total number of cases
    that we handle, we must strive to achieve full compliance.
        As I often tell my law clerks, each case is important and
    deserves our utmost attention. For litigants, the case may be
    the most important thing in their life. In fact, it may even be
    a matter of life and death. Therefore, it is essential that
    litigants believe the judges who hear their cases will be
    impartial. The judiciary's goal is full compliance with ethics
    and reporting requirements. The Committee and I will work
    tirelessly to meet this goal. You have my word.
        Thank you again for the opportunity to appear before you
    today. Thank you.
        [The statement of Judge Elrod follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Johnson of Georgia. Thank you, judge. We will now turn
    to the gentleman from California for five minutes Mr. Issa.
        Mr. Issa. Thank you, Mr. Chair.
        Your Honor, one of the challenges that I think we face here
    is we hear you; we know that your intentions are good. I will
    use Texas for an example. We had a judge in east Texas who had
    very obvious conflicts of interest as he handled more patent
    cases with family interest and family financial benefit for
    many years, and there was no action taken by the court. We now
    have a judge in West Texas who has made a cottage industry out
    of a massive amount of cases. We are still waiting to see his
    financial disclosures even filed, or at least made available.
        Can you tell me how we can get compliance with existing law
    so that we can have better confidence? When I say
    ``compliance,'' I mean uniform and complete compliance, because
    we know that you do well 80 percent of the time, but of course
    the interest is in the 20 percent that we don't see.
        Judge Elrod. Well, you are talking about compliance, two
    different areas. One is in financial disclosures, which is one
    bucket, and that is the financial disclosures process is under
    the jurisdiction of the Committee of Financial Disclosures.
    Then you are talking about recusal checks, and that is under
    the Committee that I Chair now. It is very important that
    judges be trained fully on what their recusal obligations are.
        We learned recently, for example, that judges had some
    confusion in this regard. The judges thought separately managed
    accounts, some judges did--not many, but if you have any, that
    is going to cause a problem--thought separately managed
    accounts was the same as mutual funds. Well, mutual funds have
    a safe harbor under our ethics guidance. Separately managed
    accounts are considered to be controlled funds, which did not
    have a save harbor.
        Mr. Issa. Excuse me. Your Honor, I appreciate that.
        I was thinking, for example, if you do not see--if you are
    not able to review financial disclosures and they are not being
    produced in a timely fashion, then how do you provide guidance
    for those who likely should recuse? In other words, today,
    neither you, nor the financial disclosure separate
    organization, have a timely requirement to consider recusals,
    and the necessary information to, in fact, make a case-by-case
    decision, meaning you are not in a position to tell somebody,
    Hey, you did have that separately managed item, and by the way
    you should have recused yourself because one, the compliance is
    limited, but--in the reporting. Then secondly, that not part
    of, if you will, a case review that you or some other part of
    the third house does.
        Judge Elrod. Well, with regard to ethics conflicts
    checking, each judge has to keep a list of his or her recusal
    interests. That is not just financial interest, but other
    interests as well. Then those have to be shared with the
    required conflict screening of people in their clerk's office,
    so that those can be done electronically. So, there is a
    requirement that those lists can maintain.
        To the extent I hear you. I think that you have concerns
    about the financial disclosure reports, which, again, is a
    completely different system--
        Mr. Issa. Your Honor, not to interrupt you, but the time is
    very limited. Of course, a lot of what we are talking about is
    financial disclosure, what we are really talking about, since
    the court has not created an ability to second-guess the
    judges, and to have the information, and to make sure the
    information is being delivered in a timely fashion, you know,
    it is one of those, if you will not act, how can we not feel it
    necessary to create a series of laws that cause you to react in
    a way that is more than just hoping that a judge, who is
    perhaps confused, perhaps is misinformed, simply doesn't do
    that.
        I gave you the example first of East Texas, now the West
    Texas--and I deliberately didn't mention names--but these
    judges have become notorious for basically where patent cases
    go. If they have financial conflicts or prejudices, the fact
    is, they have made no effort to recuse themselves, not once.
