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

      BUILDING CONFIDENCE IN THE SUPREME COURT THROUGH ETHICS AND RECUSAL
                                    REFORMS

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

                                    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

                                 SECOND SESSION

                                   __________

                           WEDNESDAY, APRIL 27, 2022

                                   __________

                               Serial No. 117-64

                                   __________

             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
    48-845                  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

             AMY RUTKIN, Majority Staff Director and Chief of Staff
                   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

                                  ----------

                           Wednesday, April 27, 2022

                                                                       Page

                               OPENING STATEMENTS

    The Honorable Henry C. ``Hank'' Johnson, Jr., Chair of the
      Subcommittee on 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...........................     6
    The Honorable Jim Jordan, Ranking Member of the Committee on the
      Judiciary from the State of Ohio...............................     8

                                   WITNESSES

    Mr. Gabe Roth, Executive Director, Fix the Court
      Oral Testimony.................................................    34
      Prepared Statement.............................................    36
    Mr. Donald K. Sherman, Senior Vice President and Chief Counsel,
      Citizens for Responsibility and Ethics in Washington
      Oral Testimony.................................................    48
      Prepared Statement.............................................    50
    Mr. Mark R. Paoletta, Partner, Schaerr Jaffee LLP
      Oral Testimony.................................................    64
      Prepared Statement.............................................    67
    Mr. Stephen Gillers, Elihu Root Professor of Law, New York
      University Law School
      Oral Testimony.................................................    75
      Prepared Statement.............................................    77

              LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    An article entitled, ``House panel to explore impeachment,
      judicial ethics in wake of Ginni Thomas texts,'' The Hill,
      submitted by the Honorable Darrell Issa, Ranking Member of the
      Subcommittee on Courts, Intellectual Property, and the Internet
      from the State of California, for the record...................     6
    Materials submitted from 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 statement from the Project On Government Oversight...........    16
      A letter from Wade Henderson, Interim President & CEO, and
        Jesselyn McCurdy, Executive Vice President of Government
        Affairs, The Leadership Conference on Civil and Human Rights.    27
      A letter from Rakim Brooks, President, Alliance for Justice....    30
    Materials submitted by the Honorable Eric Swallwell, a Member of
      the Subcommittee on Courts, Intellectual Property, and the
      Internet from the State of California, for the record
      A report from the U.S. Government Accountability Office........   106
      A letter from the Honorable Chris Van Hollen, United States
        Senator from the State of Maryland...........................   118
    A statement from Thomas Jipping, Senior Legal Fellow, Edwin Meese
      III Center for Legal and Judicial Studies, The Heritage
      Foundation, submitted by the Honorable Jim Jordan, Ranking
      Member of the Committee on the Judiciary from the State of
      Ohio, for the record...........................................   132

                           BUILDING CONFIDENCE IN THE

                SUPREME COURT THROUGH ETHICS AND RECUSAL REFORMS

                                  ----------

                           Wednesday, April 27, 2022

                            House of Representatives

                 Subcommittee on Courts, Intellectual Property,

                                and the Internet

                           Committee on the Judiciary

                                 Washington, DC

        The Committee met, pursuant to call, at 2:04 p.m., in Room
    2141, Rayburn House Office Building, Hon. Hank Johnson [Chair
    of the Subcommittee] presiding.
        Members present: Representatives Nadler, Johnson, Jones,
    Jeffries, Lieu, Stanton, Cohen, Swalwell, Ross, Neguse, Jordan,
    Issa, Chabot, Gohmert, Gaetz, Johnson, Tiffany, Massie, Bishop,
    Fitzgerald, and Bentz.
        Staff present: Aaron Hiller, Chief Counsel and Deputy Staff
    Director; John Doty, Senior Advisor and Deputy Staff Director;
    Arya Hariharan, Chief Oversight Counsel; David Greengrass,
    Senior Counsel; Moh Sharma, Director of Member Services and
    Outreach & Policy Advisor; Brady Young, Parliamentarian; Cierra
    Fontenot, Chief Clerk; Gabriel Barnett, Staff Assistant; Daniel
    Rubin, Communications Director; Merrick Nelson, Digital
    Director; Jamie Simpson, Chief Counsel for Courts & IP; Evan R.
    Christopher, Counsel for Courts & IP; Matt Robinson, Counsel
    for Courts & IP; Matt Robinson, Counsel for Courts & IP; Atarah
    McCoy, Professional Staff Member/Legislative Aide for Courts &
    IP; Betsy Ferguson, Minority Senior Counsel; Elliott Walden,
    Minority Counsel; Andrea Woodard, Minority Professional Staff
    Member; and Kiley Bidelman, Minority Clerk.
        Mr. Johnson of Georgia. The Subcommittee will please come
    to order.
        Without objection, the Chair is authorized to declare
    recesses of the Subcommittee at any time.
        We welcome everyone to this afternoon's hearing on Building
    Confidence in the Supreme Court through Ethics and Recusal
    Reforms.
        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 today's
    hearing. If you would like to submit materials, please send
    them to the email address that has been previously distributed
    to your offices and we will circulate the material to Members
    and staff as quickly as we can.
        I would also like to ask Members to please mute your
    microphones when you are not speaking. This will prevent
    feedback and other technical issues. You may unmute yourself
    any time you seek recognition.
        I will now recognize myself for an opening statement.
        We are here today to consider a question that goes to the
    heart of our democracy: Should the United States Supreme Court,
    the highest court in our Nation and one of the most powerful
    judicial bodies in the world, abide by a uniform and binding
    set of ethics rules?
        Ours has been described as a government laws and not of
    men. Nowhere is that principle more essential than in the fair
    and even-handed Administration of justice. This house is built
    on the rule of law; its foundation is fairness, transparency,
    and accountability. The lack of enforceable ethical standards
    for judicial officers is a crack in that foundation.
        It is a flaw that was first recognized nearly 50 years ago
    when the judges of the lower Federal courts wrote and adopted
    an ethics code to bind themselves to better conduct. That code
    does not apply to the Supreme Court. The justices were
    unpersuaded by the actions of their judicial peers and did not
    see the need to Act then. They refuse to Act now.
        The result is sadly predictable: A steady stream of
    revelations that justices have approached the line of
    acceptable behavior in an ethical gray area or, seemingly, more
    and more often have crossed the line entirely. The propensity
    to transgress is not limited to the justices appointed by
    presidents of one political party. I am afraid it is not a
    coincidence that recent polling has shown a marked decline in
    public confidence in the Supreme Court.
        Other events have made it disturbingly clear that without
    explicit enforceable rules, certain members of the high court
    are going to try to keep trying to get away with more and more,
    until they have gotten away with our whole republic. I am
    alarmed, for example, about unanswered questions about Justice
    Thomas' failure to recuse from a decision that we now know
    might have implicated the actions of his wife and her apparent
    efforts to overturn the 2020 election.
        This problem is much bigger than Clarence Thomas, however.
    His is a case in point for why enacting enforceable ethics
    rules is long past due.
        Today we explore how to fix that crack in our foundation.
    If the justices of the Supreme Court will not Act to safeguard
    their constitutional responsibilities as impartial judicial
    officers, then it is up to this body. It is Congress'
    responsibility to make laws governing the Federal Courts, which
    includes the Supreme Court. There are several bills that would
    bring much-needed improvements to the ethics and recusal
    practices of the Supreme Court justices.
        These include two bills I have been proud to lead in the
    House: The Supreme Court Ethics Act and the 21 Century Courts
    Act of 2022. Any meaningful ethics reform must include
    meaningful recusal reform. They go hand-in-hand and are crucial
    to ensuring that the decisions made by unelected officers who
    serve for life, and who have the power to say what the law is,
    are made fairly and without respect to persons or profits.
        That brings us to today's hearing and our distinguished
    panelists. I thank you in advance for your expertise and for
    the time you have devoted to these subjects and to this
    hearing. I look forward to your testimony.
        Now, I will recognize the Ranking Member for his statement.
        Mr. Issa. Thank you, Mr. Chair. Thank you for holding this
    important hearing. I look forward to our Witnesses.
        First, I would like to ask unanimous consent that we submit
    into the record an article penned yesterday from The Hill
    titled, ``House panel to explore impeachment, judicialethics in
    wake of Ginni Thomas texts.''
        Chair Nadler. Without objection.
        [The information follows:]

                            MR. ISSA FOR THE RECORD

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

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Issa. Thank you, Mr. Chair.
        I am going to comment only on the, the headline here today.
    A headline like that does no good to the court, and it does no
    good to, in fact, this body. The actions, or beliefs, or views
    of a spouse of a member of the court cannot, should not, and
    will not ever be grounds for impeachment of a judge. That, I
    think, goes without saying. I am appalled that this kind of
    rumor and innuendo would even get into a headline, whether or
    not the context is appropriate.
        We have nine justices of the Supreme Court. Those justices
    are well-respected. They are humans, men, and women, they are
    not perfect. They are mostly married or widowed. They, in fact,
    have lived long lives and served our country well. None of that
    is going to be doubted today.
        There is a question, and it is a legitimate question for us
    here in this body. The Supreme Court does not and cannot make
    laws. The Executive Branch is not empowered to make laws,
    although regulations sometimes carry the power of law. We are
    empowered with that.
        Therefore, the question of whether or not mandates under
    law shall be placed on the other two bodies will always be
    determined by this body. A voluntary standard by the Executive
    Branch can be changed by the Executive Branch. A voluntary
    standard by article III, the Judicial Branch, can we have
    changed by them.
        Only a law passed by this body and signed by the President
    is binding on all of us until perpetuity or until changed by
    similar statute. That is what we will be considering today and
    in the days to come. I think we do so and must do so soberly
    because the separation of powers is real, and it is for a valid
    reason.
        So, as we listen to the Witnesses and as we look at
    potential legislation, I know that all of us here on the dais
    will, in fact, do so knowing that we must measure carefully,
    measure again carefully, and make those cuts into the very
    fabric of our Constitution very sparingly.
        Having said that, I am afraid that the opening comments
    that I put in from The Hill newspaper could in fact be the
    subject du jour. They should not. The question of whether or
    not there should be additional legislation affecting the
    justices of the Supreme Court is one that I am perfectly
    willing now and, in the future, to consider. Whether or not we
    are to pass a law, or to recuse, or to somehow admonish a
    justice of the Supreme Court because they had the audacity
    decades ago to marry somebody with an opinion is not something
    I want to hear, or discuss, or try today.
        With that, Mr. Chair, I yield back.
        Mr. Johnson of Georgia. I am now pleased to recognize the
    Chair of the Full Committee, the gentleman from New York, for
    his opening statement.
        Chair Nadler. Let me start by assuring my friend Mr. Issa
    that, as far as I know, nobody in this body wrote that
    headline.
        Thank you, Mr. Chair, for holding today's important
    hearing. The Supreme Court is one of the nation's most vital
    institutions whose duties are sacred: To administer justice and
    uphold the rule of law, and to do so independently and fairly.
        Now, and as always, the court's fidelity to the principles
    of legal and impartial justice, as well as the public's faith
    in the integrity of the judiciary, are foundational to
    maintaining the rule of law. Our Federal judiciary is the envy
    of the world, and Congress has an obligation to ensure that
    this hard-earned reputation is maintained.
        Unfortunately, the reputation of the court has been
    undermined in recent years by the actions of the justices
    themselves across the ideological spectrum. We expect the
    justices of our nation's highest court to hold themselves to
    the highest standards of ethical conduct but, in fact, their
    conduct too often falls below the standards that lower court
    judges are required to follow.
        Public faith is weakened by every story about a justice
    being treated to a lavish junket, accepting an unreported gift,
    or failing to disclose an asset, appearing on stage or on
    social media with a political candidate, attending $350-a-head
    dinners hosted by dark money groups, or meeting behind closed
    doors with entities that have interests before the court.
        People are justifiably shocked when they learn that not
    only is there no code of conduct for the Supreme Court but that
    the justices have steadfastly opposed the creation of one.
    Every Member of Congress is subject to a code of conduct, as is
    every other Federal judge.
        Article I and the administrative law judges in the
    Executive Branch are subject to even more stringent ethics
    requirements, including a statutory prohibition on criminal
    conflicts of interest.
        Even more concerning are the justices repeated failures to
    abide by the Federal recusal statute, which does apply to them.
    Not a year seems to go by without another example in which a
    justice fails to recuse themselves despite having a financial
    connection to a party, or having participated in a case before
    they became a justice, clear grounds for recusal.
        A number of justices have suggested that they are subject
    to a less stringent recusal standard than every other Federal
    judge, even that the law might not apply to them in the same
    way as to other judges or at all.
        In recent years, the recusal problem has grown much more
    serious. Last year, for example, Justice Barrett refused to
    recuse from a case involving a group that had spent more than a
    million dollars advocating her appointment to the bench. Three
    justices refused to recuse from a case involving a publisher
    who had given them six- and seven-digit book deals. Of course,
    we know that Justice Thomas failed to recuse from at least one
    case involving the attempt to overturn the 2020 election,
    despite his wife's apparent direct and active involvement in
    that effort.
        The appearance of impropriety and disregard for the law can
    have devastating effects on the public's trust and the
    integrity and independence of the judiciary. Our constitution
    system suffers when it looks like the justice of the Supreme
    Court, the very people we entrust to maintain the rule of law,
    think that they themselves are above the law. Thus, we must
    remain vigilant against attempts to undermine the foundational
    ideals of impartiality and fairness upon which the public must
    rely.
        With the seriousness of this obligation in mind, I look
    forward to hearing from our distinguished panel of Witnesses. I
    yield back the balance of my time.
        Mr. Johnson of Georgia. Thank you. I am pleased now to
    recognize the Ranking Member of the Full Committee, the
    gentleman from Ohio, Mr. Jordan, for his opening statement.
        Mr. Jordan. Thank you, Mr. Chair.
        Everyone can see through the Democrat's charade here today.
    This isn't about ethics, or justice, or the separation of
    power, this is a partisan attack on the highest court in the
    land. The modern Left has zero tolerance for people who don't
    adhere to their progressive ideology.
        Democrats control the Executive Branch, they control the
    bureaucracy, they control Congress, and they control this
    Committee, world progressives control the media and academia--
    academia, excuse me, they are making inroads in big business,
    and they control most of big tech. Used to control all big tech
    until just a couple days ago. Just the fact that one part of
    big tech may in fact now recognize free speech and the First
    Amendment they are going crazy.
        There is one place of power that the Democrats don't
    control, and they can't stand it. They can't stand the fact
    that they don't control the United States Supreme Court.
    Doesn't matter that the conservative justices on the Supreme
    Court were nominated and confirmed by the Senate for life terms
    in line with what our founders put in the U.S. Constitution,
    Democrats can't stand that conservative justices serve on the
    bench. They are willing to destroy the Supreme Court itself to
    get their way.
        They are so desperate to take down our time-honored
    institutions in furtherance of their radical agenda that last
    year senior Members of this Committee put out a bill to pack
    the Supreme Court. These Democrats, including the Chair and the
    Chair of this Subcommittee, suddenly decided that, despite 150
    years of precedent, the magic number for the Supreme Court
    justices should now be 13. Just so happens that this is the
    exact number that would give Democrats a majority with the new
    appointments that would come from President Biden.
        The Democrat attacks on the integrity of the Supreme Court
    are not just limited to court packing, prominent Democrats have
    said the Supreme Court is ``not well,'' and threatened to
    restructure the court if it doesn't heal itself, meaning decide
    cases the way Democrats want them decided.
        Senator Schumer called out Justice Gorsuch and Kavanaugh by
    name telling them that they would ``will have to pay a price''
    if they ``go forward with these awful decisions.''
        Don't forget how Democrats treated Justice Barrett during
    her confirmation, questioning her faith, something that is
    mentioned in the First Amendment, first thing in the
    Constitution, questioning her faith and whether the ``dogma''
    that lives around her or lives within her.
        Everyone remembers the public character assassination that
    Democrats committed against Justice Kavanaugh.
        These Democrats' attacks aren't new. They go back 30 years,
    back to when Senator Joe Biden Chaired the Senate Judiciary
    Committee. Senator Biden's attacks were so egregious they
    yielded a new verb, whole new word, ``borking,'' named after
    President Reagan's nominee to the Supreme Court in 1988, Judge
    Robert Bork.
        The dictionary defines ``borking'' as attacking or
    defeating unfairly through an organized campaign of harsh
    criticism or vilification. Think about that. Senator Biden's
    attacks were so bad the dictionary had to create a new word to
    describe it. The attacks were successful, and Judge Bork pulled
    his nomination.
        In 1991, Senator Biden tried it again on Justice Thomas. We
    are fortunate that the country, and the country is fortunate
    that Judge Thomas withstood these unfair attacks and is now
    Justice Thomas.
        Here we are, 30 years later and the Democrats on this
    Committee are trying to finish what Joe Biden started. Don't
    take my word for it, read the Chair's own memo. The memo the
    Chair put out in advance of today's hearing has a whole section
    on previous attempts to impeach Supreme Court justices.
        Why? Why would he reference that? The only plausible
    explanation for this is that they are desperate to try to build
    the case to impeach one of the sitting justices in the next few
    months so they can try to remove them and replace them with
    another Biden appointee.
        This is as wrong as it gets. The American people expect
    better from us. There is a border crisis, there is a 41-year
    high inflation rate that is hitting everyone's pocket, there is
    a war in Ukraine, and Democrats are scheming in their ill-fated
    attempt to remove a life-tenured Supreme Court justice. This is
    not what we should be focused on.
        Mr. Chair, I yield back.
        Mr. Johnson of Georgia. Thank you, Mr. Jordan.
        Without objection, all other opening statements will be
    included in the record.
        Before we introduce our panel of Witnesses, without
    objection I will enter the following written Witness statements
    into the record.
        The first is a statement, Project On Government Oversight,
    or POGO, a nonpartisan independent organization devoted to
    exposing government, government waste, corruption, and abuse of
    power. POGO's statement discusses the longstanding need for a
    code of conduct at the Supreme Court, as well as other
    improvements in the recusal and disclosure process.
        The second statement is from the Leadership Conference on
    Civil and Human Rights, a coalition of over 230 national
    organizations committed to promoting and protecting civil
    rights in the United States. The Leadership Conference's
    statement also reinforces the need for decisive action on a
    Supreme Court code of ethics, and strengthen recusal rules to
    ensure balanced, independent decision-making worthy of the
    public's confidence.
        The third is a statement for Alliance for Justice, a
    national organization representing over 130 public interest and
    civil rights groups. Alliance for Justice's statement voices
    support for the work of this Subcommittee in holding this
    hearing, and for the 21st Century Courts Act.
        Without objection, I will so order inclusion in the record.
        [The information follows:]

