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



 
  BUILDING CONFIDENCE IN THE SUPREME COURT THROUGH ETHICS AND RECUSAL 
                                REFORMS

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

                                HEARING

                               BEFORE THE

    SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

                                 OF THE

                       COMMITTEE ON THE JUDICIARY

                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             SECOND SESSION

                               __________

                       WEDNESDAY, APRIL 27, 2022

                               __________

                           Serial No. 117-64

                               __________

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


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

             U.S. GOVERNMENT PUBLISHING OFFICE 
48-845                  WASHINGTON : 2022               
               
               
               
               
                       COMMITTEE ON THE JUDICIARY

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

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

         AMY RUTKIN, Majority Staff Director and Chief of Staff
               CHRISTOPHER HIXON, Minority Staff Director
                                 ------                                

           SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND
                              THE INTERNET

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

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

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

                              ----------                              

                       Wednesday, April 27, 2022

                                                                   Page

                           OPENING STATEMENTS

The Honorable Henry C. ``Hank'' Johnson, Jr., Chair of the 
  Subcommittee on Courts, Intellectual Property, and the Internet 
  from the State of Georgia......................................     2
The Honorable Darrell Issa, Ranking Member of the Subcommittee on 
  Courts, Intellectual Property, and the Internet from the State 
  of California..................................................     3
The Honorable Jerrold Nadler, Chair of the Committee on the 
  Judiciary from the State of New York...........................     6
The Honorable Jim Jordan, Ranking Member of the Committee on the 
  Judiciary from the State of Ohio...............................     8

                               WITNESSES

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

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

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


                       BUILDING CONFIDENCE IN THE

            SUPREME COURT THROUGH ETHICS AND RECUSAL REFORMS

                              ----------                              


                       Wednesday, April 27, 2022

                        House of Representatives

             Subcommittee on Courts, Intellectual Property,

                            and the Internet

                       Committee on the Judiciary

                             Washington, DC

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



      

                        MR. ISSA FOR THE RECORD

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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


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



      

                 MR. JOHNSON OF GEORGIA FOR THE RECORD

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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


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

                     STATEMENT OF GABE ROTH

    Mr. Roth. Thank you.
    Chair Johnson, Ranking Member Issa, Members of the 
Subcommittee, back in 2016, a Supreme Court justice failed to 
recuse in a major patent case despite owning $250,000 worth of 
shares in one party's parent company. That same year, a 
different justice spoke at a $500-per-plate dinner with finance 
and oil executives. Another justice that year omitted from her 
financial disclosure report the fact that a public university 
paid for as many as 11 rooms for her in one of the State's 
fanciest hotels.
    In 2019, in the Supreme Court building, two justices met 
with the head of an organization that had submitted amicus 
briefs in three then unresolved cases.
    In 2020, a justice failed to recuse in a case concerning 
the constitutionality of a Federal law that she likely worked 
on a legal strategy to defend in her previous job.
    Last year, a justice had dinner with a prominent politician 
and a dozen of his friends, and then gave a speech, with the 
politician at her side, in which she said the Supreme Court 
``is not comprised of a bunch of partisan hacks.''
    These are just a handful of examples of Supreme Court 
justices flouting basic ethics rules in the handful of years 
that my organization Fix the Court has existed. I have dozens 
more in my written statements. None of the justices just 
referenced is Clarence Thomas.
    When asked over the years how they confront questions of 
ethics that go beyond the recusal law, the justices say they 
look to precedent, or scholarly articles, or seek advice from 
their colleagues or law professors. Which precedents, which 
articles, which colleagues, and which professors? That there is 
not a single, definitive source the justices use for guidance 
means that they will be more likely to come up with different 
conclusions about their ethical obligations.
    This era of nine justices operating, as has been said, like 
nine independent law firms must end.
    It shouldn't be the case that half the justice accept 
flights on private planes paid for by big-time political 
benefactors when the rest stick to business or coach, or that 
two justices leave free trips off their annual financial 
disclosures while the rest are filing accurately, or that three 
justices trade individual stocks and are unable to participate 
in some cases because of it and the rest do not, and that two 
justice recuse in cases involving the work of a family member, 
but two justices do not when faced with similar circumstances.
    For these reasons, and more, we need a formal written code 
of conduct for the Supreme Court of the United States.
    A code is not a panacea. The rules governing recusal must 
themselves be expanded and modernized. If a justice's spouse, 
for example, is paid a quarter million dollars at the time her 
employer filed an amicus brief on a major case, that justice 
shouldn't hear the case.
    If a justice received lavish gifts and was flown around the 
country by individuals and organizations funding merits and 
amicus briefs, there should be recusals in those cases. If a 
justice's wife's communications with a third party are subject 
of a congressional investigation, and the Supreme Court is 
asked to rule on the validity of that investigation, the 
justice should recuse.
    The current recusal law says, among other things, that a 
justice--the judge or justice must recuse when ``his 
impartiality might reasonably be questioned.'' I am a 
reasonable person, and I question Justice Thomas' impartiality 
in each of the examples I just mentioned and, sadly, in many 
more.
    I will grant the ``reasonable person'' standard could use 
some improvement. We need a law to ensure judges and justices 
take the proactive step of informing themselves of every 
personal interest and every financial interest of theirs, and 
their spouses, and their families that could be implemented by 
the outcome of a proceeding. They should recuse when those who 
financially backed their confirmation appear as litigants. When 
they are given a free trip, there should be a cooling off 
period afterwards.
    Take that trip, but then wait a few years before you 
participate in a case involving the sponsor.
    All the reforms I have discussed, a formal ethics code, a 
more exacting recusal standard, and a cooling off period are in 
the 21st Century Courts Act of 2022 that was introduced earlier 
this month.
    Now, why do we need this bill? Because time and again we 
see that, left to their own devices, the justices will do 
nothing to improve their policies and build a more modern, 
trustworthy institution. Despite all the ethics lapses I have 
mentioned, the justices have not lobbied--and they and the 
judiciary have lobbyists--the justices have not lobbied for any 
new laws, nor have they put any new accountability measures in 
place, to my knowledge.
    Finally, this hearing is not the first attempt at fixing 
the judiciary's ethics lapses. The campaign to improve the 
recusal law and to impose an ethics code goes back 50 years.
    More recently, though, in 2018, the Full Judiciary 
Committee unanimously passed a reform bill called the Judiciary 
ROOM Act. Led by Ranking Member Issa, the bill included a 
SCOTUS Code of Conduct, a requirement that the justices explain 
their recusal decisions, and a live streaming requirement.
    These elements were carried forward into the 21st Century 
Courts Act of 2020. They are included in the 21st Century 
Courts Act of 2022. It is the spirit of bipartisanship that I 
pray carries the day, and that I hope that we can talk about 
more in our ensuing discussion.
    Thank you again for the opportunity to testify.
    [The statement of Mr. Roth follows:]
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
    