        Judge Elrod. Well, Mr. Issa, it would be inappropriate for
    me to comment on a particular circumstance regarding any
    particular judges. I would say that there is a system for
    disciplining judges that don't comply with our conflicts-
    checking regulations.
        Mr. Issa. If you would provide to us a list of any judges
    that have been disciplined for the record, I would appreciate
    it.
        My time has expired. I don't want to be unfair to the
    Chair. If you would provide us a list of any discipline so that
    we can review that and see whether it proportional.
        Judge Elrod. I can't con--thank you.
        Mr. Johnson of Georgia. When The Journal reporters asked
    the judges, they profiled why they failed to recuse themselves
    from cases on which they had a clear financial conflict of
    interest, several of them blamed the judiciary's conflict-
    checking software. That simply cannot be a valid excuse. Aren't
    judges responsible for knowing what stock they and their
    spouses hold and taking the necessary steps to avoid hearing
    cases that they must recuse themselves from?
        Judge Elrod. Chair Johnson, judges are responsible for
    maintaining a list of all their financial holdings, and being
    knowledgeable about their financial holdings, as well as the
    holdings of their spouse and minor children. So, that is the
    judge's responsibility at all times.
        Mr. Johnson of Georgia. The bottom line is this: If we
    cannot assume that judges are doing something as basic as
    checking whether they own stock in a party, in a case before
    them, Congress may need to act. For example, should Congress
    require that judges affirmatively State that they have checked
    whether they have to recuse themselves from a case and then
    impose penalties for noncompliance?
        Judge Elrod. Mr. Chair, Congress--I know that--I can't
    speak of what Congress is doing, but I can tell you what the
    courts are doing. We are making sure that the judges know they
    have these obligations. We are making sure that we don't have
    gaps in our software, and that these checks are performed at
    the very instance of a case coming to be, and then are
    repeated, should the parties change, or some person's financial
    circumstances change. So, we are making sure.
        As I mentioned before, judges who do not follow these
    policies, which are policies the Judicial Conference that all
    judges check and participate in this, can face discipline from
    the Judicial Council and the chief judge in their circuit.
        Mr. Johnson of Georgia. So, can you commit to providing the
    Committee, pursuant to Congressman Issa's request, a list of
    actions that the conference has taken with respect to holding
    judges accountable for failing to recuse? For failing to
    report?
        Judge Elrod. I cannot commit to providing that list, but I
    certainly will make an inquiry about that. The problem with
    that is that judicial conduct matters are confidential while
    they are ongoing. Sometimes they can give a public reprimand or
    something upon the conclusion of them. If a proceeding is
    ongoing, that is generally considered a confidential
    proceeding. We can follow up with the--
        Mr. Johnson of Georgia. Just simple numbers.
        Judge Elrod. I will follow up with the conference on what
    could be provided.
        Mr. Johnson of Georgia. Thank you.
        A handful of proactive judges have taken the initiative to
    post their own recusal lists, or versions of that information
    online in their local courthouse websites. I applaud them on
    taking those steps and showing that they take their
    responsibility seriously. Shouldn't every judge simply be
    required to post recusal lists online?
        Judge Elrod. Well, there is some problems with the
    requirement to post recusal lists online. First, recusals are
    not only about finances. One reason for recusals might be
    personal relationships, either--or even animosity between
    parties, and the judge, or the judge's family. Disclosing such
    relationships could harm the privacy of third parties.
        Also, and very importantly, publishing these types of lists
    could lead to forum shopping. We are all aware of situations
    where people hire particular lawyers because they think
    someone's going to be recused, or sue a particular party, or
    bring them in. So, there are concerns about forum shopping and
    privacy interest of third parties that would be [inaudible] by
    those types of lists.
        Mr. Johnson of Georgia. Thank you, Judge.
        We will, now turn to the gentlelady from North Carolina,
    Ms. Ross, for five minutes of questions.
        Ms. Ross. Thank you very much, Mr. Chair. Thank you, Judge,
    for being with you us and for taking on quite a heavy load
    dealing with judicial ethics. So, we appreciate both your time
    with us, and your time away from the bench dealing with your
    fellow judges.