                     MR. JOHNSON OF GEORGIA FOR THE RECORD

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

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Johnson of Georgia. I will now introduce the panel of
    our Witnesses.
        Gabe Roth is the founder and Executive Director of Fix the
    Court, a nonprofit, nonpartisan organization that has worked to
    increase transparency and accountability across the Federal
    courts, but especially for the Supreme Court, since 2014. Mr.
    Roth earned his undergraduate degree from Washington University
    in St. Louis, and his master's degree from Northwestern
    University's Medill School of Journalism.
        Welcome, Mr. Roth.
        Donald K. Sherman is the Senior Vice President and Chief
    Counsel of Citizens for Responsibility and Ethics in
    Washington, or CREW. Mr. Sherman has a distinguished resume in
    ethics and oversight across the Federal government, including
    time working in the White House, in both the House and Senate,
    and in a Federal agency.
        Mr. Sherman graduated cum laude from Georgetown University
    and earned his J.D. from Georgetown University Law Center.
        Welcome, Mr. Sherman.
        Mark Paoletta, Paoletta, is a partner in private practice
    representing clients in congressional hearings and
    investigations. Before entering private practice, Mr. Paoletta
    most recently served as general counsel for the Office of
    Management and Budget under the Trump Administration, and as
    counsel to former Vice President Mike Pence.
        Mr. Paoletta received his B.A. from Duquesne University and
    his J.D. from Georgetown University Law Center.
        Welcome, Mr. Paoletta
        Professor Stephen Gillers is the Elihu--and I hope I
    pronounced that correct--Elihu, Elihu, okay, either one, he is
    the Elihu or Elihu Root Professor of Law at New York University
    School of Law. He is a nationally recognized expert on legal
    and judicial ethics, and the author of several case books and
    articles, as well as a sought-after lecturer on the regulation
    of lawyers and judges.
        Professor Gillers earned his B.A. from City University of
    New York and his J.D. Cum Laude from New York University School
    of Law.
        Welcome, Professor Gillers.
        Before proceeding with testimony, I would like to remind
    all our Witnesses that you have a legal obligation to provide
    truthful testimony and answers to this Subcommittee, and that
    any false statement you may make today may subject you to 18
    U.S.C. 1001.
        Please note that each of your written statements will be
    entered into the record in their entirety. Accordingly, I ask
    that you summarize your testimony in five minutes. To help you
    stay within that time frame there is a timing light on your
    table. When the light switches from green to yellow, you have
    one minute to conclude your testimony. When the light turns red
    it means that your five minutes have expired.
        We will have five-minute rounds of questions after the
    Witnesses' testimonies.
        Mr. Roth, you may begin.

                         STATEMENT OF GABE ROTH

        Mr. Roth. Thank you.
        Chair Johnson, Ranking Member Issa, Members of the
    Subcommittee, back in 2016, a Supreme Court justice failed to
    recuse in a major patent case despite owning $250,000 worth of
    shares in one party's parent company. That same year, a
    different justice spoke at a $500-per-plate dinner with finance
    and oil executives. Another justice that year omitted from her
    financial disclosure report the fact that a public university
    paid for as many as 11 rooms for her in one of the State's
    fanciest hotels.
        In 2019, in the Supreme Court building, two justices met
    with the head of an organization that had submitted amicus
    briefs in three then unresolved cases.
        In 2020, a justice failed to recuse in a case concerning
    the constitutionality of a Federal law that she likely worked
    on a legal strategy to defend in her previous job.
        Last year, a justice had dinner with a prominent politician
    and a dozen of his friends, and then gave a speech, with the
    politician at her side, in which she said the Supreme Court
    ``is not comprised of a bunch of partisan hacks.''
        These are just a handful of examples of Supreme Court
    justices flouting basic ethics rules in the handful of years
    that my organization Fix the Court has existed. I have dozens
    more in my written statements. None of the justices just
    referenced is Clarence Thomas.
        When asked over the years how they confront questions of
    ethics that go beyond the recusal law, the justices say they
    look to precedent, or scholarly articles, or seek advice from
    their colleagues or law professors. Which precedents, which
    articles, which colleagues, and which professors? That there is
    not a single, definitive source the justices use for guidance
    means that they will be more likely to come up with different
    conclusions about their ethical obligations.
        This era of nine justices operating, as has been said, like
    nine independent law firms must end.
        It shouldn't be the case that half the justice accept
    flights on private planes paid for by big-time political
    benefactors when the rest stick to business or coach, or that
    two justices leave free trips off their annual financial
    disclosures while the rest are filing accurately, or that three
    justices trade individual stocks and are unable to participate
    in some cases because of it and the rest do not, and that two
    justice recuse in cases involving the work of a family member,
    but two justices do not when faced with similar circumstances.
        For these reasons, and more, we need a formal written code
    of conduct for the Supreme Court of the United States.
        A code is not a panacea. The rules governing recusal must
    themselves be expanded and modernized. If a justice's spouse,
    for example, is paid a quarter million dollars at the time her
    employer filed an amicus brief on a major case, that justice
    shouldn't hear the case.
        If a justice received lavish gifts and was flown around the
    country by individuals and organizations funding merits and
    amicus briefs, there should be recusals in those cases. If a
    justice's wife's communications with a third party are subject
    of a congressional investigation, and the Supreme Court is
    asked to rule on the validity of that investigation, the
    justice should recuse.
        The current recusal law says, among other things, that a
    justice--the judge or justice must recuse when ``his
    impartiality might reasonably be questioned.'' I am a
    reasonable person, and I question Justice Thomas' impartiality
    in each of the examples I just mentioned and, sadly, in many
    more.
        I will grant the ``reasonable person'' standard could use
    some improvement. We need a law to ensure judges and justices
    take the proactive step of informing themselves of every
    personal interest and every financial interest of theirs, and
    their spouses, and their families that could be implemented by
    the outcome of a proceeding. They should recuse when those who
    financially backed their confirmation appear as litigants. When
    they are given a free trip, there should be a cooling off
    period afterwards.
        Take that trip, but then wait a few years before you
    participate in a case involving the sponsor.
        All the reforms I have discussed, a formal ethics code, a
    more exacting recusal standard, and a cooling off period are in
    the 21st Century Courts Act of 2022 that was introduced earlier
    this month.
        Now, why do we need this bill? Because time and again we
    see that, left to their own devices, the justices will do
    nothing to improve their policies and build a more modern,
    trustworthy institution. Despite all the ethics lapses I have
    mentioned, the justices have not lobbied--and they and the
    judiciary have lobbyists--the justices have not lobbied for any
    new laws, nor have they put any new accountability measures in
    place, to my knowledge.
        Finally, this hearing is not the first attempt at fixing
    the judiciary's ethics lapses. The campaign to improve the
    recusal law and to impose an ethics code goes back 50 years.
        More recently, though, in 2018, the Full Judiciary
    Committee unanimously passed a reform bill called the Judiciary
    ROOM Act. Led by Ranking Member Issa, the bill included a
    SCOTUS Code of Conduct, a requirement that the justices explain
    their recusal decisions, and a live streaming requirement.
        These elements were carried forward into the 21st Century
    Courts Act of 2020. They are included in the 21st Century
    Courts Act of 2022. It is the spirit of bipartisanship that I
    pray carries the day, and that I hope that we can talk about
    more in our ensuing discussion.
        Thank you again for the opportunity to testify.
        [The statement of Mr. Roth follows:]

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        Mr. Johnson of Georgia. Thank you, Mr. Roth.
        Mr. Sherman, you may begin.

                     STATEMENT OF DONALD K. SHERMAN

        Mr. Sherman. Thank you.
        Chair Johnson, Ranking Member Issa, and Members of the
    Subcommittee, thank you for the opportunity to testify before
    you today about the urgent need for Congress to ensure that
    Federal judges meet the highest ethical standards.
        I am here representing Citizens for Responsibility and
    Ethics in Washington, a nonpartisan, nonprofit organization
    focused on ensuring the integrity of our government
    institutions. Today, there is a crisis of confidence in our
    Federal judiciary. This crisis is the result of a number of
    overlapping failures, but chief among them is the judiciary's
    apparent inability to abide by the rules of ethical conduct
    their high office requires.
        In a nine-year period, more than 130 Federal judges have
    presided over at least 650 cases in which they have a material
    financial interest in one of the parties. These conflicts have
    or will touch every congressional district in America.
        In addition, Supreme Court justices across the ideological
    spectrum have engaged in conduct that raises ethical or
    impartiality concerns.
        One of the more egregious examples in recent memory arises
    from a spousal conflict. Earlier this year, Justice Clarence
    Thomas failed to recuse from a case, Trump v. Thompson, where
    he was the lone dissent in the court's decision to reject
    former President Trump's attempt to block the release of
    documents requested by the January 6th Committee. He did this
    despite his wife Ginni Thomas' active support of and
    communications with Trump Administration officials about the
    subject of the Committee's inquiry, the former President's
    efforts to overturn the 2020 election.
        By deciding to hear this case, Justice Thomas has
    undermined public trust in the court's impartiality. The ethics
    issues facing the court are longstanding and not limited to one
    justice.
        The patchwork of rules and regulations that the Federal
    judiciary developed to police itself has failed, and the
    Supreme Court's unwritten honor system is clearly broken.
    Public confidence in the third branch is at or near all-time
    lows, 53 percent of Americans having an unfavorable view of the
    high court. For an institution whose currency is credibility,
    this is an abject failure.
        Despite having the power of judicial review and enjoying
    life tenure, Federal judges have substantially fewer ethical
    checks than their counterparts in the Legislative and Executive
    Branches. We require even low-level Executive Branch employees
    to abide by a vigorous code of conduct, and we have numerous
    ways to hold them accountable, including by subjecting them to
    the criminal conflicts of interest statute. Yet, our Federal
    judges and justices are exempt from this provision.
        Not only do most government ethics rules not apply to
    Federal judges at all levels, but the Supreme Court does not
    even have a code of conduct to provide clear and binding
    ethical guidance or a transparent process for recusals when
    conflicts do arise.
        It has become clear that the judiciary cannot or will not
    effectively regulate itself. It is now time for Congress to
    step in.
        We recommend three immediate actions that Congress can take
    to rebuild the Federal judiciary's ethics regime.
        First, Congress needs to direct the Supreme Court to adopt
    a code of ethical conduct. Specifically, the code needs to
    include detailed standards to protect the court's impartiality,
    and clear guidance regarding recusal, spousal conflicts, gifts,
    speeches, travel, financial conflicts, and other issues that I
    address in greater detail in my written testimony.
        Second, Congress should enact a blanket prohibition on all
    Federal judges, their spouses, and their dependent children
    owning or trading any individual stocks or other similar
    financial instruments. Banning judges and their families from
    buying and owning individuals' stocks is the simplest way to
    address the financial conflicts that are undermining our
    judicial system.
        Many judges have claimed they are unfamiliar with their own
    assets or ethical obligations. Litigants often don't feel
    comfortable policing conflict concerns. Congress can address
    this issue at scale.
        Third, Congress should apply the Federal Criminal Conflict
    of Interest statute, 18 U.S.C. 208, to the entire Federal
    judiciary. By expanding this key law, Congress would be adding
    a powerful tool to combat egregious ethical misconduct in the
    judiciary, while binding it to similar rules as the other
    branches, as Ranking Member Issa put it in October.
        In closing, it is important to note that the crisis of
    ethics in our government is the result of decades of benign
    neglect by leaders in all three branches of government, not the
    misconduct of one or even a few people.
        Ethics is not a partisan issue. The public can and should
    demand that Federal judges are held to the highest ethical
    standards. As the public's representatives in Congress, the
    task is now yours to mandate reform. Though judges and justices
    interpret and sometimes strike down Federal law, they are not
    above it.
        Thank you for the opportunity to testify. I look forward to
    your questions.
        [The statement of Mr. Sherman follows:]

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        Mr. Johnson of Georgia. Thank you, Mr. Sherman.
        Mr. Paoletta, you may now begin.

                     STATEMENT OF MARK R. PAOLETTA

        Mr. Paoletta. Chair Johnson, Ranking Member Issa, and
    Members of the Subcommittee, thank you for this invitation to
    testify at this hearing, titled ``Building Confidence in the
    Supreme Court Through Ethics and Recusal Reforms.''
    Unfortunately, the title does not reflect what this hearing is
    about. If confidence in the court is lacking, it is not due to
    issues of ethics or recusals. Rather, the confidence in the
    court is undermined by the coordinated campaign by the
    corporate media and Democrats to smear conservative justices
    with the goal of delegitimizing the court.
        Why now? Because liberals fear that the court finally has a
    working conservative majority that may sweep away a number of
    long-time liberal landmark cases that cannot stand up to more
    rigorous constitutional scrutiny. In this effort, Democrats and
    the media are trying to threaten, intimidate, destroy, and
    remove any of the justices who may constitute this new
    majority.
        If you think this is hyperbole, perhaps a brief reminder is
    in order.
        Democrat Senator Chuck Schumer stood on the steps of the
    Supreme Court in March 2020 directly threatening Justices
    Kavanaugh and Gorsuch as the court heard oral argument on an
    abortion case. He said,

            I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You
            have released the whirlwind and you will pay the price. You
            won't know what hit you if you go forward with these awful
            decisions.

        Less than a year earlier, Democrat Senator Sheldon
    Whitehouse, the lead Senate sponsor of this proposed
    legislation, filed an amicus brief in a Second Amendment case
    pending before the Supreme Court, where he threatened the court
    that the court better drop the case or face the consequences.
    He wrote,

            The Supreme Court is not well. And the people know it. Perhaps
            the court can heal itself before the public demands it be
            ``restructured in order to reduce the influence of politics.''

        Now, we are now in the middle of the latest attack in the
    40-year war on Justice Clarence Thomas, this time an all-out
    assault on the justice and his wife Ginni for so-called ethical
    transgressions such as Justice Thomas allegedly failing to
    recuse because of his wife's activities. It is a false and
    malicious attack on two good people.
        The Left hates Justice Thomas because he is a Black
    conservative who has never bowed to those who demand that he
    must think a certain way because of the color of his skin. The
    racist attacks have repeatedly sought to portray Justice Thomas
    as dependent on White people.
        From Judge Larry Silberman on the D.C. Circuit to Justice
    Scalia on the Supreme Court--
        Mr. Lieu. Mr. Chair, this is completely out of order. I
    don't hate Justice Thomas, nothing about his race.
        Mr. Johnson of Louisiana. Let the Witness finish his
    testimony. This is not inappropriate at all; this is regular
    order.
        Mr. Johnson of Georgia. The Witness shall proceed.
        Mr. Paoletta. Always his wife. It is despicable.
        Justice Thomas triggers the Left, exposing their racism.
    Thirty years later, Justice Thomas is still standing strong,
    considered by many to be our greatest justice.
        It appears that the Left also really hates Ginni Thomas
    because she is an outspoken, unapologetic conservative woman.
        Justice Thomas has acted ethically and honorably at all
    times. To date, he has no reason to recuse himself from any
    case because of his wife's opinions or activities. The new
    recusal standards being applied to Justice Thomas have no
    grounding in the law or in precedent.
        Judge Stephen Reinhardt, a liberal icon from the Ninth
    Circuit, did not recuse from a case challenging a ban on same
    sex marriages, even though his wife, who is the head of an ACLU
    chapter, had spoken out against the ban, and her organization
    had even filed, joined two amicus briefs in the court below.
    Judge Reinhardt wrote that his wife's, and this is a quote,
    ``views are hers, not mine, and I do not in any way condition
    my opinions on the positions she takes regarding any issues.''
        Judge Reinhardt concluded that, as Gabe said, ``a
    reasonable person would not believe he would be partial simply
    because of his wife's or her organization's views.'' Judge
    Reinhardt also determined that his wife had no ``interest'' in
    the outcome of this case ``beyond the interest of any American
    with a strong view concerning the social issues that confront
    this nation.'' Sound familiar?
        When Judge Reinhardt voted exactly as his wife and the ACLU
    had advocated, nobody accused him of being a puppet of his
    wife. In fact, Professor Stephen Gillers, co-panelist, filed a
    brief defending Judge Reinhardt, writing,

            A spouse's views and actions, however passionately held and
            discharged, are not imputed to her spouse. A contrary outcome
            would deem a judge's spouse unable to hold most any position of
            advocacy, creating what amounts to a marriage penalty.

