[House Hearing, 117 Congress]
[From the U.S. Government Publishing Office]
UNDUE INFLUENCE: OPERATION HIGHER COURT AND POLITICKING AT SCOTUS
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTEENTH CONGRESS
SECOND SESSION
__________
THURSDAY, DECEMBER 8, 2022
__________
Serial No. 117-77
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via: http://Judiciary.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
50-357 WASHINGTON : 2023
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 & Chief of Staff
CHRISTOPHER HIXON, Minority Staff Director
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C O N T E N T S
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Thursday, December 8, 2022
Page
OPENING STATEMENTS
The Honorable Jerrold Nadler, Chair of the Committee on the
Judiciary from the State of New York........................... 2
The Honorable Jim Jordan, Ranking Member of the Committee on the
Judiciary from the State of Ohio............................... 3
The Honorable Henry C. ``Hank'' Johnson, Jr., a Member of the
Committee on the Judiciary from the State of Georia............ 5
The Honorable Darrell Issa, a Member of the Committee on the
Judiciary from the State of California......................... 6
WITNESSES
Reverend Robert Schenck, President, Dietrich Bonhoeffer Institute
Oral Testimony................................................. 8
Prepared Testimony............................................. 11
Caroline Fredrickson, Georgetown University Law Center
Oral Testimony................................................. 30
Prepared Testimony............................................. 32
Mark Paoletta, Schaerr Jaffe LLP
Oral Testimony................................................. 40
Prepared Testimony............................................. 42
Donald Sherman, Senior Vice President and Chief Counsel, Citizens
for Responsibility and Ethics in Washington
Oral Testimony................................................. 50
Prepared Testimony............................................. 52
LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING
Materials submitted by the Honorable Andy Biggs, a Member of the
Committee on the Judiciary from the State of Arizona, for the
record
A letters from Reverend Dr. Myke D. Crowder, Senior Pastor of
Christian Life Center in Layton, Utah, about Mr. Schenck..... 94
Statement from Father Frank Pavone, National Director of
Priests for Life............................................. 95
Materials submitted by the Honorable Dan Bishop, a Member of the
Committee on the Judiciary from the State of North Carolina,
for the record
An article entitled, ``Left's Attack on the Conservative
Justices Is Attempt to Delegitimize Supreme Court,'' The
Daily Signal................................................. 100
An article entitled, ``New York Times Knowingly Printed False
Smear Of Justice Thomas' Wife,'' The Federalist.............. 103
An article entitled, ``Opinion | The Hypocrisy of Supreme Court
Ethics Journalism,'' Wall Street Journal..................... 106
An article entitled, ``The New Yorker Lies Again About Clarence
Thomas And His Wife,'' The Federalist........................ 109
An article entitled, ``PAOLETTA: Leftist Tantrum Targets
Spouses In Latest Attack To Undermine SCOTUS' Legitimacy,''
Daily Caller................................................. 115
A document from the confirmation hearings of Justice Kavanaugh,
Gorsuch, and Amy Coney Barrett, submitted by the Honorable
Sheila Jackson Lee, a Member of the Committee on the Judiciary
from the State of Texas, for the record........................ 122
Materials submitted by the Honorable Henry C. ``Hank'' Johnson,
Jr., a Member of the Committee on the Judiciary from the State
of Georgia, for the record
A letter dated December 8, 2022 from Demand Justice and a
coalition of over 80 national, State, and local
organizations,............................................... 136
Statement from the Project On Government Oversight (POGO)...... 141
Statement from the NARAL Pro-Choice America.................... 151
Statement from the Interfaith Alliance Foundation.............. 154
Statement from the Alliance for Justice........................ 158
Statement from Russ Feingold, President of the American
Constitution Society......................................... 161
Statement from Gabe Roth, Executive Director of Fix the Court.. 168
Materials submitted by the Honorable Dan Bishop, a Member of the
Committee on the Judiciary from the State of North Carolina,
for the record
An article entitled, ``The Baseless `Recusal' Attack on
Clarence Thomas | Opinion,'' News Week....................... 176
An article entitled, ``Forty Years of Attacks and Slurs Against
Justice Thomas | Opinion,'' News Week........................ 180
An article entitled, ``The media's war on Clarence and Ginni
Thomas,'' Washington Examiner................................ 185
An article entitled, ``The ginned-up case against the
Thomases,'' Washington Examiner.............................. 192
An article entitled, ``Politico Launches Attack On SCOTUS
Justices' Working Spouses,'' The Federalist.................. 196
APPENDIX
An arbitration award from the American Arbitration Association,
Employment Arbitration Tribunal, Tatiana Spottiswoode v. Zia
Chishti and SATMAP Inc., Afiniti U.S., submitted by the
Honorable Jerrold Nadler, Chair of the Committee on the
Judiciary from the State of New York, for the record........... 206
UNDUE INFLUENCE: OPERATION HIGHER COURT AND POLITICKING AT SCOTUS
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Thursday, December 8, 2022
House of Representatives
Committee on the Judiciary
Washington, DC
The Committee met, pursuant to call, at 12:19 p.m., in Room
2141, Rayburn House Office Building, Hon. Jerrold Nadler [Chair
of the Committee] presiding.