        We understand that the judiciary has not made judges' 2019
    annual disclosures publicly available in response to a request
    for all disclosures. Why does it take so long for the
    information to be available? Could this lag prejudice a
    litigant who has grounds to request recusal due to a conflict
    of interest?
        Judge Elrod. Thank you, Congresswoman Ross.
        First, I just want to reiterate that the financial
    disclosure process is under the jurisdiction of the Committee
    of Financial Disclosures and is in a totally separate system
    than the recusal system. One is a transparency measure, and one
    is a recusal judicial ethics measure. I did want to say that it
    is my understanding that the reason these reports have taken a
    long time, and I agree with you that they have taken a long
    time, is that they undertake a lot of these preparations of
    these disclosures when they get so many thousands of requests
    for disclosures, and they do a lot of preparation by hand.
        However, it is my understanding that the judiciary in that
    group, that committee, is developing and implementing a new
    electronic financial disclosure system, which will include
    features for filing and features needed for releasing reports
    to the public on a more timely basis. Obviously, technology can
    help the judiciary in this area. We can do so many more things
    using technology then by hand painstakingly going through these
    reports.
        Obviously, the interest in improving the timeliness, the
    response to these requests to review reports, while also taking
    into account the serious security concerns with the increasing
    availability of personal and sensitive information available
    about judges online. I do believe that the judiciary is in the
    process of automating this process with the goal of improving
    the time limits.
        Thank you. I can't hear you.
        Ms. Ross. I am so sorry.
        To my second question, could the lag prejudice a litigant
    who has grounds to request recusal due to a conflict of
    interest?
        Judge Elrod. I am not familiar with the process of using
    financial disclosures for recusals in cases. I would hope that
    the judge, if they had a financial interest, would recuse. If
    they didn't, as I said, they can be subject to discipline. I
    would hope that we would make sure that we are complying with
    all our obligations. In general, I believe judges are
    conscientious and are trying to get these things out. Also, I
    believe that judges care about not sitting on cases that they
    are not supposed to sit on.
        Ms. Ross. Okay.
        Judge Elrod. So, I think that they would--I believe the
    judges are conscientiously trying to do this, but, of course,
    there have been some gaps that have been identified.
        Ms. Ross. Okay.
        Judges are currently notified when requests for copies of
    their financial disclosures are made, including the identity of
    the requesting party. Could this have a chilling effect on
    whether a litigant makes such a request? Without this
    information, how could a litigant ensure that the judge hearing
    the case does not have a conflict of interest?
        Judge Elrod. Again, I don't deal with personal financial
    disclosures. I haven't studied that issue. I would hope not.
    Judges are, as you pointed out earlier, we have judicial
    independence, and we should recognize that some people will
    want to know information about us. I used to run for office in
    Texas, and people want to know information about judges. People
    want to know information about Federal judges, information that
    doesn't damage our security, or our well-being, or those of
    others, or impact third-party security interests or privacy
    interests. People are going to want to know, and I don't think
    the judges should hold that against litigants.
        Ms. Ross. Okay.
        Thank you, Mr. Chair. I yield back.
        Mr. Johnson of Georgia. Thank you.
        I now turn to the gentleman from New York, the Chair of the
    Full Committee, Mr. Nadler, for five minutes.
        Chair Nadler. Thank you, Mr. Chair.
        Judge Elrod, thank you for testifying today. I would like
    to ask you a similar question to one I posed to the first
    panel. It seems that many of the difficulties with financial
    disclosure and recusals could be avoided if judges and their
    close family members were restricted to holding only mutual or
    index funds. Would that solve this problem, not only
    eliminating the appearance of impropriety, but also making
    things easier on individual judges who would no longer have to
    keep track of all their investments before they take on a given
    case?
        Judge Elrod. Well, Chair Nadler, I agree with you that
    holding mutual funds does simplify the process for judges. As
    we indicate in our guidance to judges, mutual funds can
    ordinarily be a safe harbor for judges. They simplify the
    process for judges. So, do I think that it would solve every
    problem regarding recusal? Certainly not, because there are
    broad and mandatory financial recusal provisions that deal not
    only with stock holdings, but with any financial interest. Then
    also, all the other types of reasons the judges have to recuse
    that don't involve finance at all.