        Justice Ruth Bader Ginsburg's husband's law firm appeared
    several times before the Supreme Court, and Justice Ginsburg
    never recused herself. In fact, she voted in favor of Marty
    Ginsburg's colleague's client. Based on the law and precedent,
    Judge Reinhardt and Justice Ginsburg properly did not recuse.
    These, and other examples in my written testimony, prove that
    Justice Thomas is correct in not recusing from any case to date
    because of his wife's activity.
        More troubling, in 2016, Justice Ginsburg directly attacked
    candidate Donald Trump. She called him a faker, trashed him for
    not releasing his taxes, and opined that she feared living in
    America if Trump were elected. Talk about undermining the
    legitimacy of the court.
        She did not recuse from cases involving the Trump
    Administration, including one where President Trump was
    challenging the subpoena to release his taxes. Of course, she
    voted against President Trump. Despite Justice Ginsburg's
    dangerous foray into presidential politics to prevent Donald
    Trump from being elected, no Democrat called for hearings or
    talked of impeaching her for these partisan attacks or her
    refusal to recuse from cases involving President Trump.
        Mr. Johnson of Georgia. The gentleman was interrupted for
    his comments. He needs to finish.
        Mr. Paoletta. There is nothing wrong with ethics and
    recusal at the Supreme Court. The justices are ethical and
    honorable public servants. Moreover, to support any reform
    legislation right now would be to validate this vicious attack
    on the Supreme Court.
        Thank you.
        [The statement of Mr. Paoletta follows:]

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        Mr. Johnson of Georgia. Thank you, Mr. Paoletta.
        Next, Professor Gillers, you may begin, sir.

                      STATEMENT OF STEPHEN GILLERS

        Mr. Gillers. Thank you, Mr. Chair. Thank you for inviting
    me.
        When I talk about judicial ethics to continuing legal
    education classes, hundreds of lawyers, or in class, I always
    wind up saying there are nine judicial officers in the whole
    country who are not governed by an ethics code. This is
    counterintuitive because students or lawyers in the audience
    say, well, aren't those the judicial officers who should most
    be governed by an ethics code? How could this be true?
        I explain how the Codes Committee of the Judicial
    Conference chooses not to adopt a code of conduct for the
    justices. Maybe it cannot. Maybe its position is correct.
        Someone will ask, well, what about Congress? Here we are.
        I say it is not so clear that Congress can do that. I think
    there are serious separation of powers questions over whether
    or not Congress can adopt an ethics code for the court which
    is, like Congress, created by the Constitution. Anyway, it
    would achieve nothing because you could legislate that the code
    for the lower Federal court judges does apply to the justices,
    and then nothing will happen.
        So, the question comes back, well, what about the court?
    Can't the court adopt an ethics code for itself? The answer is,
    of course it can. It adopted a rule governing when justices
    will recuse because of the presence of a lawyer relative in the
    case back in 1993. It could adopt an ethics code. Yet, it
    hasn't.
        It seems to me there is ground here for nonpartisan
    agreement.
        Why hasn't it done so? Well, one reason is, and I think
    Chief Justice Roberts worries about in any way implying that
    the court is subordinate to Congress by adopting a code after
    being told by Congress to adopt a code. I understand that.
        Why can't he and the court adopt a code without that
    pressure? Well, they could say we are doing it because we're
    doing it, we are not doing it because Congress wants us to do
    it.
        The route to getting a code is a separate issue from the
    content of the code or whether there should be a code. Some
    have said, well, it will create an increased risk of a 4-4
    court. That is wrong. Risk of a 4-4 court arises out of the
    recusal statute that does apply to the justices.
        If you look at the code of conduct for U.S. judges, I don't
    think there is another provision there that by itself could
    lead to recusal. There are things that a justice might do that
    would violate another provision and warrant recusal under the
    statute. So, the danger of a 4-4 court is already with us
    because of the statute, not because of the code.
        The final reason I hear is, well, who will police
    compliance? Who will police compliance with the code? The
    answer is, nobody. I think the answer has to be, nobody.
        I disagree with the idea that the other eight justices can
    police compliance with the recusal statute. The bill doesn't
    even anticipate that they will police compliance with the code.
    So, one might ask--and people have asked--well, what is this
    all about then? Is it just about appearances?
        The answer is, yes, it is just about appearances.
    Appearances are really important in my world. We sometimes
    treat appearance issues as Emily Post for the legal profession.
    We like to talk about it, but it's not really needed. It is
    needed. Appearances backed up by promises of compliance will
    achieve a great deal.
        Section 455 is itself all about appearances. Not
    corruption, not bribery, which we deal with in another way. So,
    too, a code with buy-in from the justices will help us persuade
    the American people, who are surprised at the absence of one,
    that it is an institution in which they can put their
    confidence.
        [The statement of Mr. Gillers follows:]

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        Mr. Johnson of Georgia. Thank you, Professor Gillers.
        We will now proceed under the five-minute rule with
    questions. I will begin by recognizing myself for five minutes.
        I will note the fact that in law school I was always taught
    that lawyers and judges should avoid even a hint or an
    appearance of impropriety. For judges, impartiality is on top
    of that.
        I would like to also recognize the fact that there is
    immense popular support for a Supreme Court code of ethics.
    This has come from every quarter: Ethics professors, Members of
    Congress, analysts, and commentators on all sides of the
    political spectrum, from the progressive Left to the avowed and
    life-long conservatives.
        A recent poll found that 71 percent of voters favor a code
    of ethics, including 76 percent of Democrats, and 63 percent of
    Republicans. Few policies are able to attract majorities that
    are so decisive.
        Mr. Roth, your organization has been working on this issue
    for nearly a decade. Have you ever seen so much high-profile
    public support for a Supreme Court code of ethics as we do now?
        Mr. Roth. I think the support has actually been, been
    consistent over time. I have polled this question for since
    2012 when I ran a group called Coalition for Court Transparency
    that was just singularly focused on broadcast, and then it
    became Fix the Court to focus on other issues.
        It always polls in the 70s or 80s, always polls across
    partisan lines. Then, that is just a simple quantitative
    question.
        When you do qualitative, it is kind of like what Professor
    Gillers said, folks are surprised that the Supreme Court don't
    have a code of conduct. So, once they realize that, whether in
    quantitative or qualitative, they are generally supportive,
    regardless of their political valence.
        Mr. Johnson of Georgia. Thank you.
        Mr. Roth, it seems like the only individuals who do not
    support a code of ethics for the Supreme Court are apparently
    Mr. Paoletta and also the members of the Supreme Court itself.
        Are you aware of any other significant opposition to the
    code of conduct applying to Federal--to justices of the Supreme
    Court?
        Mr. Roth. No, I am not.
        To me what is interesting is that in 2019, Justice Kagan
    was testifying about the budget, and the Supreme Court's
    budget, and she was asked about a code of conduct. She said
    Chief Justice Roberts is thinking about implementing one.
        So, this has been on the justices' mind for a while now.
    There hasn't been any updates to that statement in 2019. This
    is definitely something that has been on the justices' mind. I
    think that after many, maybe this year or maybe some more years
    of congressional pressure it will happen.
        Mr. Johnson of Georgia. Thank you.
        Professor Gillers, many of the current Supreme Court
    justices were judges of the lower courts where they were
    subject to more stringent ethical standards. Yet, when they get
    to the high court they act, they start acting in ways they
    could not have acted when they were on the Circuit or District
    Courts.
        Why do you think that is? Is there any merit to the notion
    that justices Act in ethically murky ways simply because they
    can?
        Mr. Gillers. Well, I hope not. Gabe would know more about
    what they do that is questionable.
        Why do people who are promoted from a circuit to the
    Supreme Court Act differently, if they do Act differently? Of
    course, there is no superior. Right? When no one is watching
    and no one can tell you did wrong, as the Supreme Court could
    tell every lower court judge they do wrong, you may not feel as
    conscientious about complying with the same rules that used to
    apply to you, but now do not.
        Mr. Johnson of Georgia. Thank you.
        Mr. Sherman, does this make sense that judges get a
    promotion and, as a result, are subject to less oversight, less
    regulation even as they make more and more consequential, wide-
    ranging decisions?
        Mr. Sherman. It certainly doesn't from an ethics
    standpoint. The justices on the Supreme Court, their decisions
    can't be appealed, their recusal decisions can't be appealed.
    Yet, they have not just a lower standard but no standard, and
    certainly no transparency with respect to how they--their
    recusal decisions.
        It has created significant concerns about the court's
    impartiality.
        Mr. Johnson of Georgia. Thank you.
        Mr. Paoletta, you gave a number of examples of ethical
    lapses perpetrated by Democratic-appointed justices of the
    Supreme Court. Yet, you sit here today opposed to the U.S.
    Supreme Court being bound by a code of ethics itself.
        Can you explain why you make the case for a code of ethics,
    but then you don't want one?
        Mr. Paoletta. The examples I used, Mr. Chair, I actually
    said they didn't violate the recusal laws.
        Mr. Johnson of Georgia. Well, let me ask this question. Are
    there any violations that a sitting Supreme Court justice can
    make that violate the code of ethics that is applicable to
    lower court judges?
        Mr. Paoletta. Again, I think Justice, Chief Justice
    Roberts--
        Mr. Johnson of Georgia. In other words, if they do
    something--
        Mr. Paoletta. Yeah. Chief Justice Roberts, I guess--
        Mr. Johnson of Georgia. --that applies to lower court
    judges--
        Mr. Paoletta. Yeah.
        Mr. Johnson of Georgia. --that they, as Supreme Court
    justices, are doing it, isn't it the same ethical lapse?
        Mr. Paoletta. Right.
        I think my concern, Mr. Chair, is that this is being done
    now. Gabe may say it has been going on for a long time. I find
    it curious that this is happening right now in the court in the
    context of the, sort of the controversy over Justice Thomas.
        Chief Justice Roberts has said that they consult the code
    of ethics. As Professor Gillers says, it is not binding. The
    code of ethics is not a binding document, it is guidance. As he
    says, it is very--
        So, they already consult. Chief Justice Roberts has said
    that every justice consults the code of ethics.
        Mr. Johnson of Georgia. You don't disagree with the fact
    that there is a need for a code of conduct for Supreme Court
    justices? You don't disagree with that, do you?
        Mr. Paoletta. So, I think it, I think the Supreme Court
    should answer that question in terms of--and I think Professor
    Gillers is right, I don't think it would be--
        Mr. Johnson of Georgia. If they fail to answer that
    question, as they have historically, does it mean that there
    should not be a code of ethics that applies to them?
        Mr. Paoletta. I think what the Supreme Court is doing now,
    in terms of their own, the justices consulting a code of ethics
    and the code of ethics is working well enough, is working fine.
        Mr. Johnson of Georgia. Okay. Got you. Thank you.
        We will next go to the gentleman from Louisiana, Mr.
    Johnson, for five minutes.
        Mr. Johnson of Louisiana. Thank you, Mr. Chair.
        Let's just be very blunt and clear about what is happening
    here today, as Mr. Paoletta just indicated. It is very clear
    that our Democrat colleagues, and many Democrats across the
    country, are continuing to bully and intimidate the Supreme
    Court now that there is a conservative majority. I mean, that
    is clear.
        Judicial ethics is obviously a subject worthy of our
    examination, but the Democrats' goal in this hearing is clearly
    to attack Justice Clarence Thomas. We have heard over and over,
    as occasioned by the recent news events. Democrat attacks on
    Justice Thomas and his wife Ginni are overly and overtly
    partisan, and clearly wrong.
        If anybody thinks that the charge that Democrats are
    attempting to bully and intimidate the court is hyperbole, just
    Google. Google the video of the comments that Mr. Paoletta
    mentioned. Just one instance, March 22, Senator Chuck Schumer.
        I am going to say it again, he threatened conservative
    justices on the highest court in this country on the steps of
    the Supreme Court while the court was hearing oral arguments in
    the June Medical Services case, Louisiana abortion case which,
    ironically, I was the trial court litigator on that case before
    it got to Congress years ago.
        This is what he said, this is Chuck Schumer, okay, leading
    Democrat in the U.S. Senate, he says,

            I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You
            have released a whirlwind. You will pay the price. You won't
            know what hit you if you go forward with these awful decisions.