Present: Representatives Nadler, Jackson Lee, Cohen,
Johnson of Georgia, Cicilline, Swalwell, Lieu, Raskin, Jayapal,
Demings, Scanlon, Garcia, McBath, Dean, Escobar, Jones, Ross,
Bush, Jordan, Issa, Buck, Gaetz, Biggs, McClintock, Steube,
Tiffany, Massie, Bishop, Fischbach, Spartz, and Fitzgerald.
Staff Present: Amy Rutkin, Staff Director and Chief of
Staff; 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
and Policy Advisor; Jacqui Kappler, Oversight Counsel; Roma
Venkateswaran, Professional Staff Member/Legislative Aide;
Cierra Fontenot, Chief Clerk; Kimia Rahbar, Staff Assistant;
Merrick Nelson, Digital Director; Jamie Simpson, Chief Counsel,
Courts, Intellectual Property, and the Internet; Evan R.
Christopher, Counsel, Courts, Intellectual Property, and the
Internet; Christopher Hixon, Minority Staff Director; David
Brewer, Minority Deputy Staff Director; Tyler Grimm, Minority
Chief Counsel for Policy and Strategy; Stephen Castor, Minority
General Counsel; Ella Yates, Minority Member Services Director;
Caroline Nabity, Minority Senior Counsel; Brian Nieves,
Minority Counsel; Kiley Bidelman, Minority Clerk; Brock Snyder,
Minority Staff Assistant; Russell Dye, Minority Communications
Director and Counsel; and Nadgey Louis-Charles, Minority Deputy
Communications Director.
Chair Nadler. The House Committee on the Judiciary will
come to order. Without objection, the Chair is authorized to
declare recesses of the Committee at any time.
We welcome everyone to this morning's hearing on ``Undue
Influence: Operation Higher Court and Politicking at SCOTUS.''
Before we begin, I'd like to remind Members that we have
established an email address and distribution list dedicated to
circulating exhibits, motions, or other materials that Members
might want to offer as part of today's hearing.
If you'd like to submit materials, please send them to the
email address that has previously been distributed to your
offices, and we will circulate the materials to Members and
staff as quickly as we can.
I will now recognize myself for an opening statement.
``Lobbying'' is a term we hear frequently in Washington,
DC. There is an entire industry built around advocacy,
outreach, and influencing policymakers and government
officials.
To limit abuse and to give the American people transparency
into the legislative process, the lobbyists who meet with
Members of Congress and their staff must carefully monitor,
track, and file disclosures regarding their interactions, and
the lawmakers themselves have extensive disclosure requirements
when they are treated to gifts, meals, and travel. The same
applies to the Executive Branch.
Those who meet with Supreme Court Justices, who have a life
term, have no similar ethical requirement. Those who lobby them
can pay for Justices' meals, vacations, and conference travel,
and do so without letting anyone else know. The Justices' own
financial reporting obligations are severely lacking.