   
    
    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:]
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
    
       
    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:]
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
        
    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:]
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
  
    Mr. Johnson of Georgia. Thank you, Professor Gillers.
    We will now proceed under the five-minute rule with 
questions. I will begin by recognizing myself for five minutes.
    I will note the fact that in law school I was always taught 
that lawyers and judges should avoid even a hint or an 
appearance of impropriety. For judges, impartiality is on top 
of that.
    I would like to also recognize the fact that there is 
immense popular support for a Supreme Court code of ethics. 
This has come from every quarter: Ethics professors, Members of 
Congress, analysts, and commentators on all sides of the 
political spectrum, from the progressive Left to the avowed and 
life-long conservatives.
    A recent poll found that 71 percent of voters favor a code 
of ethics, including 76 percent of Democrats, and 63 percent of 
Republicans. Few policies are able to attract majorities that 
are so decisive.
    Mr. Roth, your organization has been working on this issue 
for nearly a decade. Have you ever seen so much high-profile 
public support for a Supreme Court code of ethics as we do now?
    Mr. Roth. I think the support has actually been, been 
consistent over time. I have polled this question for since 
2012 when I ran a group called Coalition for Court Transparency 
that was just singularly focused on broadcast, and then it 
became Fix the Court to focus on other issues.
    It always polls in the 70s or 80s, always polls across 
partisan lines. Then, that is just a simple quantitative 
question.
    When you do qualitative, it is kind of like what Professor 
Gillers said, folks are surprised that the Supreme Court don't 
have a code of conduct. So, once they realize that, whether in 
quantitative or qualitative, they are generally supportive, 
regardless of their political valence.
    Mr. Johnson of Georgia. Thank you.
    Mr. Roth, it seems like the only individuals who do not 
support a code of ethics for the Supreme Court are apparently 
Mr. Paoletta and also the members of the Supreme Court itself.
    Are you aware of any other significant opposition to the 
code of conduct applying to Federal--to justices of the Supreme 
Court?
    Mr. Roth. No, I am not.
    To me what is interesting is that in 2019, Justice Kagan 
was testifying about the budget, and the Supreme Court's 
budget, and she was asked about a code of conduct. She said 
Chief Justice Roberts is thinking about implementing one.
    So, this has been on the justices' mind for a while now. 
There hasn't been any updates to that statement in 2019. This 
is definitely something that has been on the justices' mind. I 
think that after many, maybe this year or maybe some more years 
of congressional pressure it will happen.
    Mr. Johnson of Georgia. Thank you.
    Professor Gillers, many of the current Supreme Court 
justices were judges of the lower courts where they were 
subject to more stringent ethical standards. Yet, when they get 
to the high court they act, they start acting in ways they 
could not have acted when they were on the Circuit or District 
Courts.
    Why do you think that is? Is there any merit to the notion 
that justices Act in ethically murky ways simply because they 
can?
    Mr. Gillers. Well, I hope not. Gabe would know more about 
what they do that is questionable.
    Why do people who are promoted from a circuit to the 
Supreme Court Act differently, if they do Act differently? Of 
course, there is no superior. Right? When no one is watching 
and no one can tell you did wrong, as the Supreme Court could 
tell every lower court judge they do wrong, you may not feel as 
conscientious about complying with the same rules that used to 
apply to you, but now do not.
    Mr. Johnson of Georgia. Thank you.
    Mr. Sherman, does this make sense that judges get a 
promotion and, as a result, are subject to less oversight, less 
regulation even as they make more and more consequential, wide-
ranging decisions?
    Mr. Sherman. It certainly doesn't from an ethics 
standpoint. The justices on the Supreme Court, their decisions 
can't be appealed, their recusal decisions can't be appealed. 
Yet, they have not just a lower standard but no standard, and 
certainly no transparency with respect to how they--their 
recusal decisions.
    It has created significant concerns about the court's 
impartiality.
    Mr. Johnson of Georgia. Thank you.
    Mr. Paoletta, you gave a number of examples of ethical 
lapses perpetrated by Democratic-appointed justices of the 
