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



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

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

                                HEARING

                               BEFORE THE

    SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

                                 OF THE

                       COMMITTEE ON THE JUDICIARY

                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             FIRST SESSION

                               __________

                       TUESDAY, OCTOBER 26, 2021

                               __________

                           Serial No. 117-44

                               __________

         Printed for the use of the Committee on the Judiciary
         
         
        
 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]      
         
         


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

             U.S. GOVERNMENT PUBLISHING OFFICE 
48-511                WASHINGTON : 2022 
              
               
               
                       COMMITTEE ON THE JUDICIARY

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

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

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

           SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND
                              THE INTERNET

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

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

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

                              ----------                              

                       Tuesday, October 26, 2021

                                                                   Page

                           OPENING STATEMENTS

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

                               WITNESSES
                                Panel I

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

                                Panel II

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

                                APPENDIX

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


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

                              ----------                              


                       Tuesday, October 26, 2021

                        House of Representatives

             Subcommittee on Courts, Intellectual Property,

                            and the Internet

                       Committee on the Judiciary

                             Washington, DC

    The Subcommittee met, pursuant to call, at 2:04 p.m., in 
Room 2141, Rayburn House Office Building, Hon. Henry C. 
``Hank'' Johnson, Jr. [Chair of the Subcommittee] presiding.
    Present: Representatives Johnson of Georgia, Nadler, Jones, 
Lieu, Stanton, Lofgren, Cohen, Ross, Johnson of Louisiana, 
Massie, Bishop, Fischbach, Fitzgerald, and Bentz.
    Staff Present: David Greengrass, Senior Counsel; Moh 
Sharma, Director of Member Services and Outreach & Policy 
Advisor; Cierra Fontenot, Chief Clerk; John Williams, 
Parliamentarian; Atarah McCoy, Staff Assistant; Merrick Nelson, 
Digital Director; Matt Robinson, Counsel; Rosalind Jackson, 
Professional Staff Member/Legislative Assistant; Betsy 
Ferguson, Minority Senior Counsel; Ken David, Minority Counsel; 
and Kiley Bidelman, Minority Clerk.
    Mr. Johnson of Georgia. The Subcommittee will come to 
order. Without objection, the Chair is authorized to declare a 
recess of the Subcommittee at this time. We welcome everyone to 
today's hearing on Judicial Ethics and Transparency: The Limits 
of Existing Statutes and Rules.
    Before we begin, I would like to remind Members that we 
have established an email address and distribution list 
dedicated to circulating exhibits, motions, or other written 
materials that Members might want to offer as part of our 
hearing today. If you would like to submit materials, please 
send them to the email address that has been previous the 
distributed to your office and we will circulate the materials 
to Members and staff as quickly as we can.
    I would also ask all Members to mute your microphones when 
you are not speaking. This will help prevent feedback and other 
technical issues. You may unmute yourself any time you seek 
recognition.
    I would also ask all Members with direct questions to Mr. 
Hedtler-Gaudette, who is on our first panel of Witnesses to 
please identify yourself when asking a question. Also, if you 
use any kind of visual aid during your remarks or while you are 
asking questions to Mr. Hedtler-Gaudette, please describe that 
visual.
    Finally, I would like to add that Professor Greene must 
leave by 4:45 p.m., so please prioritize your questions to 
Professor Greene to the extent necessary. I will now recognize 
myself for an opening statement.
    Good afternoon, and welcome, Witnesses, to today's hearing. 
I didn't have a chance to greet you all personally before the 
hearing, but please accept this as my humble offer. We are here 
today to explore and to consider disturbing facts that have 
been brought to light by recent reporting about the failure of 
Federal judges to recuse themselves in cases where they or 
their family held a financial interest. We will also examine 
how the laws and rules currently on the books have fallen short 