We rarely associate the term ``lobbying'' when discussing
the Supreme Court, or influence or advocacy beyond the limits
of briefs, motions, and oral arguments, all placed on the
record.
The Supreme Court is an institution meant to be beyond both
influence and reproach, held in esteem by the general public,
and one governed by the facts and laws argued before it.
Unfortunately, as we will hear today, that might not always
be the case. The Court may, in fact, be susceptible to outside
influence and lobbying.
Recent reporting has uncovered a sophisticated covert
lobbying scheme known as Operation Higher Court that operated
behind the curtain of the Supreme Court for more than 20 years.
One of our Witnesses, Reverend Schenck, will describe how
his organization worked with donors to develop long-term
relationships with the conservative-leaning Members of the
Supreme Court to move them farther right on faith-based issues.
This quiet lobbying by what he terms ``stealth
missionaries'' generally began as encounters at events held by
the Supreme Court Historical Society and evolved to include
private dinners and even vacations with the Justices and their
wives.
These are not merely social occasions. They had an explicit
mission to encourage the Justices to resist compromise and to
take hardline stances on priority faith-based issues, issues
such as abortion, religious accommodation, and same-sex
marriage.
Reverend Schenck's organization identified conservative
Christian Justices enjoying a life term who they believed may
be sympathetic to their organization's beliefs. His supporters
then sought to use this shared faith to infiltrate the
Justices' social circles and to push them further to the right,
away from compromise, and towards more extreme legal positions.
Access to abortion care, contraception, gay marriage, in
all these areas critical to Reverend Schenck's ministry he
sought to encourage the Justices to use their faith to decide
America's laws.
In his written testimony, Reverend Schenck testified that
even he believed the Justices viewed Roe v. Wade as settled
law, but this did not stop him or his supporters from lobbying
specific Justices, urging them to undermine women's access to
basic medical care.
These efforts, whether through private group prayer
sessions, intimate dinners, or lavish trips, ultimately bore
fruit when Justice Alito delivered his decision in Dobbs,
overturning Roe v. Wade and putting women's healthcare across
the country in peril.
We are now left wondering how much of this decision
upending decades of established precedent was influenced by the
organized wealthy donors lobbying to move the conservative
Justices to the right.
To be clear, no one in this story, neither Reverend
Schenck, nor his supporters, nor the Justices of the Supreme
Court, broke the rules. That is the problem.
If the Supreme Court were subject to a Code of Ethics like
the rest of the Federal Judiciary, and like the legislative and
Executive Branches, they would need to follow basic financial
disclosure reporting, gift rules, and recusal guidelines.
They would need to ask of themselves what every employee of
Congress, of the White House, and of the Federal courts asks:
What is the nature of this friendly dinner? Is someone asking
something of me?
Many in Congress and in the media have focused on the
revelation that one of Reverend Schenck's stealth missionaries
received advance word of the Hobby Lobby decision allegedly
from Justice Alito himself.
While this breach of trust is undoubtedly a serious
incident, made even more troubling in light of the leak of the
Dobbs opinion earlier this year, it should not be the key
takeaway from Reverend Schenck's story.
The moral of the story is this. Supreme Court Justices
cannot effectively self-police their own ethics. We shouldn't
expect them to. Without established guidelines, at best we
leave Justices with the impossible and exhausting task of
evaluating ethics without a clear standard. At worst, we have
Justices accepting overtures from individuals seeking to
influence the Court with little to no transparency.
Ethics should not be a partisan issue. In 2018, this
Committee passed, by voice vote, legislation sponsored by
Congressman Issa that would have created a Code of Ethics for
the Supreme Court. Our colleague, Congressman Hank Johnson, had
since introduced similar legislation.
I sincerely hope that we can all work together to pass
legislation that would help restore America's faith in our
highest court.
I now recognize the Ranking Member of the Judiciary
Committee, the gentleman from Ohio, Mr. Jordan, for his opening
statement.
Mr. Jordan. Thank you, Mr. Chair.
