[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
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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
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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
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[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.]