    Staggering that a Member of the U.S. Senate, a leader of the
    U.S. Senate would say such a thing about our third branch and
    the justices who serve there.
        Mr. Paoletta, while Democrats continue their public smear
    campaigns against conservative justices, they, obviously, fail
    to call out the egregious behavior of liberals, judges,
    justices, and politicians.
        Isn't it true that during Justice Ginsburg's tenure on the
    court, her own daughter drafted an amicus brief in a case
    before the court, and the petitioners in the case cited that
    brief numerous times?
        Mr. Paoletta. That is correct.
        Mr. Johnson of Louisiana. Did she recuse herself from that
    matter?
        Mr. Paoletta. She did not.
        Mr. Johnson of Louisiana. In 2016, Justice Ginsburg made
    public comments criticizing then presidential candidate Donald
    J. Trump, calling him a faker, and questioning why candidate
    Trump had yet to overturn his tax returns.
        Do you know whether Justice Ginsburg recused herself from
    matters involving the Trump Administration or President Trump's
    tax returns?
        Mr. Paoletta. She did not.
        Mr. Johnson of Louisiana. My Democratic colleagues
    regularly like to complain about conservative judges and
    justices speaking at Federalist Society events--this is a
    drumbeat that we hear all the time--as if somehow, they are
    engaging in grand conspiratorial discussions.
        Isn't it true that Justice Sotomayor, for example, is
    scheduled to appear at the American Constitution Society, which
    is the Left's version of the Federalist Society, at their
    national convention this summer?
        Mr. Paoletta. Correct.
        Mr. Johnson of Louisiana. I haven't heard any public outcry
    about that. Maybe we should start a petition and ask her not to
    do that.
        Despite these, and countless other examples, Democrats
    would like one set of standards to apply to conservative
    justices like Justice Thomas, and not liberal justices and
    judges.
        Mr. Paoletta, why do you think congressional democrats only
    train their ire on the conservative judges appointed by
    Republican Presidents?
        Mr. Paoletta. Again, I think this is a concerted effort to
    undermine the legitimacy of the court right now with this
    conservative working majority.
        With respect to the Justice Ginsburg example with her
    daughter, in fact a court watcher noticed and said that in
    reviewing the decision that Justice Ginsburg, perhaps
    influenced by her daughter's opinion--law review article, came
    out a copyright hawk which looked like she was influenced by
    her daughter's opinion or article.
        So, I think it is just an effort to delegitimize the court.
        Mr. Johnson of Louisiana. You are probably aware, I know
    Members of this Subcommittee are, that H.R. 2584, the Judiciary
    Act, which is co-authored by Representatives Nadler and Chair
    Hank Johnson, would add four justices to the court to give
    liberals a 7-6 majority. Shows their great concern about that.
        The Judicial Conference's most recent recommendation asked
    Congress to create 77 new District Court judgeships. Our Chair
    of the Subcommittee, Chair Hank Johnson, introduced a bill to
    create 203.
        So, it seems apparent there is a long list of actions and
    activities that they have taken, and statements they have made.
    I am running out of time. I don't have the time to list it all
    here. It is quite clear that there is a grave concern on their
    part that we do have a conservative majority this time around.
    They are taking these desperate attempts to change the rules,
    change the count of judges, change the court itself because
    they are so deeply concerned about that.
        I just think it is just readily apparent. I think it needs
    to be pointed out because it is so obvious. I am grateful for
    the clarity and conviction of your testimony.
        Appreciate all our Witnesses being here. I yield back.
        Mr. Paoletta. Can I just add?
        Mr. Johnson of Georgia. Sure. I have time.
        Mr. Paoletta. Yeah. I mean, the talk from a lot of
    advocates that the court, that conservatives are bought and
    paid for by dark money is really just so offensive. It shows up
    in some of the testimony here. The idea, and Senator Whitehouse
    is the one who pushes this the most, which is that these five
    or six justices are bought and paid for by dark money on the
    conservative side is absolutely offensive to me.
        Mr. Johnson of Louisiana. Unbelievable, unbelievable.
        Thank you, I yield back.
        Mr. Johnson of Georgia. We will now hear from the gentleman
    from New York for five minutes.
        Chair Nadler. Thank you, Mr. Chair.
        Professor Gillers, whom I have admired for many years, and
    not just because he teaches at NYU in my district, seems to
    think that anything we may do about a code of ethics for the
    Supreme Court is unconstitutional and unenforceable.
        Would you comment on that, Mr. Sherman?
        Mr. Sherman. Thank you for the question, Congressman.
        Well, as another Witness who appeared before the Committee
    in October, Professor Jamal Greene of Columbia, testified
    Congress has broad constitutional authority to provide that
    ethics rules apply to the Supreme Court justices. I think there
    are some questions about enforcement, which I agree with
    Professor Gillers need to be explored. I think there are
    mechanisms that can be put in place to address any
    constitutionality concerns.
        There are a number of options to do that for creative
    thinkers in Congress and at the court.
        Chair Nadler. Thank you.
        I would like to talk about justices' speaking engagements.
    These can create conflicts or the appearance of conflicts in a
    number of ways.
        The first has to do with closed-door remarks made to
    audiences advancing a particular political agenda.
        Mr. Sherman, do you think Supreme Court justices should
    have to give their public speeches in public?
        Mr. Sherman. Yes. I think they should have to give their
    public speeches in public. They need to be mindful of the
    appearance and impartiality concerns that can arise from giving
    speeches to folks behind closed doors and can publicly post
    that information.
        Most importantly, I think it highlights the need for a
    clear standard that is publicly disclosed so that everyone
    knows what it is, and that the justices have clarity and
    consistency across their behavior.
        Chair Nadler. Thank you.
        Mr. Roth, another concern with speeches made by Supreme
    Court justices is that they are often accompanied by lavish
    gifts of travel and accommodation. Often these gifts of travel
    and accommodations go unreported because the judiciary's
    interpreting the Ethics in Government Act as requiring very
    narrow disclosures.
        Can you tell us more about the kinds of gifts that justices
    typically receive as part of their speaking engagements, and
    why that can create an appearance of impropriety?
        Mr. Roth. Sure.
        So, a few years ago my organization sent some public
    records requests to public universities to try to figure out
    what type of perks they were getting. We found that, for
    example, Justice Thomas was flown on a private plane to teach
    at the University of Florida.
        Justice Alito was offered a private plane to give a
    speaking--to give a speech at the opening of the University of
    South Carolina. A hurricane canceled that flight and he just
    ended up taking business class.
        Justice Sotomayor, when she gave the commencement address
    in Rhode Island in 2016, was offered 11 hotel rooms at the
    State's fanciest hotel for her, her security detail, and some
    family friends.
        So, this is a problem across the board. I think that part
    of the 21st Century Courts Act says that the justices should
    follow the travel rules that Members of Congress do when they
    have to report within 30 days of coming back from a trip who
    paid for the trip and how much it cost.
        Chair Nadler. Thank you.
        Mr. Roth, in a related issue to justice speeches is the
    kind of conferences that justices and many lower judges--many
    lower court judges are invited to attend. These conferences are
    frequently organized by groups pushing an ideological or
    industry-biased agenda, and they are often used to introduce
    new, previously unknown, or fringe legal theories into the
    mainstream and into the tops of judges' minds.
        There is a name for this kind of behavior: Lobbying. If the
    justices of the Supreme Court do not have to disclose these
    attempts to influence them, should they?
        Mr. Roth. Absolutely. I think there is a few things.
        One, a lot of these speeches sometimes--to go back to what
    Don said, the Supreme Court justices there is a site on
    supremecourt .gov where justices can publicize what they said,
    to whom, and when. That page hasn't been updated for five
    years. The last people to do it, were Stevens and Ginsburg.
        So, yes, that, what they are saying, to whom, and when,
    should be publicly available. Certain justices live stream
    their events. Barrett recently live streamed an event. Thomas
    recently did, but Alito and Gorsuch didn't. It is just, again,
    every justice should be required to follow the same set of
    rules. The fact that they are not, just makes the appearance of
    impropriety.
        Chair Nadler. Thank you.
        Mr. Roth. Makes us think that they are doing something
    behind closed door, actually.
        Chair Nadler. Thank you.
        Mr. Sherman, your written testimony mentioned a draft
    Advisory Opinion No. 117, which would have prohibited lower
    court judges from being members of judicial advocacy groups
    like the Federalist Society and the American Constitution
    Society. That opinion would not have applied to the Supreme
    Court.
        Should the Supreme Court adopt a code of conduct that
    includes a similar prohibition on membership in these kinds of
    groups? When justices are members of outside political groups
    seeking to influence the Federal judiciary and interpretation
    of Federal law, does this create the impression that justices
    are not deciding cases impartially on the merits?
        Mr. Sherman. Absolutely.
        Chair Nadler. Thank you.
        Mr. Johnson of Georgia. The gentleman's time has expired.
        We will now go to the gentleman from California, Mr. Issa.
        Mr. Issa. Thank you, Mr. Chair.
        Mr. Paoletta, the gentleman next to you, Mr. Sherman, in
    his statement cited that the prohibition or the recusal
    standard should include both spouses and children as to their
    stocks, bonds, ownership, and conflicts.
        First, is that reasonably possible? I have a 42-year-old
    son. Should I have to recuse myself because my son has an
    interest in some company using the same standard that is
    currently the Congressional standard or the Executive standard?
        Mr. Sherman. Congressman, thanks for the question. I
    testified on this topic with respect to Congress two weeks ago.
    I think the standard should be the same. That members of the
    Federal judiciary should be banned from owning--
        Mr. Issa. Okay.
        Mr. Sherman. --and trading individual stocks, to include
    their dependent children and their spouses, not their adult
    children.
        Mr. Issa. Okay. So, the President flying Hunter Biden on
    his aircraft to take him to Eastern Europe or to China where he
    did these business and made millions of dollars, as he got off
    of Air Force Two with the President, would that or wouldn't
    that be a conflict the way you are looking at it since Hunter
    Biden was only dependent on drugs, not on his father?
        Mr. Sherman. So, I'm not familiar with the example that
    you're providing. Again, I would note, as I said, the conflict
    concern is most significant. I think the focus of the
    prohibition should be on dependent children and spouses, in
    addition, to obviously the principals.
        Mr. Issa. Okay. Mr. Paoletta, the concept that you would be
    recused when there is only nine Justices because of anything
    that your spouse said, did or had in the way of ownership on
    lower courts if a judge is pushed off or recused either from a
    three judge panel or from being actual presiding judge, a
    replacement judge is brought in. Is there any provision for the
    Court to do that, for the high Court?
        Mr. Paoletta. There's not, Congressman. The Court addressed
    this in 1993 by issuing a statement of recusal policy where
    they interpret, so again this is the Supreme Court interpreting
    section 455 where they say that we're not going to recuse
    ourselves from family members who are involved with cases below
    the Court.
        So, they could be involved at the District Court level and
    at the Court of Appeals level so long as they're not the lead
    attorney, right? So long as--
        Mr. Issa. So, in other words don't appear in front of me.
        Mr. Paoletta. Right. Don't appear. So, if you take those
    examples and apply it to the Thomas situation, right, or even
    with respect to the Reinhardt situation, they're at the lower
    court. They're not before the judge.
        Then with respect to kind of statements that Ginni Thomas
    has made, this fits squarely in the statement of recusal policy
    that the Supreme Court has adopted, which is implementing 455.
    So, with respect--
        Mr. Issa. So, if there's no understood standard, it
    wouldn't apply. In the Reinhardt case, this is an adjudicated
    case.
        Mr. Paoletta. Yes.
        Mr. Issa. This is a well thought out case that squarely
    would seem to say that the accusations about Justice Thomas'
    recusal requirement because of his wife is in no way even as
    close as it was with Reinhardt, wouldn't you say?
        Mr. Paoletta. Yes. She was actually commenting on a
    specific case that was pending. Her organization filed two
    briefs, two amicus briefs, that went up to her husband. So,
    Ginni Thomas commenting on--again, one of the things I object
    to is a statement by some critics that because Ginni Thomas,
    Michael Tomasky from the New Republic, as I have in my written
    statement, he said that because Ginni Thomas said that
    Obamacare was a disaster that Justice Thomas has to recuse.
    That's absolutely absurd. He's calling for his impeachment
    because he didn't recuse from a case where she made that sort
    of comment.
        If you apply that sort of logic to what happened in the
    Reinhardt case, again, I never thought I'd read an opinion from
    Professor Gillers as much in terms of his filing and defending
    Reinhardt on that, they're not even anywhere close to what
    happened in the Reinhardt case, or, as I've talked about in my
    written testimony, Judge Pillard on the D.C. Circuit, where her
    husband, who is the Legal Director of the ACLU, specifically
    reviewed the Trump v. Mazars case and that went up to her on an
    en banc appeal.
        Mr. Issa. In the remaining time, Mr. Gillers, since you've
    been cited a couple of times, would you like to comment on why
    you seem to be on two different sides of this issue?
        Mr. Gillers. Thank you. I don't believe that Justice Thomas
    would have to recuse from the Obamacare case because his wife
    vocally, publicly, emphatically, and repeatedly objected to
    Obamacare because we do not impute her public position to her
    husband for purposes of recusal. That's the same thing that
    happened in the Reinhardt case. It's the same thing with David
    Cole and Nina Pillard. End of story. Mr. Issa. Thank you. Thank
    you, Mr. Chair.
        Mr. Johnson of Georgia. Thank you. The gentleman from
    California, Mr. Lieu is now recognized.
        Mr. Lieu. Thank you, Chair Johnson, for holding this
    important hearing. The United States Supreme Court does not
    have an army. The Court cannot raise money. The Court cannot
    pass laws. The only power the Supreme Court has is from the
    belief of the American people that it interprets the laws in a
    fair and impartial manner.
        Unfortunately, as a result of some of the conduct of some
    Justices, they have acted more like partisan hacks than judges.
    Let's just go through some of these examples.
        Last year Justice Amy Barrett attended a dinner with the
    Republican leader of the Senate and a dozen of his friends and
    then gave a speech.
        This year, Justice Gorsuch went to an event that was closed
    to the press with other people, including Republican Governor
    Ron DeSantis and former Republican Vice President Mike Pence.
        Justice Alito, in 2019, attended a Madison dinner with
    other politicians and Republican donors.
        This year Justice Thomas in the United States Supreme Court
    alcove took a picture with Republican candidate Herschel Walker
    for Senate and the Walker campaign then sent that picture out.
        Mr. Sherman, what do you think is the damage to the Court's
    reputation if people perceive it as a partisan institution
    instead of an impartial institution?
        Mr. Sherman. Well, I think, as Mr. Nadler said, the Court's
    currency is its credibility and impartiality is the reason, or
    the perception of impartiality is what gives the Court its
    authority.
        If the American people begin to believe that the Federal
    Courts are not impartial, not only does it damage our concept
    and conception of democracy, but if people feel like they
    cannot go to the Judicial Branch for relief, my fear is that
    they will rely on extrajudicial means to resolve disputes.
        This is not just simply some judges who are taking pictures
    with politicians or not recusing from cases where there's a
    financial interest, these are fissures that will undermine the
    entire foundation of the Court. The highest court in the land
    needs to have the highest ethical standards. Right now, they
    have none.
        Mr. Lieu. Thank you. The American public now knows this.
    According to Gallup, they have been tracking Supreme Court
    ratings. A little over six months ago, there was an article
    that said approval of the U.S. Supreme Court down to 40
    percent, a new low.
        This February, Axios reported Supreme Court approval rating
    tanks. It's not even just partisan behavior, we have just
    straight up unethical behavior. So, Mr. Roth, you have compiled
    this list of ethical lapses by Supreme Court justices, and
    there are number of them. Man, oh, man, you look at Justice
    Clarence Thomas, his list is like two to three times as long as
    anybody else. So, let's just go through some of this.
        Justice Thomas accepted private plane rides and gifts,
    including a bible once owned by Frederick Douglass valued at
    $19,000 from Financier Harlan Crow. Crow also donated half a
    million dollars to help Thomas' wife, Ginni Thomas, establish
    Liberty Consulting. Is that appropriate, Mr. Roth?
        Mr. Roth. No, it's not. It's unique to Justice Thomas.
    There's not a similar situation with any of the other Justices
    along with what you--according to what you cited.
        Mr. Lieu. Now, let's talk about dark money. Justice
    Clarence Thompson attended a Koch Industries retreat in Palm
    Springs, California, at a time when Koch was bank rolling
    several litigants before the Supreme Court. This isn't even the
    appearance of dark money. This is Justice Thomas going into the
    eye of the hurricane of dark money. Mr. Roth, was that
    appropriate?
        Mr. Roth. It's not appropriate, no.
        Mr. Lieu. Now, I don't care how crazy Justice Thomas' wife
    is or the crazy things she engages in. I do care if he attempts
    to cover up her crazy actions related to the January 6
    insurrection. That is a problem.
        There was a January 6 Congressional Committee investigating
    this, a bipartisan Committee. The Department of Justice has
    indicted people because of the January 6 attack on our capitol.
    Ginni Thomas has been sending text messages regarding January 6
    to a Chief of Staff of the White House. Then when Justice
    Thomas votes no on a case about disclosure of documents related
    to January 6, that is a problem. He should have recused
    himself.
        Let me just end by saying the entire Congressional Branch,
    we have a code of ethics. We have an Ethics Committee. The
    Executive Branch has a code of ethics. Only the nine Justices
    do not. They need one. I yield back.
        Mr. Johnson of Georgia. The gentleman from Texas, Mr.
    Gohmert, is now recognized for five minutes.
        Mr. Gohmert. Thank you. I know one of the canons for
    Federal judges, and of course it's been discussed that it is
    probably unconstitutional for another branch or even lower
    judges to prepare canons of ethics that bind the Supreme Court.
    Canon Number 4 says in part a judge should not participate in
    extrajudicial activities that reflect adversely on the judge's
    impartiality.
        Mr. Paoletta, can you think of judges on the Supreme Court
    that have given indications in addition to just the ones you've
    mentioned in your testimony of where they are going to go on
    rulings?
        Mr. Paoletta. I think I have a little bit more faith in
    Justices in terms of speaking before groups, and it not
    affecting their decision-making.
        I do point out in my written testimony that Justice
    Ginsburg never recused from a case from the National
    Organization of Women when they filed amicus briefs despite her
    serving on the board of NOW in the 1970s. She donated an
    autographed copy of her VMI opinion to be auctioned off for a
    fundraiser for the NOW PAC.
        She spoke in 2004 at a lecture named after her for the NOW
    Legal Defense Fund and two weeks before that lecture she voted
    in favor of a position advocated by the NOW Legal Defense Fund
    in an amicus brief.
        So, we can talk about the Justices, but Justice Ginsburg
    never seems to come up in terms of the concerns about a Justice
    doing political things or entering the political fray. As I
    said in my oral testimony, she literally entered the 2016
    Presidential campaign to stop Donald Trump from being President
    of the United States. That was her intended purposes. I think
    that was unprecedented in modern times.
        Mr. Gohmert. I do recall that.
        It is interesting though, if you're a liberal Justice on
    the Supreme Court and family members even participate in a
    brief before the Court, well, you're fine. That's okay. We
    don't see that as any problem.
        Let me tell you, when you come in here and you talk about
    the credibility to attack Justice Thomas and he is the only
    name that you mention, you have got credibility problems.
    That's just the way it is.
        Let me also tell you, gee, one of the most far-reaching
    opinions ever issued in my opinion by the Supreme Court was the
    Obergefell case that really forced on States that they must
    recognize same-sex marriage. Well, here's an article that talks
    about, and of course, the argument of the case April 28, 2015,
    was decided June 26, 2015.
        In May, Justice Ginsburg presided over a same-sex wedding
    in advance of the Supreme Court's decision. In fact, when she
    pronounced the marriage, as the New York Times reported, not
    that we can trust them, but that she said, with a sly look and
    special emphasis on the word Constitution, Justice Ginsburg
    said that she was, ``pronouncing the two men married by the
    powers vested in her by the Constitution of the United
    States.''
        It would seem to me that was giving an indication to quote,
    ``Canon 4'' of what the Judge's feelings were on that case, and
    not one of you ever brought that up. That didn't bother anybody
    at all even thought it was such a far-reaching case.
        Justice Thomas knows what all my very conservative dear
    Black friends know is, nobody is treated more brutally in this
    country than a conservative Black. It's just like Justice
    Thomas said at his hearing, he was the victim of a high-tech
    lynching. I would submit anyone that continues that abuse is
    further contributing--
        Mr. Jones. Will the gentleman yield?
        Mr. Gohmert. No. Is further contributing to the same high-
    tech lynching. Yes, I've got seven seconds.
        Mr. Paoletta. I just want--can I just clarify on this--this
    photo that has been mentioned a couple times. I think it's in
    Gabe's list and all of that, that photo that Justice Thomas
    appeared in with Herschel Walker, was part of a group that he
    hosts at the Supreme Court, the Horatio Alger Association, of
    which he's a member, and of which Herschel Walker was just
    inducted. Okay?
        It's an incredible organization with people across the
    political spectrum. People who have overcome difficult
    circumstances. They have a reception up at the Supreme Court.
    That's why he was taking a photo with Herschel Walker. It
    wasn't related to his campaign.
        Mr. Gohmert. Herschel is a conservative, too. That's
    [inaudible].
        Mr. Johnson of Georgia. The gentleman's time has expired.
    Now, I'll go to the gentleman from New York, Mr. Jeffries, for
    five minutes.
        Mr. Jeffries. I thank the distinguished Chair for your
    leadership for convening this hearing. I thank all the
    Witnesses, particularly Professor Gillers from my alma mater,
    NYU. Great to see you and thank you for your presence here
    today.
        My distinguished colleague from Texas just made the
    observation that Justice Thomas has been subjected to a high-
    tech lynching is quite extraordinary. I believe, Mr. Paoletta,
    you've echoed a similar sentiment.
        I think the quote is, ``many on the Left hate Justice
    Thomas because he a Black conservative who has never bowed to
    those who demand that he must think a certain way because of
    the color of his skin.'' What evidence to you have to support
    that incendiary charge?
        Mr. Paoletta. When Chair Bennie Thompson calls him an Uncle