March 2020, on the steps of the Supreme Court, Senator
Schumer said, quote,
I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you
have released a whirlwind, and you will pay the price. You
won't know what hit you.
April of last year, the Democrat Chair of the House Judiciary
Committee introduced legislation to add four Associate Justices
to the United States Supreme Court, to pack the Court.
May 2 of this year, the draft opinion of the Dobbs decision
was made public. The next day, May 3, the very next day,
attacks on churches, crisis pregnancy centers begin. They occur
around the country, and they continue for months. Over a
hundred churches, crisis pregnancy centers attacked since the
leak of that opinion.
Now, you know what they call all that? You know what all
that's called? Intimidation. Threats against Justices Gorsuch
and Kavanaugh, threats to pack the Court, leaking of an
opinion, and attacks on churches, a concerted effort by the
left to intimidate the highest court in our land.
I didn't even mention the lies told about Justice Kavanaugh
in 2018 during his confirmation process. I didn't mention when
Senator Joe Biden and Senate Democrats drove Justice Alito's
wife to tears during his confirmation hearing. I didn't mention
the Democrats on this Committee who have for the last year
attacked Justice Thomas and his wife.
Now, today a hearing about 8-year-old secondhand hearsay--
8-year-old secondhand hearsay from a Witness who, for 18 years,
took money from pro-life donors, $30 million, and then this
year, all of a sudden remembers just weeks after the Dobbs leak
happened, that eight years ago he heard that, at a dinner
party, Justice Alito told his guests that they would like the
Hobby Lobby decision. Just now remembers that.
Mr. Schenck wasn't there. Justice Alito said Mr. Schenck's
story is not true. The dinner guests said Mr. Schenck's story
is not true. The Supreme Court said Mr. Schenck's story is not
true. Politico said, quote, ``We spent several months
attempting to corroborate Schenck's claim but were unable to
locate anyone who heard about the decision from Alito or his
wife before its release.''
Let me just say part of that again: ``We were unable to
locate anyone who heard about the decision from Alito before
its release.''
Even The New York Times who broke the story, they said
there are gaps in Mr. Schenck's account--gaps in his account.
That's liberal speak for this story doesn't add up.
I'll tell you something that did happen. The Dobbs draft
opinion was, in fact, leaked, and it was made public on May 2,
2022. After that leak, as I've said, dozens and dozens of
churches were attacked, dozens and dozens of pro-life crisis
pregnancy centers were attacked, protests occurred at Supreme
Court Justices' homes, and there was an assassination attempt
on Justice Kavanaugh.
To date, in this Congress, not one hearing in the House
Judiciary Committee about that leak, not one hearing about the
real leak, but here we are today, at the end of the session,
having a hearing on the fake leak, from a Witness whose story
even the liberal press says, quote, ``We were unable to locate
anyone who can corroborate what he said.'' That's what we're
doing.
So, I hope maybe in the last week or two of this session of
Congress, maybe we can address, begin to look into what
happened with the Dobbs decision, how that leak took place. I
think that would be something that would merit our time and
attention.
I would also point out this, Mr. Chair, before I yield
back. We just got his testimony. We were supposed to get his
testimony the night before. We just, at 12:20, we get his
testimony for a 10 o'clock hearing. Been nice if we'd have had
that as well.
With that, I yield back.
Chair Nadler. The gentleman yields back.
I now recognize the Chair of the Subcommittee on Courts,
Intellectual Property, and the Internet, the gentleman from
Georgia, Mr. Johnson, for his opening statement.
Mr. Johnson of Georgia. Good morning, everyone.
Thank you, Chair, for holding this very important hearing
on such short notice.
I also want to thank the Witnesses, particularly Reverend
Schenck, for being here today.
I appreciate the time that you all have spent here. We were
supposed to get started at 10, but we had some things going on,
on the floor, that prevented us from meeting at that time. So,
I appreciate your forbearance.
For years I've been writing and warning about an ethical
crisis at the Supreme Court, and I've introduced legislation to
address it. Not just one, but more than one piece of
legislation. I've Chaired hearings on it in my Courts
Subcommittee, more than one hearing.