and failed to prevent the circumstances exposed in that 
reporting. Central to our discussion today will be the 
appearance of impropriety and the appearance of impartiality, 
which is an essential component of our constitutional system of 
justice. Justice John Marshall Harlan, the great dissenter, 
said that, quote, ``the appearance of evenhanded justice is at 
the core of due process,'' end quote.
    Appearances matter. It is in the appearance of impartiality 
that Americans find faith in their courts and trust in their 
democracy. That is one reason why the recent reports from The 
Wall Street Journal exposing numerous instances where judges' 
decisions have appeared to be biased or partial, or improperly 
influenced by their financial interests are so disheartening. 
The damage has been done. Federal judges did not follow the 
law. We do not know whether any judge specifically acted to 
benefit his or her ownership interest, but the appearance of 
impropriety has already tainted their judgments. 
Notwithstanding any actual undue influence, the fact that the 
130-plus judges profiled in The Journal appear as if they might 
have acted with their pecuniary interest in mind is enough to 
shake the public's confidence in the United States Judiciary. 
This is especially frustrating because the judges at the center 
of this expose failed to meet the very modest demands placed on 
them by their lifetime tenure in the Federal courts.
    The Executive and Legislative Branches are subject to 
expensive and frequent financial reporting requirements, as 
well as strict ethical rules on matters on which they have a 
financial interest. For judges, the bar is much lower. Judges 
need only disclose limited information about their finances 
once a year, and then recuse themselves from any cases in which 
they have a financial interest. The recusal is critical, and 
the recusal is where these judges broke the law. The Supreme 
Court has described the statutory requirement for judicial 
recusal as, quote, ``steps necessary to maintain public 
confidence in the impartiality of the Judiciary,'' end quote. 
Yet, what The Journal has shown us are judges deciding cases 
while being part owners of the parties in front of them, 
trading, and profiting on trades of shares of those parties. In 
at least one instance, making a ruling in favor of those 
parties which was later overturned on appeal. These failures to 
recuse were not isolated cases, nor were they limited to 
individual judges.
    The Journal reported on 131 Federal Judges participating in 
685 cases in which they had a financial interest, 61 judges 
actively traded stocks in the companies before them while their 
cases were pending. Fully one-fifth of the judges who had 
disclosed their financial interest decided a case in which that 
interest was implicated, one-fifth. These concerns were not 
limited to the lower courts.
    The Supreme Court is not bound by a code ethics to protect 
its Members from the appearance of impropriety, which was the 
subject of legislation I introduced last Congress, and which I 
plan on reintroducing soon.
    Today, we learn more about what Congress can do to make 
sure that Members of our Judiciary take the steps necessary to 
avoid violating the recusal statute and the troubling 
appearances of impropriety that result.
    I am proud to join my esteemed colleague, Ms. Ross, in 
introducing the Courthouse Ethics and Transparency Act, which 
would address head on many of these lapses in regulations 
surfaced by The Journal's reporting. These reforms are critical 
to maintaining the public's confidence in the decisions and in 
the authority of the courts. That brings us to our 
distinguished panelists. Our first panel is comprised of 
experts and advocates in the fields of judicial ethics, and 
transparency, and constitutional law, who will enlighten us on 
the legal and constitutional issues involved in restoring and 
maintaining the strength of the Federal Judiciary, particularly 
the public's perception of judges' legitimacy and impartiality.
    We will then be joined by a member of the Federal 
Judiciary, and a leader in the Judicial Conference, the body 
that is responsible for guiding and assisting judges in the 
satisfaction of their statutory responsibilities.
    Thank you, and I look forward to your testimony. It is now 
my pleasure to recognize the Ranking Member of the 
Subcommittee, the gentleman from California, Mr. Issa, for his 
opening statement.
    Mr. Issa. Thank you, Mr. Chair.
    It is somewhat less frequent than I would like for Members 
here on the dais to be in total agreement. Perhaps it is not 
surprising that we are in total agreement about what another 
branch of government should do. Just a few years ago, we came 
to an agreement on a bipartisan and bicameral basis on what 
came to be known as the STOCK Act. The fact is, we recognized 
that the ownership, either by ourselves or our family members, 
and or the trading needed to be not only eventually disclosed, 
but disclosed publicly in real time. That disclosure has given 
the public an opportunity to have greater confidence that what 
a Member is doing is, in fact, consistent with what they own 
and vice versa, that trades made on what might be inside 
information, are, in fact, discovered in a reasonable period of 
time.