Supreme Court. Yet, you sit here today opposed to the U.S. 
Supreme Court being bound by a code of ethics itself.
    Can you explain why you make the case for a code of ethics, 
but then you don't want one?
    Mr. Paoletta. The examples I used, Mr. Chair, I actually 
said they didn't violate the recusal laws.
    Mr. Johnson of Georgia. Well, let me ask this question. Are 
there any violations that a sitting Supreme Court justice can 
make that violate the code of ethics that is applicable to 
lower court judges?
    Mr. Paoletta. Again, I think Justice, Chief Justice 
Roberts--
    Mr. Johnson of Georgia. In other words, if they do 
something--
    Mr. Paoletta. Yeah. Chief Justice Roberts, I guess--
    Mr. Johnson of Georgia. --that applies to lower court 
judges--
    Mr. Paoletta. Yeah.
    Mr. Johnson of Georgia. --that they, as Supreme Court 
justices, are doing it, isn't it the same ethical lapse?
    Mr. Paoletta. Right.
    I think my concern, Mr. Chair, is that this is being done 
now. Gabe may say it has been going on for a long time. I find 
it curious that this is happening right now in the court in the 
context of the, sort of the controversy over Justice Thomas.
    Chief Justice Roberts has said that they consult the code 
of ethics. As Professor Gillers says, it is not binding. The 
code of ethics is not a binding document, it is guidance. As he 
says, it is very--
    So, they already consult. Chief Justice Roberts has said 
that every justice consults the code of ethics.
    Mr. Johnson of Georgia. You don't disagree with the fact 
that there is a need for a code of conduct for Supreme Court 
justices? You don't disagree with that, do you?
    Mr. Paoletta. So, I think it, I think the Supreme Court 
should answer that question in terms of--and I think Professor 
Gillers is right, I don't think it would be--
    Mr. Johnson of Georgia. If they fail to answer that 
question, as they have historically, does it mean that there 
should not be a code of ethics that applies to them?
    Mr. Paoletta. I think what the Supreme Court is doing now, 
in terms of their own, the justices consulting a code of ethics 
and the code of ethics is working well enough, is working fine.
    Mr. Johnson of Georgia. Okay. Got you. Thank you.
    We will next go to the gentleman from Louisiana, Mr. 
Johnson, for five minutes.
    Mr. Johnson of Louisiana. Thank you, Mr. Chair.
    Let's just be very blunt and clear about what is happening 
here today, as Mr. Paoletta just indicated. It is very clear 
that our Democrat colleagues, and many Democrats across the 
country, are continuing to bully and intimidate the Supreme 
Court now that there is a conservative majority. I mean, that 
is clear.
    Judicial ethics is obviously a subject worthy of our 
examination, but the Democrats' goal in this hearing is clearly 
to attack Justice Clarence Thomas. We have heard over and over, 
as occasioned by the recent news events. Democrat attacks on 
Justice Thomas and his wife Ginni are overly and overtly 
partisan, and clearly wrong.
    If anybody thinks that the charge that Democrats are 
attempting to bully and intimidate the court is hyperbole, just 
Google. Google the video of the comments that Mr. Paoletta 
mentioned. Just one instance, March 22, Senator Chuck Schumer.
    I am going to say it again, he threatened conservative 
justices on the highest court in this country on the steps of 
the Supreme Court while the court was hearing oral arguments in 
the June Medical Services case, Louisiana abortion case which, 
ironically, I was the trial court litigator on that case before 
it got to Congress years ago.
    This is what he said, this is Chuck Schumer, okay, leading 
Democrat in the U.S. Senate, he says,

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

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

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

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



      

                      MR. SWALWELL FOR THE RECORD

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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



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



      

                      MR. SWALWELL FOR THE RECORD

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



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

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

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

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

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

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

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



      

                       MR. JORDAN FOR THE RECORD

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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


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