I've spoken about it repeatedly, on television, online, in
person, to news anchors, experts, and activists. I've been
raising the alarm. After almost two Congresses, here's where we
are.
The year 2022 has seen more scandals of greater magnitude
seeping out of 1 First Street than in any other single year in
recent memory.
Yet, what has been done? Unfortunately, we haven't seen any
action from the United States Supreme Court itself.
Certainly, they have every reason to want to address this
crisis. Their job approval rating is the lowest it's been in
the Court's entire history. Record numbers of Americans think
the Court is too powerful, too partisan, and far too
unaccountable.
Public opinion matters to the Court because it is the
public who must respect and abide by the Court's decisions,
especially decisions they may disagree with.
That the Court itself is unwilling to hold itself to
standards equal even to those for lower-court judges, Members
of Congress, and the Executive Branch makes matters even worse.
It took pressure from congressional appropriators just to
get the Court to admit that it was even considering an ethics
code, but that was three years ago.
I'd say it's been only silence since then, but that would
not be true. It's been scandals, it's been Federalist Society
speeches behind closed doors, it's been secret dinners with
secret donors.
The Court either cannot, or will not, do what is in its own
best interest. So, therefore, Congress must step in. The
Constitution, and the American people for that matter, have
entrusted this body to make the laws necessary to preserve the
national well-being.
A Nation whose highest court was secretly and successfully
infiltrated for over two decades by activists wining and dining
their way to the legal outcomes they want is not the hallmark
of a healthy Nation or a healthy democracy.
So, the answer here is not revolutionary. It's to impose a
written Code of Ethics that would require Justices to report
more gifts more often and ensure the Justices are not deciding
cases for their friends and family members.
My Supreme Court Ethics Recusal and Transparency Act, H.R.
7647, would do all this. My friend and colleague Senator
Sheldon Whitehouse led this effort by introducing the SCERT Act
in the Senate. Chair Nadler has passed the SCERT Act out of the
House Judiciary Committee last May. Now, the time has come for
this legislation to be passed by the Full House.
I have every expectation that what we hear today will
reinforce the already strong case for serious ethics reform at
the Supreme Court. I encourage my colleagues on both sides of
the dais to hear this testimony in the appropriate context as
only the most recent of the Court's many ethical lapses.
I hope you will be moved to stand up, do your
constitutional duty, and do what we must do to keep our Nation
healthy and strong, not only in the short term but for the next
250 years.
Again, I want to thank the Witnesses for being here today,
especially Reverend Schenck, our whistleblower, for shining a
bright light on the need for Supreme Court ethics reform.
Thank you, and I yield back.
Chair Nadler. The gentleman yields back.
I now recognize the Ranking Member of the Courts
Subcommittee, the gentleman from California, Mr. Issa, for his
opening statement.
Mr. Issa. Thank you, Mr. Chair.
I want to first associate myself with the Ranking Member's
statements. I then want to comment briefly on the statement by
the Subcommittee Chair.
I found it an amazing statement that a Member of the House
could so vigorously talk about the lack of confidence in the
honesty of a body, sitting in this body with all the rules that
we now want to add to the Court, some of which I support.
All those rules don't change the fact that on balance the
Court has been--and I suspect will continue to be--a group of
individuals, nine at the top, over 600 Article III Judges, and
countless more Article I Judges, who for the most part deserve
the public confidence of the American people that the vast
majority of them all the time endeavor to do the right and
honorable and ethical thing.
It does us no good today to look at legislation by
denigrating another body. The facts are there have been
mistakes, perhaps even lapses of judgment, and this body has,
on occasion, had to remove a Federal judge.
That doesn't change the fact that although they're human
beings, and we should do everything we can to promote greater
confidence, we gain very little by implying that this is a
bought and paid for organization or that their ethics, which
were very high in everyone's mind on the other side of the
aisle when they sided with them on an issue or two, suddenly is
fraught with unfair influence when they don't like one or two
of the last decisions.