    Tom because of his views on voter ID and affirmative action,
    when, in fact, more Black Americans support voter ID. With
    respect to affirmative action in college education, 62 percent
    are opposed to it. So, that is the most vile, disgusting thing
    you can say. So, yes that's the evidence of just
        Mr. Jeffries. Reclaiming my time.
        You're claiming my time. You're claiming my time.
        Mr. Paoletta. Yes.
        Mr. Jeffries. There are a lot of vile, disgusting things
    that can be said.
        Mr. Paoletta. Well, you just asked me for an example.
        Mr. Jeffries. The notion that is, right, when some Members
    on this side of the aisle and others have been called the N
    word throughout different points of our life belies the point
    that you have a particular bias. It's an overstatement, which
    is not surprising when you look at the balance of your
    testimony.
        If Chair Bennie Thompson has an observation to make, he's
    entitled to free speech. You apparently believe that Ginni
    Thomas, regardless of how many conflicts she has, is entitled
    to her own political opinions as well.
        Mr. Paoletta. Can I give you another example?
        Mr. Jeffries. No. Let me go to Professor Sherman and Mr.
    Roth because this notion that Clarence Thomas is being singled
    out because he's a Black conservative, whatever that means, I
    think is belied by the fact that if you look at example after
    example, there seems to be troubling instances where he's
    making rulings in cases where his wife has a clear interest.
        In 2010, Ginni Thomas was the President and CEO of a dark-
    money group called Liberty Central. It stood to benefit from
    the outcome of the Citizens United decision. Mr. Roth, did
    Justice Thomas recuse himself from that case?
        Mr. Roth. He did not.
        Mr. Jeffries. Okay. That same group apparently paid Ginni
    Thomas $120,000 per year to actively lobby for the repeal of
    the Affordable Care Act. She was paid to try to bring about an
    outcome that was at issue in the National Federation of
    Independent Business v. Sebelius case. Mr. Roth, did Justice
    Thomas accuse himself from that case?
        Mr. Roth. He did not nor any of the other Obamacare cases.
        Mr. Jeffries. In 2017, a group called the Center for
    Security Policy filed an amicus brief with the Supreme Court to
    support Trump's outrageous Muslim ban. At the same time that
    this amicus brief was filed, Ginni Thomas was being paid
    roughly $200,000 in consulting fees, according to IRS
    documents. Did Justice Thomas recuse himself from that case,
    Trump v. Hawaii?
        Mr. Roth. He did not.
        Mr. Jeffries. Then we've got the most recent example in a
    parade of horribles. It's interesting how my friends want to
    focus on Justice Ruth Bader Ginsburg, may she rest in peace. We
    got someone who is actually on the Supreme Court right now
    making decisions actively in cases where his wife has clear
    interests.
        Text messages reveal that Ginni Thomas was in active
    communication with the former White House Chief of Staff as it
    relates to perpetuating the big lie that Donald Trump somehow
    won the 2020 election, notwithstanding no evidence to suggest
    that in fact is true and was involved in trying to push this
    forward.
        There's a case that takes place to try to reduce those
    communications with Mark Meadows in the White House. Justice
    Thomas is the only Justice who decides that those documents
    should not be released. His wife's documents should not be
    released. Every other conservative Justice in that case voted
    that those documents should be released. Do you think it might
    have been appropriate for Justice Thomas to recuse himself in
    that particular case?
        Mr. Roth. Yes. His wife's interests were clearly implicated
    in that case.
        Mr. Jeffries. Thank you, sir. Thank you for your testimony.
    I yield back the balance of my time.
        Mr. Johnson of Georgia. Thank you. The gentleman from
    Florida is now recognized for five minutes, Mr. Gaetz.
        Mr. Gaetz. Thank you, Mr. Chair. It's quite something to
    hear my colleagues reflect that we shouldn't be able to observe
    conditions regarding Justice Ginsburg because she's left the
    Court when they impeached a President who had already left the
    oval office.
        Mr. Paoletta, I wanted to give you an opportunity to extend
    your remarks regarding instances of racism that you believe
    Justice Thomas encountered as a consequence of his skin color
    and his politics.
        Mr. Paoletta. Sure. I think it's the--I have it in my
    written testimony, too. It's this narrative that Justice Thomas
    is a lackey of Justice Scalia, of Judge Silverman, when he's on
    the court, and the writing was all that he was incapable of
    being a justice, which is so belied by the facts. He's the most
    independent thinking Justice probably in history. He writes the
    most opinions per year of any Justice.
        When the documents came out from Justice Blackmun, it
    showed that from his very first conference, he voted in dissent
    on his own and brought three or four Justices over to him in
    the first case that they dealt with. At times--
        Mr. Gaetz. I'm sorry. Is it an attempt to try to invoke a
    racist trope that Black people are not as intelligent and thus
    are more persuadable?
        Mr. Paoletta. Yes. If you look at the current attacks on
    Justice Thomas where Philip Bump writes that Mayer's piece
    dances around the question of how much influence Ginni Thomas
    has over her husband. The one person Clarence really listens to
    is Virginia.
        Michael Kranish's piece in the Washington Post quotes,
    ``Democratic operative Mark Fabiani wondering aloud whether
    there is a single opinion that Justice Thomas has ever written
    that is inconsistent with his wife's far right-wing views.''
    So, he is following her.
        It's just the most offensive thing in the world when you
    look at--when you read a lot of court watchers who are serious
    about the court, they know that Justice Thomas is the leader of
    the originalist wing and brought Justice Scalia over to his
    side probably more than Justice Scalia ever brought Justice
    Thomas over to his views on the areas where they disagreed.
        Mr. Gaetz. When someone calls a Black person an Uncle Tom,
    is that a racist attack?
        Mr. Paoletta. Yes. I think it is. I think it's a disgusting
    attack.
        Mr. Gaetz. Do any of the other panelists dispute that
    testimony? Does anyone think that there's a non-racist way to
    call a Black person an Uncle Tom?
        How should we think about the fact that the Chair of the
    January 6 Committee, the Chair of the Homeland Security
    Committee just use what all you concede is a racist attack
    against Justice Thomas.
        Mr. Paoletta. Congressman Jefferies asked me for an
    example. I gave it to him. I'll let others just address it. I
    just think it is indicative of the hatred that is directed
    towards Justice Thomas for his views, which in fact, if you
    look, I wrote an article on this of comparing Justice Jackson
    and Justice Thomas' views on a number of issues in terms of
    polling.
        By and large, Black Americans rank and file agree, I think,
    on abortion, guns, and voter ID, across the Board. Yet,
    somehow, he's portrayed as being an Uncle Tom or a sellout or
    whatever the disgusting characterizations are. It's just this
    continual attack on Justice Thomas. Thank God he's had the
    backbone to never bend in the face of these attacks. I think
    this hearing is a continuation of that.
        Mr. Gaetz. As we think about--
        Mr. Paoletta. Everyone is focused on Justice Thomas.
        Let me just address the January 6 case where that case has
    to do with Executive Privilege over internal White House
    documents between the President and his closest advisors. It
    had nothing whatsoever to do with Ginni Thomas' communications
    with Mark Meadows. Those wouldn't be covered by Executive
    Privilege.
        So, Justice Thomas was voting on documents that were not at
    all related to his wife. So, that's why I say, up until this
    point, there could be cases down in the future, as every
    Justice does, when the case comes before the Court and they
    look at the litigants, they look at the parties, they look at
    what's at issue, they decide whether they recuse.
        Mr. Gaetz. So, that I understand your testimony, you
    believe it's a racist trope to designate Justice Thomas as like
    uniquely unintelligent or persuadable. You believe it's a
    racist trope to call him an Uncle Tom. You believe that this
    Committee is a continuation of that effort?
        Mr. Paoletta. Yes. I believe it was--yes. I believe it
    started when he first came to town in 1980. He joined the
    Reagan--
        Mr. Gaetz. Let's hope it ends. I yield back.
        Mr. Johnson of Georgia. We will now turn to the gentleman
    from Arizona, Mr. Stanton, for five minutes.
        Mr. Stanton. Thank you very much, Mr. Chair. I thank you to
    the esteemed panel of Witnesses who have joined us here today
    as we draft and consider legislation focused on a code of
    ethics for the Supreme Court. I hope you know that your
    knowledge, testimony, and contributions to this process are
    vital to this Committee's work, and we do greatly appreciate
    your time.
        Throughout this Congress, this Subcommittee has
    methodically addressed many longstanding concerns with the
    Federal bench from the diversity of judges to recusal for
    conflict of interest and workplace misconduct in the judiciary.
    We've taken on some pretty serious issues to modernize the
    court system.
        It's clear today that the American people do share a crisis
    of confidence in the Supreme Court. Recent polling suggests
    that public approval of the Supreme Court is at an all-time
    low. Only about half of Americans say that they have at least a
    fair amount of trust in the United States Supreme Court.
        Mr. Roth, in your opinion, should Congress and the Justices
    Act now to do what they can to restore faith in the institution
    of the Court?
        Mr. Roth. I think we're past the time of the Justices
    acting. They've known about these issues for years, and they've
    done nothing time and again when they've been faced--whether
    when Jim Sensenbrenner was Chair, Bob Goodlatte was Chair,
    Lamar Smith was Chair, they just, they haven't done anything.
        So, it's really, as we've learned recently with the
    Courthouse Ethics and Transparency Bill that Congressman Ross
    and Issa wrote that just passed the House, final passage today,
    it's really up to Congress to take that step and draft the
    legislation to modernize the judiciary because left to its own
    devices, the judiciary is not going to fix itself.
        Mr. Stanton. I agree with that sentiment completely. Mr.
    Sherman, ethics codes are common sense in part because they are
    so commonplace across so many professions. Can you tell us
    about other ethic rules applicable to other government
    employees, for example, in the Executive Branch?
        Mr. Sherman. Absolutely. So Executive Branch employees,
    even low level ones, have lots of requirements and
    accountability including conflict of interest statute, 18
    U.S.C. 208, a criminal statute which bars them from engaging in
    matters where they can have an impact on their or their
    family's financial holdings.
        Both Congress and the Federal judiciary are exempt from
    that provision although I would note that the House and Senate
    have a code of ethical conduct and face accountability from
    voters. What we have with the Supreme Court is they are not
    subject to the criminal conflict of statute.
        Their disqualification statute has no enforcement mechanism
    or penalty at all. We really leave it up to litigants to
    enforce ethical compliance only through raising objections
    after they've been the victims of a conflict of interest.
    That's not a way to promote ethics in our third branch of
    government.
        Mr. Stanton. Now, you discussed the ethics policy as it
    relates to the Executive Branch. Is there anything that we--
    lessons learned from the ethics policies in the Executive
    Branch that should be applicable to the Supreme Court?
        Mr. Sherman. Well, I think there are a number of steps that
    we can take. I think one positive step was the bill that was
    passed today, which brings the ethics regime for the Federal
    judiciary closer to the Congressional STOCK Act, which
    obviously has its own problems that I've previously testified
    about. I think it's a step in the right direction.
        I would note that there are bills that would extend the
    criminal conflict of interest statute to apply to the Federal
    judiciary. I think that would be a positive step. I think
    banning Federal judges, their families, and dependent children
    from owning and buying individual stocks is an easy and clear
    way to address financial conflicts.
        Mr. Stanton. Mr. Chair, to follow-up, what does it say
    about the Supreme Court that it refuses to adopt an ethics code
    for itself?
        Mr. Sherman. I'll take it. I think it says to the American
    public that the Supreme Court and the Justices of the Supreme
    Court are above and not subject to any standards. I mean, we
    just had a scandal of 131 judges that violated their legal and
    ethical obligations, some of whom said they didn't even know
    what they were, and the Chief Justice took a pass on reform.
    That's unacceptable.
        Mr. Stanton. I really appreciate those outstanding answers.
    So, obviously I'm supportive of moving forward with a code of
    ethics for the Supreme Court. With that, I yield back.
        Mr. Johnson of Georgia. The gentleman yields back. The
    gentleman from Ohio, Mr. Chabot, is now recognized for five
    minutes.
        Mr. Chabot. Thank you, Mr. Chair. Thank you to all the
    Witnesses for being here today.
        Mr. Chair, the American people are frustrated. They are
    aggravated. They are tired from the pandemic to the supply
    chain debacle, from the botched withdrawal from Afghanistan to
    other chaos at our Southern border, from record high gas prices
    to 41-year high inflation rate that we're seeing right now
    that's driving up the cost of virtually everything that the
    average person nowadays has to buy. They have had to weather
    crisis after crisis.
        After all they've endured, they just want to see their
    elected officials show some common sense, maybe some
    compassion, and implement policies that will help them and
    their families to make ends meet. That's what they'd really
    like to see us dealing with.
        Instead, they get yet another hearing designed to distract
    them from the Biden Administration's policies that have failed
    them utterly again and again. Today, they're supposed to
    believe that a respected Supreme Court Justice, who has served
    on the highest court in the land, with distinction I would add,
    for over three decades now is suddenly unable to make his own
    decisions regarding the law without consulting his wife.
        The whole premise of this hearing is absurd on its face.
    However, what appears to be an absurdity at first glance takes
    a much more insidious turn when placed in context of recent
    attempts by the Democrats to smear Republican-nominated Supreme
    Court Justices.
        We're about a year and a half removed from the effort in
    the Senate to convince the American people that Justice Amy
    Coney Barrett, for example, who had a long and distinguished
    career as a lawyer and as a scholar and, yes, as a judge, would
    somehow be subservient to her husband when it came to matters
    of the law.
        Most reasonable Americans through that was absurd as well.
    However, as the old saying goes, fool me once. It now appears
    that my colleagues on the other side of the aisle have a
    problem with strong assertive women when those women don't
    agree with them. Instead, I'm engaging those women in a debate
    on the issues they've decided. It's better to attack their
    motives and of all things question their independence from
    their husbands.
        I can't believe that I have to say it out loud in this day
    and age, but intelligent, accomplished women who are allowed to
    have their own thoughts and opinions independent of their
    husbands, that's the way it ought to be and that's the way it
    is all over the country. The fact that we are even discussing
    this topic is frankly beneath the dignity of this Committee,
    and I've been on the Judiciary Committee now for 26 years. It's
    2022 for crying out loud. It's not 1952.
        Mr. Chair, the American people aren't stupid. They see this
    charade for what it is. It's really about abortion when it
    comes to our Supreme Court Justices nowadays, at least the way
    the Left looks at these things.
        A couple weeks ago, when we all learned that Justice
    Ketanji Brown Jackson had represented numerous pro-abortion
    groups over the years, there wasn't a peep, not one from the
    other side about her recusing herself from abortion cases
    before the Court. I didn't hear anything from the Left.
        However, because Justice Thomas and Justice Barrett do not
    embrace abortion on demand, they must endure all sorts of
    attacks and vitriol from the radical Left including apparently
    this bizarre accusation that they are incapable of thinking for
    themselves independent of their spouses. It's, frankly, an
    insulting line of attack. I'm deeply disturbed it's being
    entertained here today.
        As for my questions, Mr. Paoletta, let me ask you. What do
    you think about the idea being floated by Democrats that a
    Supreme Court Justice should recuse his or herself from a case
    based upon their spouse's opinion on that issue?
        I know you've already commented on that here today, but not
    everybody has asked you that question, yet let me ask you. Take
    whatever time you want to comment.
        Mr. Paoletta. Thank you, Congressman. I think it's
    absolutely inappropriate, particularly, at the Supreme Court
    level, where the Justices have a duty to sit. If one of them
    recuses because of convenience or because they want to have an
    extra safe line, it damages the Court as every single Justice I
    think has commented over the years from Justice Ginsburg to the
    recusal statement that the Justices issued in 1993.
        People have their own--couples have their own professional
    careers. My wife is a partner at a law firm. We've been working
    our whole life. She's got her job. I got my job. I can decide--
    you know, if I were a judge and there's--that's the thing.
    There are hundreds of people, judges at the State, local, and
    Federal level who have spouses who have a separate professional
    career who are in the public square.
        I mentioned Ed Rendell. Ed Rendell was the Mayor of
    Philadelphia, the Governor of Pennsylvania, and the Chair of
    the Democrat National Committee, and his wife was a judge. I
    think that's great. I don't have any problem. I want to make
    sure I--Justice Ginsburg not recusing is fine with me with
    respect to her husband at the law firm because he wasn't making
    money, and he wasn't involved. I'm just using it as an example
    of a double standard, but no. I don't think a spouse having her
    own views and commenting on things in the public square that
    come before the Court is any basis at all for a Justice, in
    particular, to recuse from a case.
        Mr. Chabot. Thank you, Mr. Chair. My time has expired. I
    yield back.
        Mr. Johnson of Georgia. The gentleman from Tennessee, Mr.
    Cohen, is now recognized for five minutes.
        Mr. Cohen. Thank you. Mr. Chair, I'd like to ask you a
    question first. My friend, Mr. Johnson, said that all of a
    sudden, the Democrats are having this hearing because they want
    to beat up on Clarence Thomas. When did you first introduce
    this bill?
        Mr. Johnson of Georgia. I introduced this bill in the 116th
    Congress, two years ago.
        Mr. Cohen. That was quite a bit before all this controversy
    about Justice Thomas and his wife, right?
        Mr. Johnson of Georgia. Yes, it was. Actually, I took this
    bill up from the late Louise Slaughter, a representative from
    New York, who first introduced the legislation in the year
    2013.
        I thought it was an important piece of legislation then,
    and I think it's even more important now.
        Mr. Cohen. It is. You got ahead of me on this one.
        Mr. Johnson of Georgia. Well, sometimes you have seniority
    over me because of your initials so it feels good.
        Mr. Cohen. Thank you, sir. Mr. Roth, let me ask you a
    question. Take me back a bit. Mr. Thomas, Justice Thomas, was
    first brought on the Court in 1991. Is that correct?
        Mr. Roth. Correct.
        Mr. Cohen. When was the first time he ever spoke in the
    Supreme Court, asked a question?
        Mr. Roth. I know that he was famous for not asking
    questions during oral argument because he did not find it a
    valuable exercise for him to take that time.
        I remember being in the courtroom on a Leap Day when he
    asked a question. So, that would have been February 29, 2016. I
    think he asked questions in 2008 or 2009. It wasn't a common
    occurrence until the seriatim questions were implemented in
    2020.
        Mr. Cohen. When did Justice Scalia die?
        Mr. Roth. February 13, 2016.
        Mr. Cohen. He started talking more after Justice Scalia
    died maybe?
        Mr. Roth. Well, I think the--I mean, the question he asked
    when I was in the courtroom definitely echoed something that
    Justice Scalia would have asked. It was about domestic violence
    and guns. It had some echo there, which I thought was a nice
    homage to the late Justice.
        A few years later, because of the pandemic we're doing live
    audio, and every justice gets to ask a question. Clarence
    Thomas has decided to participate in that. He's asked a
    question pretty much in every hearing since May 2020.
        Mr. Cohen. Most every justice does ask questions, do they
    not?
        Mr. Roth. Correct.
        Mr. Cohen. Has there ever been anybody, other than the
    movie Silent Bob, has there ever been a Justice like Clarence
    Thomas?
        Mr. Roth. The hot bench of the Supreme Court where there's
    this back and forth of the Justices that dates back to 50 or 60
    years ago. I really don't know what happened before that. I
    don't have a good sense.
        Mr. Cohen. Okay. Thank you, sir. It just astonished me. Mr.
    Paoletta, I heard you say something to the effect, I think what
    now your written testimony says 30 years later, Thomas is still
    standing strong, considered by many to be our greatest Justice.
    Who are the many?
        Mr. Paoletta. I'll get you a number of--Tom Goldstein--
        Mr. Cohen. Tom who?
        Mr. Paoletta. Tom Goldstein--
        Mr. Cohen. Goldstein.
        Mr. Paoletta. --a practitioner before, he said, ``Justice
    Thomas is considered our greatest Justice for bringing new
    ideas into the Court.''
        I find it--so, let me just ask you a question, Congressman.
    Do you think that his not asking questions--
        Mr. Cohen. Many, just wait a minute, sir. I've got--many is
    plural. Tom Goldstein is not a triplet.
        Mr. Paoletta. I've spoken with many practitioners who say
    he's our greatest Justice. I can give you a list.
        Mr. Cohen. Give me a list. I am ready.
        Mr. Issa. If the gentleman would yield, I would be glad to
    add my name to that list whenever it is delivered.
        Mr. Cohen. Thank you. I was giving you all are a given. The
    fact is this doesn't have to do with Clarence Thomas. It
    doesn't have to do with Ms. Ginsburg. It has to do with ethics.
        I think everybody should agree. The Supreme Court, which is
    the most powerful institution in our government should have
    ethical guidelines. If they have conflicts, they should recuse
    themselves or they should disclose them. There have been
    instances shown where Justice have had conflicts, and they
    haven't recused, and they haven't disclosed.
        Now, most of what we talked about Justice Ginsburg and this
    Ninth Circuit gentleman whose wife was on the ACLU, nobody got
    paid any money. Regardless of all that, if there are conflicts,
    they should disclose them. There should be such laws.
        I got no--Scalia came before--Justice Scalia came before
    when I was Chair of this Subcommittee and talked to us. He was
    big on Owira. There couldn't be a nicer Witness that we ever
    had.
        Scalia was a gentleman and a scholar, and he taught us a
    lot. He cared about Owira, and he cared about the Court. He
    came with Breyer, and the two got along great. Breyer could
    have been Ginsburg. I mean, they were just all buddy and buddy
    and wonderful.
        Mr. Jones. Will the gentleman yield?
        Mr. Cohen. Who was it that asked? Sure. Go ahead.
        Mr. Jones. I would also just make the observation that
    there's been a conservative majority on the Supreme Court since
    approximately 1972 when Nixon got four appointments.
        So, the idea that somehow, we are all of a sudden raising
    issue of ethics because there is a conservative majority on the
    Supreme Court is plainly belied by the facts, and I think we
    should dispense with making those representations moving
    forward if we want to be held favorably in the eyes of people
    who want to judge all the information in a neutral fashion.
        Mr. Cohen. Thank you. I'll close. The bottom line is we
    ought to have ethics. I don't care what anybody did wrong. That
    doesn't make what somebody else did right. It doesn't change
    the fact that the Supreme Court ought to be honest and disclose
    it. I'm a big fan of Justice Roberts, too. Aye.
        Mr. Johnson of Georgia. The gentleman from Wisconsin, Mr.
    Fitzgerald, is recognized for five minutes.
        Mr. Fitzgerald. Thank you, Mr. Chair. In March of 2020,
    Senator Schumer declared,