    The public believes that which is made public is, in fact, 
that which keeps of private from inappropriately dealing. That 
is what we are discussing here today. It is likely to be, as 
the Chair said, a subject of real legislation to bind the 
article III, the third branch, to substantially the same rules 
as the other two branches are bound to. Some might say that the 
independence of the Judiciary would be tarnished, or, in some 
way, limited by the Congress mandating these rules for article 
III.
    Nothing could be further from the truth. The reality is 
that the judicial branch has not done for itself, it does so at 
the peril of its legitimacy. The regaining of the legitimacy by 
the Federal court system requires not only that the judges, but 
all the other key staff, just as in the House, just as in the 
Senate, just as in the Executive Branch that have access to 
inside information and might very well trade on it, be open and 
transparent. Anything less, I believe will, in fact, affect us 
adversely.
    There is a statement that we all heard, and we heard the 
Chair announce it, that it is the requirement of a judge to 
recuse himself. I disagree with that standard. I disagree with 
that standard vehemently. It is, in fact, the judge's 
responsibility to do so. If the judge does not do so, it is the 
right of the American people to insist, based on public 
disclosure, that the questioning of a judge be done 
proactively, in real time, in a way that would, in fact, allow 
what could be a long, expensive, laborious, and even capital 
decision to be made by an independent judge. You cannot unring 
a bell, and you cannot get an impartial hearing by a judge, 
even if it is done a second time there is considerable damage.
    So, Mr. Chair, I applaud you for holding this hearing. I am 
obviously predicting that we will act, and that it is likely 
that we will act consistent with the STOCK Act and other 
transparency rules that the other branches live under. I thank 
the Chair again for holding this hearing and agree completely 
with his opening statement.
    I yield back
    Mr. Johnson of Georgia. I thank the gentleman from 
California for his remarks.
    Next, I will recognize the Chair of the Full Committee, the 
gentleman from New York, Mr. Nadler, for his opening statement.
    Chair Nadler. Thank you, Mr. Chair Johnson, and Ranking 
Member Issa for holding this important hearing today.
    The Federal Judiciary is a pillar of our Nation's 
government, an institution nearly synonymous with withholding 
the rule of law. Congress, as a coequal branch, conducts 
oversight of the courts with hearings such as this one. It is 
with the following goal in mind: To promote and protect this 
vital institution to safeguard judicial independence and 
maintain public confidence in our courts.
    Our Federal Judiciary is the envy of the world. Congress 
has a clear interest in ensuring that this hard-earned 
reputation is maintained. Today's hearing is a necessary part 
of that process. As mentioned by the Chair and Ranking Member, 
an investigation by a team of journalists at the The Wall 
Street Journal found that at least 131 Federal Judges appeared 
to have unlawfully and unethically failed to recuse themselves 
from cases which they and their families had a financial 
interest.
    Many judges even actively traded shares in the companies 
that were appearing before them as litigants. What The Journal 
uncovered appears to constitute a massive failure of not just 
individual judges, but of the entire system that is ostensibly 
in place to prevent this unlawful conduct.
    Troublingly, many judges simply refuse to comment on their 
apparent violations of the recusal of ethics laws. Others blame 
their clerks, their conflict checking software, or even the 
litigants themselves. Other judges, however, were clearly 
aghast that they missed the financial conflict of interest and 
welcomed the opportunity to try to make things right.
    One judge put it best when he said, ``I just blew it. I 
regret any question that I have created an appearance of 
impropriety or a conflict of interest.'' He should be credited 
for his candor, because it reflects exactly the kind of 
integrity and clear sightedness that makes for an exceptional 
judge.
    With a problem that seems to be this widespread, it would 
be wrong to single out any one judge. To its credit, the 
administrator of the courts said that it took the matter 
seriously. It is clear that the safeguards in place to prevent 
this kind of misconduct are simply not up to the task. I hope 
the revelations uncovered by The Wall Street Journal's 
reporting will spark a thorough reexamine of these safeguards, 
especially since some of the weaknesses in the current system 
were already well-known.
    Two years ago, this Subcommittee held a hearing on judicial 
ethics and transparency that seems to have foretold many of the 
problems that The Wall Street Journal's reporting has brought 
to light. At that hearing, our distinguished Witnesses told us 
that Congress should require the judge's financial disclosure 
forms which are necessary to detect potential conflicts of 
interest be made publicly available in a searchable online 
database.
    Our Witnesses recommended that judges should be required to 
make the recusals publicly available, along with their reasons 
for recusing. Our Witnesses told us that attorneys were afraid 