The disparagement of Justice Alito and the allegations--
which as of today I consider completely unsupported and
uncorroborated and in doubt--should be taken for what they are:
A day late and a dollar short.
You cannot make an allegation this many years later and not
have the American people call into question the purpose and the
reason for it. It may be true, but it certainly is not timely
and does not seem to pass the test that we should have for a
whistleblower.
Having said that, with the majority changing hands, with
the Ranking Member undoubtedly being a Chair in the next
Congress, and with the possibility that we will be reviewing
this legislation once again, I want to make a commitment here
today.
I will listen to the testimony. We will continue to meet
with individuals on all sides of the issues. We will look for
the appropriate balance of self-rule by the Article III Court,
the Article III of the Constitution and the Court, and those
laws which should be passed to harmonize the left--or, sorry,
the Articles I, II, and III of our government.
I believe strongly that what is true for the Executive
Branch should be true for Congress, and whenever possible and
appropriate should be true for the Justices and the
subordinated courts.
So, with that, Mr. Chair, I want to thank you for this
conference. Even though I don't think I'm going to agree with
some of what I hear today, it is important that we listen with
open minds.
Last, I want to reiterate, Mr. Chair, for the years that
I've worked with you, because this may be our last hearing--God
knows I'm hoping it's our last hearing--it has been a pleasure
to work with you.
Chair Nadler. As far as I know, it's our last hearing this
year.
Mr. Issa. Well, then, the point, though, is that I look
forward to working with you in the new Congress. You and I
Chaired together the Subcommittee on the Courts some years ago.
I know that we can, in fact, strike the right balance, and I
hope that we all will leave here today with the commitment to
do just that.
I thank you for your leadership, and I yield back.
Chair Nadler. The gentleman yields back.
Without objection, all other opening statements will be
included in the record.
I will now introduce today's Witnesses.
Reverend Robert Schenck is the founder and President of the
Dietrich Bonhoeffer Institute, named for a Protestant leader in
Nazi Germany who resisted the rise of fascism and racism in his
home country.
Reverend Schenck holds his clergy faculties with the Mid-
Atlantic Conference of the Methodist Evangelical Church in the
USA. He received his certificate in Bible and Theology from
Buffalo School of the Bible, his diploma in Ministerial Studies
from Berean College, and his B.A., M.A., and Doctor of Ministry
from Faith Evangelical College and Seminary.
Caroline Fredrickson is a distinguished visiting professor
from practice at Georgetown University Law Center. She's a
nationally recognized expert on the Supreme Court and the U.S.
Constitution and recently served on the Presidential Commission
on the Supreme Court.
Previously she served for 10 years as President of the
American Constitution Society. Professor Fredrickson earned her
B.A. from Yale University and her J.D. from Columbia Law
School.
Mark Paoletta is a partner at Schaerr Jaffe LLP,
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.
Donald 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 the
Senate, and in a Federal agency.
Mr. Sherman owned both his undergraduate and law degree
from Georgetown University.
We welcome our distinguished Witnesses, and we thank them
for participating today.
I will begin by swearing in our Witnesses.
I ask that you please rise and raise your right hand.
Do you swear or affirm under penalty of perjury that the
testimony you're about to give is true and correct to the best
of your knowledge, information, and belief, so help you God?
Chair Nadler. You may be seated.
Let the record show that the Witnesses have answered in the
affirmative.
Please note that each of your written statements will be
entered into the record in its entirety. Accordingly, I ask
that you summarize your testimony in five minutes.
To help you stay within that time, there is a timing light
on your table. When the light switches from green to yellow,
you have one minute to conclude your testimony. When the light
turns red, it signals your five minutes have expired.
Reverend Schenck, you may begin.
TESTIMONY OF ROBERT L. SCHENCK
Mr. Schenck. Thank you, Mr. Chair, Ranking Member, Members
of the Committee. I am Reverend Robert Schenck, an ordained
evangelical minister and former lead missionary for Faith and
Action in the Nation's Capital, a religious organization active
on Capitol Hill from 1995-2018.