            I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you
            have released the whirlwind, and you will pay the price. You
            won't know what hit you if you go forward with these awful
            decisions.

    This was just before the Court was about to hear the major
    abortion case.
        These comments I think reflect the significant escalation
    in some type of threat. I think many of us were puzzled even by
    what he was saying in front of that group on the steps of the
    Supreme Court. Then later, Senator Whitehouse talked about
    packing the Court in response to not making specific types of
    judgments and decisions.
        My point is in bringing that up is that there is always a
    political component, certainly because you have Senate
    confirmation and that process, which couldn't get any uglier
    than what we saw with Justice Kavanaugh.
        The one thing I would like to ask about, and Mr. Paoletta,
    you can comment, please. There is ethics and recusal. Then
    there's also what I would call a code of conduct. We talked
    earlier about the standard that Members of Congress are held
    to. There's also disclosure and just reporting kind of what a
    Justice might be involved in on a day-to-day basis.
        So, I think there's a little bit of confusion. I think the
    nuances are--they're there. I don't know that anybody is asking
    for politics to be removed because I don't think you can do it
    quite honestly. I just don't think it's going to happen.
        So, is there any lesser standard or anything that could
    kind of be utilized to make the point that listen, these are
    wonderful people that are on the Supreme Court. They are living
    their lives, and there should be some leeway in what's granted
    to them. They should not be harassed by the political class.
    They should not be harassed by electeds. They should be treated
    differently.
        I know on the Wisconsin Supreme Court, 10-year terms.
    Everyone runs for office. There are different standards that
    need to be viewed. I'm just wondering if you have comments on
    that thought in general.
        Mr. Paoletta. Well, look, again, I think the recusal
    statute applies to the Supreme Court. So, in terms of recusals,
    in my view it's there already. The code of conduct is a
    guidance document.
        I guess even in the context of a code of ethics and
    listening to some of the panelists, their view is showing up
    before the Federalist Society and not streaming your speech is
    some sort of ethical violation. I just fundamentally disagree
    with that.
        I look at the code of ethics as it exists. It says a judge
    may engage in extrajudicial activities including law related
    pursuits and civic, charitable, educational, religious, social,
    financial, fiduciary and governmental activity, speak, write,
    lecture, and teach on both law-related and nonlegal subjects.
        The Federalist Society is a 501(c)(3) educational group. No
    matter how anyone wants to describe it, that's what it is. It's
    been an incredibly good force in the United States in terms of
    the development of the legal system.
        Now, there's the American Constitution Society, ACS. It's
    great that Justices go and speak there. I'm looking at Mr.
    Stewart's testimony. It says concerns about undue influence are
    further magnified when an organization is viewed as having
    close ties to and an extraordinary influence over several
    members of the Supreme Court, including by getting them to
    accept legal arguments that were previously outside the
    mainstream.
        Again, these are incredibly accomplished Justices that this
    thing is saying, this statement is saying, somehow, they are in
    the throes of this organization. In terms of the law students
    who have grown up in this great organization and engaged in the
    law--and if you've ever been a Federalist Society, they have
    lots of liberals there. They have lots of libertarians. They
    have lots of conservatives. It's a great debating society.
        I've never been to an American Constitutional Society. I
    think it's probably the same. Those are great organizations.
    Under the code of conduct, as I read it, and you gentlemen
    could disagree with me, you would be allowed to do that. You
    would be allowed to--but every time these representations are
    made about the Justices speaking at the Federalist Society,
    it's somehow bad. It's good. It's permitted by the code of
    ethics.
        If it were, again, I think the Justices consult the code of
    ethics. They are living their lives and engaging in the legal
    community in a good way.
        Mr. Fitzgerald. Thank you. I yield back.
        Mr. Johnson of Georgia. The gentleman from California is
    recognized for five minutes.
        Mr. Swalwell. Thank you. I thank the Chair for hosting this
    important and certainly timely hearing. I want to start with
    Mr. Sherman.
        Mr. Sherman, as Congress considers what legislation is
    appropriate in the area of judicial ethics and recusal, I think
    it would be valuable to look at the various standards that we
    might apply to government officials and the interest those
    standards promote.
        It seems to me that in easy cases an action might be
    clearly unlawful because it violates the plain text of the law.
    For example, when Mr. Paoletta, the gentleman seated to your
    right, was the general counsel of the Office of Management and
    Budget under President Trump.
        He asserted that office could bar the Defense Department
    from providing $214 million that Congress clearly appropriated
    to help Ukraine defend itself against Russia. That would have
    been really helpful for them to have that money. The Government
    Accountability Office concluded that Mr. Paoletta and his
    office clearly violated a Federal statute called the
    Impoundment Control Act and that Mr. Paoletta's assertions had
    ``no basis in law.'' I'd like to enter that GAO report into the
    record.
        [The information follows:]

                          MR. SWALWELL FOR THE RECORD

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

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Swalwell. In the most serious cases, the standard might
    hinge on what someone knew or their State of mind. For example,
    a person in Mr. Paoletta's position would be in jeopardy if
    that person had known that he was holding up the security
    assistance to Ukraine because President Trump thought it would
    help him get dirt on Mr. Biden, his political opponent.
        It would be even worse if a person in Mr. Paoletta's
    position, despite his obligations as a government official, had
    specifically intended to help the President use public money
    for the President's own private gain.
        This is precisely the point of an ethics rule to deal with
    issues of impropriety. It would also account for other
    situations like here, where Mr. Paoletta was responsible for
    responding to the public in Congressional inquiries about his
    own involvement in illegally holding up aid to Ukraine because
    President Trump thought it would help his reelection chances.
        So, when Mr. Paoletta faced calls to recuse himself because
    of a conflict of interest, Mr. Paoletta refused. Now, there
    will always be questions about why Mr. Paoletta failed to give
    GAO the information it requested or why according to some
    sources. His answers conflicted with the blacked-out portions
    of documents whose redactions he reviewed.
        I'd like to enter into the record a letter from Senator
    Chris Van Hollen asking Mr. Paoletta to recuse himself from
    that matter.
        [The information follows:]