to ask the judge to recuse themselves and recommended that a 
recused motion should be decided by a different judge or panel 
of judges. Our Witnesses told us that the judiciary's decisions 
regarding ethics and recusal must be made transparently and 
fairly.
    Our Witnesses also made clear that Congress has an 
obligation to act when the judiciary self-regulating efforts 
fall short. Last Congress I joined Chair Johnson and 
Representative Quigley in introducing the 21st Century Courts 
Act which included a range of reforms to the laws governing 
judicial ethics, recusal, and transparency.
    Many of the provisions in our bill drew from the Judiciary 
ROOM Act which Ranking Member Issa championed when he was Chair 
of the Subcommittee, and was passed by this Committee 
overwhelmingly. The Wall Street Journal's investigation and 
other events have made clear that those reforms are not only 
sorely overdue, but that they must be strengthened.
    I am hopeful that that today's distinguished Witnesses will 
provide us with excellent suggestions on what reforms to 
include in an updated version of the 21st Century Courts Act 
which we plan on reintroducing soon.
    I look forward to their testimony. I yield back the balance 
of my time.
    Mr. Johnson of Georgia. I thank the gentleman from New 
York.
    We will now turn to our Witnesses for our testimony. We 
will have two panels of Witnesses at today's hearing. The first 
is a panel of experts on judicial ethics and constitutional 
law. The second is a Member of the Judiciary. I will now 
introduce the first panel of Witnesses, but not before I remind 
Members that the guidance from the attending physician states 
that face coverings are required for all meetings in an 
enclosed space, such as Committee hearings, except when you are 
recognized to speak. I would ask my colleagues to comply with 
that rule.
    I will turn now to introducing the Witnesses.
    Professor Renee Knake Jefferson, holds the Larry Doherty 
Chair in Legal Ethics at the University of Houston Law Center. 
Professor Jefferson has been recognized both in the United 
States and abroad as an expert on professional responsibility 
and legal ethics. She regularly assists in legal matters in 
involving judicial ethics and has testified before the Texas 
Supreme Court of review on this issue.
    Professor Jefferson earned her B.A. in communications from 
North Park college in Chicago, Illinois, and a J.D. from the 
University of Chicago Law School. Welcome, Professor Jefferson.
    Dylan Hedtler-Gaudette is a government affairs manager at 
Project on Government Oversight where he champions good 
government policy solutions, such as judicial ethics and 
transparency. Mr. Hedtler-Gaudette is an expert on both 
judicial ethics and institutional reform. His work is 
frequently cited in popular nationwide news outlets. Mr. 
Hedtler-Gaudette has his undergraduate degree in political 
science and economics from the University of Southern Maine, 
and his master's in international relations from Northeastern 
University. Welcome, Mr. Hedtler-Gaudette.
    Professor Thomas Morgan teaches professional responsibility 
and antitrust law at George Washington Law School. Professor 
Morgan has published numerous articles on professional 
responsibility and legal ethics. Before teaching at GW Law, 
Professor Morgan served as Dean the Emory University School of 
Law, and as a President of the Association of American Law 
Schools. Professor Morgan has his B.A. from Northwestern 
University, and J.D. from the University of Chicago. Welcome 
Professor Morgan.
    Professor Jamal Greene is the Dwight Professor of Law at 
Colombia Law School. He specializes in constitutional law, 
constitutional theory, and the Federal courts. Professor Greene 
authored a book released earlier this year and has written 
numerous law review articles and publications such as the 
Harvard Law Review and Colombia Law Review. His nonacademic 
work has been featured in many national publications.
    Before joining academia, Professor Greene served as a law 
clerk to Judge Guido Calabresi on the Second U.S. Circuit Court 
of Appeals, and to Judge John Paul--Justice John Paul Stevens 
on the United States Supreme Court. Professor Greene has a B.A. 
from Harvard College and a J.D. from Yale Law School. Welcome, 
Professor Greene.
    Before proceeding with your testimony, I hereby remind each 
Witness that all your written and oral statements made to the 
Subcommittee in connection with this hearing are subject to 
penalties of perjury pursuant to 18 U.S.C. 1001, which may 
result in the imposition of a fine or imprisonment of up to 
five years or both, should one suffer a conviction. Please note 
that each of your written statements will be entered into the 
record in its entirety. Accordingly, I ask that you summarize 
your testimony in five minutes. To help you stay within that 
time, there is a timing light on your table. When the light 
switches from Greene to yellow, you have one minute to conclude 
your testimony. When the light turns red, it means that your 
five minutes have expired.
    Professor Jefferson, you may begin.

               STATEMENT OF RENEE KNAKE JEFFERSON

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

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

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