I am now President of the Dietrich Bonhoeffer Institute
here in Washington, named after the World War II-era German
theologian and Nazi resister who tried to protect the German
Evangelical church from Nazi cooptation before he was executed
in 1945.
Our institute supports ethically courageous leaders, like
our namesake, who address the social issues of our time.
I am here to present facts, as I know them, about Operation
Higher Court, a Christian mission that I directed as part of
Faith and Action for 20 years, to bolster conservative Supreme
Court Justices in the views they already held.
I had no qualms about complying with this Committee's
subpoena to testify, but I did not seek this public forum.
After four decades of public life, I now relish the serenity of
time with family, friends, colleagues, and my beloved books.
Neither did I instigate the news coverage surrounding this
subject. That began when a reporter overheard a former
colleague talking about prayers, we had with some of the
Justices inside the Supreme Court Building.
Before that, following stories about the leak of the Dobbs
decision this past May, The New York Times had learned about my
role in an earlier leak related to my work at the Court, but I
did not go on the record with them until much later.
That was after I received no acknowledgement of the letter
I sent to Chief Justice John Roberts in July detailing the
matter. I had written it principally out of a concern that a
Court subordinate would unfairly take the blame for the Dobbs
leak, suffering draconian punishment. Yet, I knew a Justice
would face no consequence for such a breach.
By the time I went on the record, I was convinced there was
even more significant implications, not only to the 2014 leak
but also to the facts surrounding it.
Operation Higher Court involved my recruitment of wealthy
donors as stealth missionaries who befriended Justices that
shared our conservative social and religious sensibilities. In
this way, I aimed to show these Justices that Americans
supported them and thanked God for their presence on the Court
and the opinions they rendered.
Our overarching goals were to gain insights into the
conservative Justices' thinking and to shore up their resolve
to render solid, unapologetic opinions, particularly against
abortion.
I called this our ``ministry of emboldenment.'' It was not
an attempt to change minds. Beyond convivial small talk, our
missionaries did not engage liberal members of the Court.
My recruits for Operation Higher Court were older, highly
accomplished, and independently minded. They did not take
kindly to being told where to go, what to do, or how to do it.
Successfully deploying them required their autonomy.
I did suggest tactics to cultivate affinity, but otherwise
our folks were on their own. Most of them limited their support
to regular prayers on behalf of the Justice's family, warm
personal greetings, and assurances of good will at social
functions and sending greeting cards on special occasions.
They might also host Justices or their spouses for meals at
restaurants, private clubs, or their homes, and sometimes the
Justices reciprocated.
The Hobby Lobby leak resulted from one of these
arrangements.
Throughout this ordeal, I've had to look deeply at what my
cohorts and I did at the Supreme Court. I believe we pushed the
boundaries of Christian ethics and compromised the High Court's
promise to administer equal justice.
I'm also conscious we were never admonished for the type of
work our missionaries did. Quite to the contrary. In one
instance, Justice Thomas commended me, saying something like,
Keep up what you're doing. It's making a difference.
I humbly apologize to all I failed in this regard--members
of the Court, its employees, and those at the Supreme Court
Historical Society who expected better of me.
Most of all, I beg the pardon of the folks I enlisted to
help me do work that was not always transparently honest.
Jesus Christ said of himself, ``I am the way, the truth,
and the life.'' I'm here today in the interest of truth-
telling, and I'm prepared to answer any questions the Committee
may have for me. Thank you.
[The statement of Mr. Schenck follows:]
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Chair Nadler. Thank you, Reverend Schenck.
Professor Fredrickson, you are now recognized for five
minutes.
TESTIMONY OF CAROLINE FREDRICKSON
Ms. Fredrickson. Thank you, Mr. Chair, and thank you to the
Committee for the opportunity to appear before you today in
these very important hearings.
Today we're here to discuss whether and how Congress can
address the perception and reality of ethics violations and
conflicts of interest among Supreme Court Justices.
The Constitution says very little about the courts in
Article III and critically leaves much of the detail to
Congress to fill in.
