[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
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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
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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
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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:]
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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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