                          MR. SWALWELL FOR THE RECORD

    =======================================================================
    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Swalwell. So, Mr. Sherman, I appreciate you bearing
    with me on this. My question is this. Clearly, appearances
    matter when it comes to government ethics, but there are also
    other interests at play. Would you agree?
        Mr. Sherman. Absolutely. I think particularly with the
    Supreme Court, appearance matters a great deal. Again, their
    authority and function derive from their impartiality. If there
    are issues that would lead a reasonable person to believe that
    Justices aren't impartial, that undermines the entire rule of
    law in the entire judicial system.
        Mr. Swalwell. What are the classes of cases where Congress
    should consider holding judges accountable for egregious ethics
    violations?
        Mr. Sherman. Well, obviously, there is impeachment. That's
    in the constitution, and there's a process for that. Frankly,
    short of impeachment, there's not a lot of mechanisms existing
    for Congress or for any branch of government to hold members of
    the Supreme Court accountable for anything. We've seen that
    through rampant abuses that Mr. Roth and Mr. Paoletta have
    identified that there are no checks on the Supreme Court's
    ethics. That's why we need a code of conduct to hold them
    accountable.
        Mr. Swalwell. However, Mr. Sherman, lower court judges can
    be disciplined or disqualified from certain cases when acting
    unfairly without avoiding impropriety, engaging in political
    discourse, or not acting with the utmost integrity. So, there
    is a precedent for doing this with judges. So, can you explain
    how consequences are doled out to judges in the lower courts
    who do not adhere to the code of conduct?
        Mr. Sherman. Well, I think there's a couple of different
    mechanisms. One is the process of appeal if a judge doesn't
    appropriately recuse himself. That's an option for litigants.
    There's also a process that goes through the judicial
    conference where there is an underlying investigation and
    members of the bench are recommended for disciplinary action if
    there are violations.
        Mr. Swalwell. Chair, I just want to note also that I have
    not gotten on to some of the legislation around this issue that
    you are working or signed on to some of the letters that you
    have issued that you've worked on this.
        That's simply because I, in my personal capacity, have a
    case that I do believe will be in front of the Supreme Court,
    or it's high likeliness that it will be in front of the Supreme
    Court. I think would be inappropriate for me to use my
    legislative office to advance any issue or anything that could
    affect how the court recuses or does not recuse. So, don't read
    into it one way or the other, but I just want to put that on
    the record.
        Mr. Johnson of Georgia. I thank the gentleman--
        Mr. Issa. Mr. Chair. Since the last questioning round
    impugned, clearly impugned the Witness, I would like to have
    him at least have a minute to respond if he would like.
        Mr. Johnson of Georgia. I will give the Witness 30 seconds
    to respond.
        Mr. Paoletta. Thirty seconds, okay. I stand by that
    opinion. We had complete legal authority to pause that money
    for 60 days. I will point out that this was after the Obama
    Administration refused to provide stinger missiles to the
    Ukrainian people. It was a review that was signed off on up and
    down the chain in my office.
        You mentioned the--so, GAO has disagreed with Executive
    Branch actions over the years, including finding that President
    Obama broke the law in exchanging the traitor Bowe Bergdahl for
    prisoners. He broke the law in that exchange. So, GAO has their
    opinion. They are Congress. They're not independent. Okay? So,
    the Executive Branch has its own legal opinions. OLC is the
    binding authority.
        Mr. Johnson of Georgia. Your time has expired.
        Mr. Paoletta. OLC, they didn't disagree with my opinion.
    So, I stand by that 100 percent.
        Mr. Johnson of Georgia. The gentle lady from Minnesota, Ms.
    Fischbach. Excuse me, I'm sorry. The gentleman from North
    Carolina, Mr. Bishop, is recognized.
        Mr. Bishop. Thank you, Mr. Chair. I wasn't sure--my mic
    light was not coming on, so I think it's on though. You can
    hear me, right?
        Mr. Paoletta, I wasn't here for your oral testimony. I read
    your testimony. I thought at the end that you had something
    here that was worth noting and then commenting on. You said but
    the trigger for this new proposed legislation is a ginned-up
    smear attack on Justice Thomas and his wife.
        Mr. Cohen of Tennessee suggested that the legislation has
    been out there longer. I would suggest swapping the word
    hearing for legislation. I think the salient issue is the
    timing of this hearing. I do think that what you said is apt.
    This is a ginned-up smear attack on Justice Thomas.
        It brought to my mind the fact that I don't think things
    have changed so much in the 31 years that have passed since
    this event in the photo behind me. There you go. You know the
    progenitor of the process of Borking Supreme Court nominees,
    the Hon. Edward Kennedy, he got Senator Strom Thurmond, a close
    friend and collaborator with the big guy in the middle.
        On that occasion the core language that Justice Thomas
    used, if you will recall, at the end of his statement was from
    my standpoint as a Black American, as far as I'm concerned, it
    is a high tech lynching for uppity Blacks who in any way deign
    to think for themselves, to do for themselves, to have
    different ideas, and it is a message that unless you kowtow to
    an old order, this is what will happen to you. You will be
    lynched, destroyed, caricatured by a Committee of the U.S.
    Senate rather than hung from a tree. How little things have
    changed.
        Wouldn't you say that this hearing and its focus on Justice
    Thomas, the demeaning way in which Justice Thomas is
    distinguished from other jurists have been pointed out in your
    paper and the comments that have been made about them, the
    notion that Justice Thomas is dependent on his wife, has much
    changed at all since that hearing, since the comments from
    Justice Thomas 31 years ago?
        Mr. Paoletta. No. I am actually kind of shocked by
    Congressman Cohen's questions. I am not sure what he was
    driving at that Justice Thomas didn't ask a lot of questions. I
    do think he asked more earlier in his career. If you go back
    over the years with various justices, they didn't ask a lot of
    questions. I am a little concerned by what Congressman Cohen
    was trying to imply there.
        Mr. Bishop. So, the salient issue, again, seems not to be
    the timing of the legislation. It is the timing of the hearing.
    It is just like the well-timed warning outside the Supreme
    Court Building: You won't know what hit you. Right? That is
    what we are dealing with. That is what we are still dealing
    with today.
        I think it just worth noting how much this country has
    depended on the fortitude of Justice Thomas to withstand this
    kind of unseemly treatment for all of those 31 years and what a
    debt of gratitude the country owes to him.
        With that, I will yield back.
        Mr. Johnson of Georgia. The gentleman from New York, Mr.
    Jones, is recognized.
        Mr. Jones. Thank you, Mr. Chair, for holding this hearing
    and for introducing the 21st Century Courts Act, which I am
    very proud to co-lead with you and so many others on this
    Committee.
        I am so glad we are finally having this hearing because the
    American people need to understand what the hell is going on
    with this far Right Republican majority on the Supreme Court of
    the United States. Contrary to the claims made by my Republican
    colleagues today, who by the way would have impeached Justice
    Thomas by now if he were a liberal justice, there is nothing
    normal about what is happening at the Supreme Court of the
    United States.
        We have a Republican majority on the Supreme Court that is
    more corrupt than ever before, and none of those Republican
    justices is more corrupt than Justice Clarence Thomas, make no
    mistake about that.
        In the early 2000s, he repeatedly declined to report
    hundreds of thousands of dollars that Right-wing organizations
    paid his wife, Ginni Thomas. Then Justice Thomas voted to
    advance the radical agenda of his spouse's far-Right employers
    with impunity. Now, it has come to light that Justice Thomas
    ruled on cases concerning the 2020 presidential election and
    the insurrection right here at the Capitol, even though his
    wife was conspiring with the White House to overturn President
    Biden's victory by any means necessary.
        So, contrary to the claims made by the Ranking Member
    earlier today, no wonder public approval of the Supreme Court
    is at the lowest level it has ever been. It is not just the
    Republican party's--excuse me, the Republican majority's
    decision to take away fundamental rights like the right to an
    abortion. It is not just the Republican majority's decision to
    take away fundamental rights like the right to vote in this
    country. It is not just the Republican majority's decision to
    undermine your right to join a union in this country.
        It is not just the Republican majority's clear intention to
    make it more difficult for our Government to prevent gun
    violence this term. It is also the blatant corruption at the
    Supreme Court of the United States.
        So, I would submit to everyone that enough is enough. In
    the United States of America, no one should be above the law,
    not even Supreme Court justices.
        Mr. Sherman, let me ask you some yes or no questions to
    piece together what we have heard today. Federal law requires
    that ``Any justice of the United States shall disqualify
    himself in any proceeding in which his impartiality might
    reasonably be questioned,'' correct?
        Mr. Sherman. Yes.
        Mr. Jones. Now, do you think it might be reasonable to
    question whether Justice Thomas, the spouse of someone who
    repeatedly urged the White House to overturn that free and fair
    2020 election could impartially participate in proceedings
    about the way forward, attempt to overturn the 2020 election,
    proceedings that may well reveal evidence of his spouse's high-
    level role in a criminal conspiracy?
        Mr. Sherman. Yes. Absolutely.
        Mr. Jones. Yet in Trump v. Thompson, Justice Thomas was the
    only justice who voted to deny the January 6 Select Committee
    access to White House records about the insurrection that might
    have included Ginni Thomas' text messages with Donald Trump's
    former Chief of Staff, Mark Meadows. Of course, he was the
    Chief of Staff at the time.
        So, what Justice Thomas did was not just unethical; it was
    illegal. It was in violation of the recusal statute. There is
    no doubt about that, not among people of good conscience and
    sound intelligence. Yet, as you have testified, nobody could
    compel Justice Thomas to recuse because the statute lets each
    justice decide for themselves, correct?
        Mr. Sherman. Yes.
        Mr. Jones. So, the only person who decided that Clarence
    Thomas didn't need to recuse himself from cases concerning the
    insurrection was Clarence Thomas himself, correct?
        Mr. Sherman. Correct.
        Mr. Jones. How could that possibly be consistent with the
    bedrock legal principle that no one should be the judge in
    their own case?
        Mr. Sherman. It is not, and it is not even consistent with
    Clarence Thomas' prior recusal practices. There is no standard,
    so we will never know.
        Mr. Jones. How would the 21st Century Courts Act change
    that?
        Mr. Sherman. Well, I think it would do a number of things,
    including allowing for transparency in the recusal process,
    extending the criminal conflict of interest statute to the
    Federal Judiciary, which would put some skin in the game for
    the justices, and obviously require them to create a code of
    conduct, which has been sorely lacking and obviously is
    desperately needed.
        Mr. Jones. You stand by your claim, as has been articulated
    by scholars throughout the legal academy, that Congress is well
    within its authority in enacting legislation that would, among
    other things, implement a binding code of ethics on the Supreme
    Court justices.
        Mr. Sherman. I do. I believe that if the Court were to
    challenge that, it would further undermine their credibility in
    a very dangerous way.
        Mr. Jones. You won't have any argument from me on that.
        I yield back.
        Mr. Johnson of Georgia. The gentleman from Wisconsin, Mr.
    Tiffany, is now recognized for five minutes.
        Mr. Tiffany. Thank you, Mr. Chair. I yield my time to the
    Ranking Member, Mr. Issa.
        Mr. Issa. Thank you. I thank the gentleman for yielding. I
    want to pick up where things were left off a little bit. There
    was an earlier set of questions about Justice Thomas' not
    asking questions. I am trying to understand something about
    Justice Thomas, because I have known him for a long time. He
    has been a figure in Washington for civil rights before he was
    a justice on the Supreme Court.
        Let me go through a couple of these things. Is it that he
    is too strident, strong willed, and immovable as a justice that
    he never listens? Is that why he doesn't ask questions?
        Mr. Paoletta. No. I think that is the exact opposite, and I
    think he has said that the ``gotcha'' type questions is more of
    showmanship on the Court where the various justices are kind of
    arguing among themselves, not really--and using the litigants
    as a cutout to ask the questions.
        So, no, I think Justice Thomas listens to questions. Again,
    when you look at his jurisprudence, it is as independent as any
    justice up there. So--
        Mr. Issa. Let me go to the opposite side, then. Is he so
    pliable and without a core set of values that he could be
    easily influenced by somebody close to him?
        Mr. Paoletta. Absolutely not. That is anathema to Justice
    Thomas' entire life.
        Mr. Issa. Now, I have seen, I don't know, 18 or 20 or maybe
    a little more justices go through confirmation process in my
    life, and a chunk of that during my service in 22 years. Can
    you name any justice on the Supreme Court, now or in the recent
    past, who lacks both a broad history of thinking and decision-
    making sufficient to have high confidence that they make their
    own decisions? Can you think of even one justice that you would
    say lacked that ability?
        Mr. Paoletta. No.
        Mr. Issa. Then why is it that Justice Thomas seems to be
    the one that is being questioned here for one of those two,
    either too strident or too Gumby-like, and not at all the level
    of intellect that every other justice seems to be given as a
    granted by everyone on this panel as far as I can tell?
        Mr. Paoletta. I think it is--why? I think there is a racism
    that is directed at Justice Thomas. If I could just read from a
    book from 1994, 1995, which is called ``Strange Justice,'' by
    Jane Mayer and Jill Abramson. They said,

            When Thomas got on the Court, he developed an unusually close
            friendship with--some would say reliance--on his fellow jurist,
            Laurence Silberman. Thomas served on the Court. He is generally
            quiet during oral argument, according to clerks. In a departure
            from normal practice, the Administration took an active role in
            helping Thomas pick his clerks. Most were carefully culled from
            the best law schools, and many of them were Federalist Society
            alums. If draft opinions needed a little embellishment,
            according to the clerks from other chambers, Thomas leaned
            especially heavy on them . . . . Several clerks from other
            chambers remember Thomas as a slow writer.

    This is just pure racism. That is what this is.
        Mr. Issa. So, what you are seeing is decades of attacks on
    Justice Thomas because he is Black.
        Mr. Paoletta. Conservative, yes.
        Mr. Issa. Conservative, a bad combination.
        Mr. Paoletta. Yes.
        Mr. Issa. Let me go--
        Mr. Sherman. Congressman, might I offer a response?
        Mr. Issa. In just a second. One follow-up. We, on this
    Committee, have in the past offered and gone through with
    articles of impeachment for judges for their conduct. We do so
    based on not the same standard as the Executive Branch. We do
    so based on that provision that includes good behavior,
    correct?
        Now, if, without a written set of documents saying this is
    what a judge must do, or with one, in either case, wouldn't the
    removal of a justice from the high court be (1) based on
    impeachment as the only tool to remove him; and (2) based on
    our belief that they had violated high crimes, misdemeanors, or
    the ``good behavior''?
        Mr. Paoletta. Correct.
        Mr. Issa. So, even though it might be helpful for Congress
    to have a set of standards, and even though we could label that
    set of standards over them, at the end of the day, isn't the
    standard for removal of a justice exactly the same?
        Mr. Paoletta. Yes.
        Mr. Issa. Thank you.
        I thank the gentleman. Yield back.
        Mr. Johnson of Georgia. Votes have been called about 30
    minutes ago, and there are still a few voters who have not
    voted yet.
        Mr. Issa. We are among them.
        Mr. Johnson of Georgia. We are among them, so we must
    depart at this time. We will return in about 55-60 minutes. If
    you all will hang loose until then, we would greatly appreciate
    it.
        With that, we will recess.
        [Recess.]
        Mr. Johnson of Georgia. We will resume this hearing.
        I have waited for some minutes now, maybe 5-7, for any of
    my colleagues to reappear. None having done so, I am left--oh,
    Ms. Ross. Okay. All right. So, we do have a colleague.
    Representative Ross, I will yield to you five minutes.
        Ms. Ross. Mr. Chair, I believe you are on mute. We can't
    hear you.
        Mr. Johnson of Georgia. You cannot hear me? Okay. Testing,
    testing. Okay. Can you hear me now? Testing, testing.
    Representative Ross, can you hear me? I don't think you can.
        We will recess for just a couple of moments to work out
    this technical glitch.
        [Recess.]
        Mr. Johnson of Georgia. Okay. We are now back into session.
    Call this Committee meeting back to order.
        First, let me apologize to the Witnesses. I told you when
    we left at about after 4:15 p.m. that it would be about 55
    minutes to an hour, and it ended up being about two hours. For
    that, I deeply apologize. I know you are busy and have things
    to do, so we appreciate you sticking around.
        There is one additional Member who has come back to offer
    questions to you. It is Representative Ross. Before I go to
    her, I just wanted to congratulate her on today's Senate
    passage of her legislation, hers and Representative Issa's
    legislation, the Courthouse Ethics and Transparency Act, which
    will proceed to President Biden for his signature.
        Congratulations to you, Representative Ross. You may begin
    with five minutes of questions.
        Ms. Ross. Well, thank you, Mr. Chair. Thank you for your
    leadership and for being a co-sponsor of the bill, along with
    Mr. Roy.
        I want to thank the panelists for joining us today and for
    your patience. I hope somebody else comes to ask a question or
    my questions are worth your time. I value your suggestions and
    insights into how we can improve the integrity of the Supreme
    Court.
        It is only appropriate that the highest court in our
    judicial system be held to the highest ethical standards. Let's
    remember, as you have all said, these are lifetime
    appointments. So, there is no check on what they do other than
    the extreme action of impeachment.
        For years we have seen the Supreme Court justices avoid
    recusals, and this compromises their ability to interpret the
    law impartially and without influence. I am grateful of the
    work that this Committee has done, especially with the
    Courthouse Ethics Act that Chair talked about. I am grateful
    that was both bipartisan and bicameral.
        It is an important first step toward an impartial judiciary
    through the creation of financial transparency requirements for
    Federal judges. We must do much more to ensure that the Supreme
    Court operates in a way that shows no favor and is free from
    external influences that place unbiased interpretation on the
    law into question.
        This means putting the mechanisms in place to guarantee
    that justices recuse themselves properly from cases and are
    held accountable when they do not, and avoid conflicts in the
    first place. I hope that Congress will move forward and
    establish a Supreme Court code of ethics if the justices
    themselves are unwilling to do so. Of course, that would be the
    first choice.
        So, what I would like to do is I have two questions very
    quickly, Mr. Roth, because I would like to get to my second
    question. We talked about the Courthouse Ethics Bill. Do you
    believe it will succeed in getting judges and justices to be
    more aware and mindful of potential conflicts? If you could be
    brief, that would be great--
        Mr. Roth. Yes.
        Ms. Ross. --so I can do my second question.
        Mr. Roth. Sure, yes. Absolutely. I think that there is a
    lot of embarrassment that followed The Wall Street Journal
    story and the fact that your bill carried through. They are
    already changing their habits, and we will see some divestments
    in the coming years, and I think it will be a big step in the
    right direction towards financial accountability.
        Ms. Ross. Thank you so much. Mr. Gillers, you said in your
    testimony,

            I have long defended the right of judicial spouses, including
            Ms. Thomas specifically, to join public debates on issues that
            could come before their husbands or wives without affecting the
            ability to sit on cases. Attention to detail, rather than
            superficial similarities, reveals that this time the Thomas'
            went too far.