        It is true that although a judge is permitted to own stock,
    the recusal statute and the code also discourage judges from
    having financial interest stock or otherwise that might lead to
    frequent recusals. The codes of conduct states specifically
    that as soon as the judge can do so, without serious financial
    detriment, the judge should divest investments and other
    financial interests that might require frequent
    disqualification. So, judges need to be mindful of all these
    decisions when they are considering what should be in their
    portfolios or considering their spouse or--
        Chair Nadler. I don't understand your answer. If we
    required the judges have everything in a mutual or index fund,
    why wouldn't this solve all the problems we are talking about?
        Judge Elrod. It would help with the financial recusal
    issues, some of them, except for any other type of financial
    interests that wouldn't be a stock-based mutual interest. You
    could hold real property, other types of interests and things.
    Not every--
        Chair Nadler. As far as stocks are concerned, would it be a
    solution?
        Judge Elrod. Well, I keep my funds in a mutual fund,
    because I find that it is much more--it is easier to handle as
    a judge.
        Chair Nadler. I have been surprised by some of the guidance
    provided to judges about how to comply with the Ethics in
    Government Act is not made publicly available. For example,
    neither the public nor Congress can see copies of the
    instructions that judges are given for filling out their
    financial disclosure forms. This is in contrast to Congress and
    the Executive Branch, both of which make their instructions
    publicly available.
        Do you know why all judiciary guidance documents for
    financial disclosures are not made available to the public? Is
    this something that the Judicial Conference is planning to
    revisit as part of its response to The Wall Street Journal
    investigation?
        Judge Elrod. Congressman Nadler, I do not know the answer
    to that question. I don't work on financial disclosures. I am
    not familiar with the guidance documents and the publicity. I
    know financial disclosures as a judge who must complete them
    annually.
        Chair Nadler. Okay. The common response from the judges who
    are asked by The Journal about their failures to recuse, was
    they did not know they were required to recuse under the
    circumstances, either because the investments in question were
    held by a spouse or managed by a money manager. Those
    circumstances fall squarely within the recusal statute. This
    seems like a failure in part of training. How does a Judicial
    Conference plan to redress this going forward?
        Judge Elrod. Congressman Nadler, as I indicated earlier, we
    have already begun training specifically on these issues. I
    conducted such training for my circuit judges already this
    month. We are going to have continued training through the end
    of the year and beyond, but we are going to be having a
    significant amount of training on this very issue. We don't
    want any judge to be ignorant of the rules regarding financial
    holdings. It is very important, because judges are ultimately
    responsible for their financial holdings.
        Chair Nadler. Thank you very much.
        I yield back.
        Mr. Johnson of Georgia. Thank you.
        The gentlelady from North Carolina is, again, recognized
    for five minutes.
        Ms. Ross. Well, thank you for your generosity, Mr. Chair.
        Judge Elrod, I would like to read from a statement from Ms.
    Sherry Cheshire whose husband, Jim, died of Mesothelioma and
    whose wrongful death suit was effectively ended by a judge who
    owned at least $15,000 worth of shares in each of the two
    defendants in that case. The judge's financial conflicts were
    disclosed by The Wall Street Journal.
        Ms. Cheshire wrote to the Chair, and I quote,

            To learn this now, 3 years after our case ended is like
            reopening a painful, painful wound. I always knew that no
            lawsuit would ever bring Jim back. But I did feel that getting
            justice would, in some way, honor Jim and his service to our
            country of which he was always so proud. To now learn that we
            were never going to get justice because the judge had a
            financial interest in two of the companies responsible for
            Jim's death is a shock and a devastating disappointment. I
            thank you for the opportunity to be heard. And I know Jim
            thanks you, too, for hearing him.

        Ms. Cheshire's statement shows that the effect of a judge's
    failure to recuse isn't abstract or hypothetical. It is real.
    The appearance of unfairness causes real pain to the parties
    who come to our courts seeking justice. What would you say to
    Ms. Cheshire in response to her written statement?
        Judge Elrod. Congresswoman Ross, I cannot respond about any
    particular situation regarding any judge and their recusal
    obligations. So, I cannot respond in particular.