    You have said that the revelation that Ginni Thomas actively
    communicated with Mark Meadows regarding the results of the
    2020 election was a game changer. Could you explain this to us
    and what distinguishes that activity from freedom of speech?
        Mr. Gillers. About 12 or 15 years ago, I began to get
    questions from the press about Virginia Thomas' activism and
    the affect, if any, on her husband's ability to sit. I always
    said they live in different spheres, and we do not impute
    ideology between spouses. We impute financial interests but not
    ideology.
        Oftentimes the reporter was incredulous, but that was and
    is my position. It may not always help with public confidence
    in the judiciary, but each has a right to his or her own
    professional life.
        When I was called by The New Yorker in January, I
    maintained that position. If you read the article again, you
    will see that although I wasn't happy with--and am not happy
    with the extent of Virginia Thomas' activism because I believe
    it hurts the Court, but she has a right to do it, and if she
    wants to do it, that is her prerogative.
        So, I did not say, and would not say, and the article does
    not go so far as to say--
        Ms. Ross. What about the issue of the communications with
    Mr. Meadows?
        Mr. Gillers. So, then what happened is, in March, Meadows'
    texts appeared. The game changer was she was--Virginia Thomas
    was now not merely voicing her opinion, but she joined the
    ``Stop the Steal'' effort with the strategy ultimately, as it
    turned out to be true, to go to the Supreme Court, to go to her
    husband on the Court, and the rest of the Court.
        So, when she shifted from voicing her views publicly to
    becoming an insider, a player in the ``Stop the Steal'' effort
    by going to the senior partner, if I may, of that effort--Mark
    Meadows--with 21 texts in one month, and we may find out that
    there was even more thereafter--when she did that, she had an
    interest in the cases in the Supreme Court as an insider, and
    because she has an interest in not seeing future disclosures of
    what she may consider private communications about ways to stop
    the results of the election. That changed it for me after all
    those years.
        Ms. Ross. Well, thank you very much.
        Mr. Chair, thank you for your indulgence, and I yield back.
        Mr. Johnson of Georgia. Thank you.
        Mr. Paoletta, I would ask if you will have a response to
    that.
        Mr. Paoletta. Ginni Thomas expressed her concerns about the
    election to Mark Meadows, her long-time friend. When you see
    other--again, it is in the context of--I don't think she is on
    any team. I think she was expressing her views, just like Judge
    Rein-hardt's wife filed a brief, actually tried to intervene,
    talked to the lawyers before, so I would assume that is kind of
    behind the scenes of arguing that case on Proposition 8 on the
    same-sex marriage issue.
        So, I don't see any difference between the Reinhardt case.
    I know Professor Gillers is trying to make that distinction,
    but I don't see any distinction there. She sent some texts.
        Mr. Johnson of Georgia. Well, assuming that there is no
    distinction, doesn't it still call into question whether or not
    there is a need for a code of ethics?
        Mr. Paoletta. Well, again, my view is that Reinhardt was
    proper in not recusing, just like Justice Thomas was proper in
    not recusing. So, that is my view.
        Mr. Johnson of Georgia. When should a justice recuse?
        Mr. Paoletta. When they are--in my view, it is when your
    spouse or family member has--
        Mr. Johnson of Georgia. So, in accordance with the statute?
        Mr. Paoletta. In accordance with the statute, you are a
    party to the case, you are a litigant right before the case. As
    Professor Gillers points out in his opinion on the Reinhardt
    thing, Ms. Ripston was not a party or a lawyer before the
    Court, and that is the key, and she didn't have a financial
    interest. Ginni Thomas has no financial interest in there, just
    like he says.
        The interest that she has is she cares about election
    fraud, just like the interest that Ramona Ripston had was on
    Proposition 8, and stopping the same-sex marriage ban.
        So, to me there is no distinction between the two. In fact,
    I would say that Ginni Thomas was further away. I mean, Ramona
    Ripston ran the ACLU organization, and she was involved with
    getting briefs put together, maybe minimally. I didn't do my
    own investigation, but at least her own husband says that she
    was involved with the beginnings of it.
        They actually filed a brief--two briefs--in the court
    below. That is taking a position on a case that is now before
    her husband.
        So, I will give the other one that I have talked about a
    lot which is Judge--
        Mr. Johnson of Georgia. It still did not require Reinhardt
    to recuse in that circumstance. What is your opinion about
    that, Professor Gillers?
        Mr. Gillers. There are two very important differences
    between the Reinhardt situation--
        Mr. Johnson of Georgia. Microphone.
        Mr. Gillers. Sorry. There are two very important
    differences between the Reinhardt situation and the Thomases.

            (1)  Ramona Ripston had no worry that the decision of the
            Reinhardt court would reveal confidential information that she
            exchanged in private in texts. There was no threat to Ramona
            Ripston of that.
            (2)  Ripston and the ACLU were not before her husband. They did
            not file an amicus brief in the Ninth Circuit. However, the
            case before Judge Thomas had the team that Ms. Thomas joined
            before him.

        Mr. Paoletta. Okay. When you talk about team, what does
    ``team'' mean?
        Mr. Johnson of Georgia. All right.
        Mr. Paoletta. I am sorry.
        Mr. Johnson of Georgia. We won't get into it tat for tat
    between Witnesses.
        Mr. Paoletta. Okay. Sorry.
        Mr. Johnson of Georgia. I will let you conclude, and then I
    will go to Congressman Jordan.
        Mr. Gillers. Ms. Thomas could have done a number of things
    after the election was called. She could have talked to her
    friends. She could have gone to social media. She could have
    gone to the blogosphere. She could have written an op ed. Where
    did she go? She went to the man who would predictably run the
    operation.
        Mr. Johnson of Georgia. A party to the litigation,
    essentially.
        Mr. Gillers. Sorry?
        Mr. Johnson of Georgia. A party to the litigation,
    essentially.
        Mr. Gillers. Yes. She became part of the litigation, and
    that litigation would predictably get up to the Supreme Court,
    which it did, and her husband.
        Mr. Johnson of Georgia. Okay. Thank you.
        Representative Jordan, you are recognized.
        Mr. Jordan. Thank you, Mr. Chair. I would ask unanimous
    consent to first enter into the record a paper by Thomas
    Jipping, senior legal fellow at the Edwin Meese III Center for
    Legal and Judicial Studies at the Heritage Foundation on the
    subject of the hearing today.
        Mr. Johnson of Georgia. Without objection.
        [The information follows:]

                           MR. JORDAN FOR THE RECORD

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

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Mr. Jordan. Mr. Paoletta, does it matter whether a Supreme
    Court justice asks questions or doesn't ask questions? Is that
    an ethical concern?
        Mr. Paoletta. No, sir.
        Mr. Jordan. Yeah. Mr. Thomas, if he chooses to ask
    questions, God bless him. If he chooses not to, God bless him.
    He is a member of the Supreme Court. He can conduct himself as
    he wants and get to the decisions that he wants to get to. As
    was raised earlier I think by one of our colleagues on the
    Court, why do you think they would raise that?
        Mr. Paoletta. To disparage Justice Thomas.
        Mr. Jordan. To keep doing what they started, what, 30 years
    ago?
        Mr. Paoletta. Yeah.
        Mr. Jordan. Isn't this really, in your mind, Mr. Paoletta,
    this is about the Left continually coming after people who--
    conservative jurists who are being put on the Supreme Court.
    You can just go down the list, and the treatment that they--it
    started with Justice Thomas. Well, it started with Bork--we
    talked about that--but it started with Justice Thomas.
        I remember, was it Justice Alito's wife who was in the row
    behind him I think, and moved to tears based on what they were
    doing to Justice Alito?
        Mr. Paoletta. Yeah. I think they accused him of being a
    racist.
        Mr. Jordan. Yeah. Then, of course, we saw what they did--
        Mr. Paoletta. Falsely accused him of--
        Mr. Jordan. Falsely accused. We saw what they did to Judge
    Kavanaugh. We saw what they did to Ms. Coney Barrett. Now,
    Justice Thomas, they are coming at him a second round. This is
    all about the Left's desire, and I said this in my opening
    statement--to pack the Court. Would you agree?
        Mr. Paoletta. Yes. I would say they have been coming after
    him multiple times over the years. I think 2011 was the one
    with Obamacare, he needed to be impeached because Ginni Thomas
    designed to have an opinion and express it that it was a
    disaster, and Justice Thomas didn't recuse.
        I think Professor Gillers agrees with me on that. These two
    gentlemen I think probably disagree with me that Justice Thomas
    should recuse. I think it is quite clear he shouldn't recuse.
        Mr. Jordan. Yeah. What do you think their ultimate
    motivation is? The Left's continual attacks. Just attacks that
    are so far out of the norm. Again, what happened to Judge
    Alito, what happened to Judge Thomas, what happened to Judge
    Kavanaugh, why are they so focused on this?
        Mr. Paoletta. Number one, I think right now, I think they
    think the Court is going to be issuing a number of rulings that
    are going to wipe away a number of liberal, longstanding
    precedents.
        I think it is--and to disparage to Court, and that is why I
    think that the poll numbers are down. One follows the other,
    okay? So, now they get to say the poll numbers are down; we
    need to do something with the Court.
        I also think it is to send a message to the other
    conservative justices that nobody likes to be disparaged and
    caricatured--and destroyed. It is not fun. You need to have an
    iron backbone like Justice Thomas does, in my opinion.
        So, they know they will never bend him. I am certain of
    that, and I am certain that his opponents--they want to try to
    marginalize him, and they have failed at that utterly, in my
    view. I think it is to send a message to the newer justices
    that are up there.
        Mr. Jordan. That is always the goal. When the Left comes
    after people, when they try to disparage, when they put them
    in--what Bari Weiss described when she resigned from the--Bari
    Weiss wasn't on the Right. She was on the Left. When she
    resigned from The New York Times, because she couldn't offer an
    opinion that differed from the woke mob, she says because if
    you do, if you go against the group think, if you go--and you
    engage in wrong speech or wrong think, as she described it, you
    will face the digital Thunderdome. They will come after you,
    and it is all designed to chill speech of other individuals.
        The Left is so--today's Left says, if you don't agree with
    them, you are not allowed to talk. If you try, they are going
    to call you names and try to cancel you. Again, don't take my
    word for it. Take someone on the Left--Bari Weiss' word for it.
        You want to know how much they want to control speech and
    go after people who they disagree with? Just look at their
    reaction to what Elon Musk did this past week. The Left
    controls everything. They control everything. One platform on
    the social media--and all the social media platforms, one
    platform may now go to where they are actually fair, oh my
    goodness, the Left loses their mind because a guy who builds
    electric cars and believes in the First Amendment just bought a
    company. Wow.
        So, that is what is at stake, and that is why this is so
    wrong, and they come after Justice Thomas in the name of
    ethics. It is so transparent what they are doing.
        Mr. Paoletta. I agree with you. Justice Thomas has
    withstood it all, and he has been on the Court for 30 years,
    and he now has I think 15 or 16 former law clerks on the
    Federal bench, including Kat Mizelle, who just issued the order
    striking down the Biden mandates. So, his legacy is continuing
    on.
        Mr. Jordan. He is a great American and someone we should
    put up there as a role model for so many people, and yet the
    Left wants to come after him. It is wrong.
        So, I appreciate you coming here today and defending him
    and defending the truth and the way our Constitution and the
    way our system is supposed to work.
        With that, Mr. Chair, I yield back.
        Mr. Johnson of Georgia. Thank you, Mr. Jordan.
        Mr. Sherman, how do you respond to the idea that it is
    somehow racist to express legitimate concerns about Justice
    Thomas' unethical conduct?
        Mr. Sherman. Thank you for the question. Congressman, I
    firmly believe that multiple things can be true at the same
    time. I believe that Black men in America face racism, and that
    Justice Thomas likely has faced racism in his past. I also
    think that there is a litany of ethics abuses committed by
    Justice Thomas that raise significant questions about his
    conduct in his role as a Supreme Court justice.
        I think his conduct with respect to the recusals in Trump
    v. Thompson and other cases that implicate not just his wife's
    conduct, (1) threaten our democracy; and, frankly, (2) differ
    from his approach to cases that have involved conflicts with
    his son. I think it is reasonable to question why Justice
    Thomas has chosen to recuse in cases where there is a minimal
    conflict risk with respect to his son, which I think was
    appropriate, but not chosen to recuse in a case where it is not
    just his wife's views, but it is that her conduct is implicated
    in the documents that were at issue.
        The White House was talking about a Supreme Court strategy
    which would have to presume--include discussions about strategy
    with respect to Justice Thomas and certainly could have
    included information about Mark Meadows' communications with
    Ginni Thomas. So, I think it is highly pertinent for this
    committee, and I think it is, quite frankly, laughable to label
    those legitimate concerns as racist, just because Justice
    Thomas has faced racism in the past.
        Mr. Johnson of Georgia. Thank you.
        Mr. Roth, you have described Supreme Court justices taking
    lavish junkets, enjoying suites of rooms reserved for them and
    their guests, and generally enjoying benefits for which they do
    not have to pay and which they often do not have to disclose to
    the public.
        Can you tell us why justices do not have to disclose these
    gifts?
        Mr. Roth. Sure. So, there is a personal hospitality
    exemption that the justices construed to be very broad. So, it
    is maybe not just staying, when Justice Ginsburg would go to
    New York, she would stay with her daughter, or Justice Breyer
    staying with his grandkids. The justices construe it to say--
    Justice Thomas construes it to say that, whenever he is flown
    on a private plane by a certain financier, who may be a friend
    of his but has also donated $5 million to the Republican Party,
    that counts as personal hospitality, and I don't have to put it
    on my annual financial disclosure report.
        We know that even if it is not personal hospitality, and we
    think it is a trip that is covered by the Ethics in Government
    Act, which then translates to being reported on the financial
    disclosure report, we know that the justices are leaving things
    off them.
        When we have done investigations into justices' trips, we
    have found instances where they are in a certain place at a
    certain time, speaking to a certain audience, and it is not
    personal hospitality, and it is not on the disclosure and we
    know that they have gotten those perks for free.
        So, to me, it is just a pattern of many years of just
    saying, I am too good for this. I am above the law. Maybe the
    Ethics in Government Act doesn't apply to me. I think that
    through the 21st Century Courts Act and other legislation, we
    have an opportunity to change that.
        Mr. Johnson of Georgia. Now, you have documented--your
    organization has documented numerous instances of Democratic-
    appointed justices engaging in these activities that they don't
    report and using this personal hospitality exemption to their
    benefit, to the detriment of the taxpayers and to the American
    people, who deserve to know who is paying for gifts for their
    Supreme Court justices. You have documented Democratically
    appointed and Republican appointed.
        Mr. Roth. Oh, yeah. Absolutely.
        I mean, part of this is a numbers game, right? Since in my
    entire lifetime, and 15 years before that, there have been more
    Republican-appointed justices than Democratic-appointed
    justices, right?
        So, it is just going to be natural that over time it is
    more likely that the Republican-appointed justices are going to
    have more of these potential ethical failings. So, it is not
    going after a specific justice or a specific party. I do think
    that some of the Justice Thomas examples are outside the
    mainstream of some of these instances of flouting the ethics
    rules.
        This is something where we have seen over time both
    justices appointed by the Left and the Right have been
    ``guilty'' of these abuses. I think an ethics code and a
    recusal statute expansion would assist in ending that.
        Mr. Johnson of Georgia. Mr. Sherman, are the types of
    inducements that justices receive coming from parties with
    business before the Court or from individuals seeking to
    influence the Court's rulings? Which, or both? Why would anyone
    try to offer free transportation, free hotel, and free meals?
    Why would anyone do that other than either they have business
    that is about to come before the Court or is in the bosom of
    the Court, and they are trying to influence the Court? Why else
    would they do this for justices?
        They are doing it, by the way, claiming a tax deduction for
    business expense. So, the American people are paying for it,
    essentially. Why would any entity do that for a Supreme Court
    justice?
        Mr. Sherman. I can't assign intentions to every entity, but
    it seems quite clear that the general motivation is, as you
    said, to ingratiate themselves with members of the Court,
    perhaps to introduce legal theories that may not be front of
    mind to have an audience for their members and their--and folks
    that support their legal ideology.
        At bottom, whatever the motivations, it certainly creates
    an appearance problem that would lead a reasonable person to
    question the impartiality of justices that are going on these
    junkets, and, frankly, that aren't disclosing them, and that is
    exactly why the Supreme Court needs a code of conduct.
        Mr. Johnson of Georgia. Professor Gillers, in light of what
    we have heard about these junkets and these trips, all-expense
    paid, not reported in many instances, what affect does this
    have on our democracy?
        Mr. Gillers. Well, of course, our point of reference is
    ordinary people and the kinds of connections they will make.
    So, the public will see this as giving the donor certain,
    however slight, but certain advantages before the recipient of
    the largesse. It is a cheap investment.
        We talk about suites and travel, but in terms of the
    amounts of money at stake for people who litigate commercial
    cases in the Supreme Court, it is a pittance. So, from the
    public's point of view, remember, the public cannot do this.
    From its point of view, it looks like there is a thumb on the
    scale. That may not be literally true. Maybe that is unfair as
    it turns out, but that is how it will appear, and appearances
    are important.
        Mr. Johnson of Georgia. Well, thank you. I appreciate all
    the Witnesses for your testimony today. I would remind everyone
    that the hearing was entitled ``Building Confidence in the
    Supreme Court Through Ethics and Recusal Reform.'' That was the
    title of our hearing. I think we have largely stood by that in
    terms of substance of the hearing, and I want to thank the
    Witnesses for their appearance today.
        Without objection, all Members will have five legislative
    days to submit additional written questions for the Witnesses
    or additional materials for the record.
        Without objection, the hearing is adjourned.
        [Whereupon, at 6:42 p.m., the Subcommittee was adjourned.]