        As I stated in my opening statement, it is crucial for the
    integrity of the judiciary that we make sure that we comply
    with our ethical obligations, both to avoid impropriety, but
    also, to avoid the appearance of impropriety. Litigants need to
    know that they have judges will fairly, fairly hear their
    cases.
        Chair Nadler. Would the gentlelady yields?
        Ms. Ross. I yield.
        Chair Nadler. Thank you.
        I just want to ask you, in the kind of a case that was just
    referred to, where it is demonstrated--assume the facts, it is
    demonstrated that someone was not treated fairly because of a
    conflict of interest by the judge. What can be done to right
    that?
        Judge Elrod. Well, the clerk's offices have written to--and
    again, I am not speaking about any particular case, but I know
    that the judges have instructed the clerk's office to notify
    the litigants if they participated. Then the litigants may have
    opportunities to pursue other avenues about the cases. It
    depends on the individual cases. I could not comment on any
    pending case or any particular outcome, but they could pursue--
    litigants, in general, could pursue case--pursue things to open
    their case, or to pursue different avenues regarding in the
    court system for their case.
        Also, as again I have mentioned earlier, the Judicial
    Conduct & Disability Act of 1980 provides ways that judges in
    the judicial council, each circuit, can deal with judges who
    don't obey the rules. Again, I am not talking about any
    particular real-world situation.
        Chair Nadler. I thank the gentlelady for yielding. I yield
    back to you.
        Ms. Ross. Mr. Chair, I yield back.
        Mr. Johnson of Georgia. Thank you.
        I have one question about the conflict-checking software
    that I understand is built into the case management electronic
    case files, or CM/ECF system that the courts use for all court
    business. That system has gone largely unchanged for almost two
    decades. It has been criticized by a range of experts as unfit
    for the business of the United States courts. It has proven
    itself vulnerable to external security risks. Most modern
    conflict-checking software catches even misspellings and close
    variations on names, but CM/ECF cannot.
        I fear that CM/ECF is really not up to the task of
    screening for financial conflicts. It is supposed to be a
    failsafe, a resource of last resort when judges' individual
    personnel conflict checks fail. In response to The Journal's
    reporting of exposure of the widespread failures of that system
    to operate as intended, does the Judicial Conference or the
    administrative office have any plans to update CM/ECF so that
    it is better suited to fulfilling its critical role? If so, can
    you describe what those plans entail and when the public can
    expect to see those plans implemented? Judge Elrod?
        Judge Elrod. Chair Johnson, we have a NextGen CM/ECF that
    also works with our conflict-checking software. Our conflict-
    checking software can check misspellings. If is set up for
    that, it can check missed capitalizations, spaces between
    words. Our conflicts checking software can work at a very high
    level of checking for those things, if it is set for those
    levels. Now, there is a tension between you don't want to
    overset the automated software that might over-recuse based
    upon similar names, parties, and things like that. At the same
    time, you want to make sure you catch them all. So, one of the
    things that we are actually working on right now is determining
    what are the best practices for what the settings should be,
    and then communicating those throughout the districts in the
    United States. I think that is a very important project that
    can be done fairly swiftly.
        Mr. Johnson of Georgia. So, the judges who blamed their
    failure to recuse on the software, what is your explanation for
    that?
        Judge Elrod. Chairman Johnson, I am not here to speak about
    any particular judge's situation or his or her explanation. I
    am here to talk about what I have learned about improvements we
    can make in the judiciary. One improvement we can make is that
    we make sure that every check is done before a case is
    assigned, and that the software is set so that it does capture
    misspellings, missed words, capitalization issues, and things
    like that. So, those are things that can be improved and can be
    improved quickly.
        Mr. Johnson of Georgia. Thank you, Judge Elrod. We
    appreciate your testimony today and for your patience
    throughout this hearing.
        With that, our hearing is adjourned. Thank you, once again,
    to all the Witnesses for appearing today. Without objection,
    all Members will have five legislative days to submit
    additional written questions for the Witnesses, or additional
    materials for the record.
        With that, the hearing is adjourned.
        [Whereupon, at 5:52 p.m., the Subcommittee was adjourned.]

                                    APPENDIX

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