Up until this point, however, Congress has not exercised
this power to impose enforceable ethics obligations on the
Supreme Court, although it has done so for the lower Federal
courts.
For a variety of reasons, including the perception of
inappropriate political and ethical behavior, critics have
suggested that the Supreme Court too must have a code of
conduct that would mandate transparency and accountability and
require recusal in cases where there is an actual or potential
conflict of interest.
Some believe that these perceptions have led to an historic
drop in public confidence in the Supreme Court. Currently, only
16 percent of adults believe the Justices do a good or
excellent job of avoiding imposing their personal political
views in their decisions.
Currently, the Justices are the only Members of the Article
III Federal Judiciary not subject to a written code of conduct.
Since 1973, other judges have been required to adhere to a code
that was drafted and has been revised by the United States
Judicial Conference.
Beyond the symbolic value of the Court publicly stating its
commitment to ethics through a written code, having something
transparent and public promotes accountability and allows the
public to assess whether the Court is holding itself to an
appropriate standard.
Since the Court has failed to act, Congress can step in to
enact a code for the Supreme Court, either by directing the
Court to draft one, applying the current one to the Justices,
or by writing a code itself.
This Committee has chosen the first option. On May 11, the
House Judiciary Committee passed the Supreme Court Ethics,
Recusal, and Transparency Act of 2022, H.R. 7647, which would
require the Supreme Court to create a code of conduct that
would apply to Justices and their employees, ensuring that
Justices cannot pick and choose their ethical obligations
without being bound by a single uniform code.
The bill contains the following provisions among others: A
code of conduct; disclosure standards for gifts, travel, and
income received by the Justices; mandatory recusal in cases
where a party has lobbied or spent significant sums regarding a
Justice or judge's confirmation, and when a party has given
gifts, travel, and/or income to a Justice or family members
within six years of case assignment; a requirement that
Justices be fully aware of family interests that could be
significantly affected by cases before them; and a requirement
for the Court to adopt a mechanism to review a recusal motion
and post online summary explanations.
As Chair Nadler stated at the time of Committee passage,
the Supreme Court is one of our Nation's most vital
institutions, and its fidelity to equal and impartial justice,
as well as the public's faith in the integrity of the
Judiciary, are foundational to maintaining the Rule of Law.
The Brennan Center for Justice, where I am a senior fellow,
has urged passage of this law, as have many other organizations
dedicated to an independent Judiciary and impartial justice.
On May 13, 2022, President Biden signed the Courthouse
Ethics and Transparency Act. That law updated the Ethics in
Government Act of 1978 to require online posting by Federal
judges of annual financial disclosures within 90 days of the
deadline, prompted by a Wall Street Journal story detailing how
many judges had, in fact, flouted the act.
While the Courthouse Ethics Act will help enormously in
making the Federal Judiciary more transparent and accountable,
it does not go far enough, and that is why this Committee's
Bill, H.R. 7647, remains essential.
A bedrock aspect of Rule of Law in a democracy is an
independent Judiciary. Chief Justice Roberts underscored this
vital need when he wrote to the Nation's Federal judges ``to
reflect on our duty to judge without fear or favor, deciding
each matter with humility, integrity, and dispatch.'' He called
on them, quote, ``to resolve to do our best to maintain the
public's trust that we are faithfully discharging our solemn
obligation to equal justice under law.''
There would be no better way to maintain--or perhaps,
unfortunately, to regain--that public trust than embracing the
call for a code of conduct and showing the American people that
the Court is indeed dispensing equal justice under law.
Thank you, Mr. Chair.
[The statement of Ms. Fredrickson follows:]
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Chair Nadler. Thank you, Professor Fredrickson.
Mr. Paoletta, you are now recognized for five minutes.
TESTIMONY OF MARK R. PAOLETTA
Mr. Paoletta. Chair Nadler, Ranking Member Jordan, and
Members of the Committee, thank you for this opportunity to
testify.
Today's hearing is another in a concerted effort by
congressional Democrats and their media allies to undermine the
legitimacy of the Supreme Court now that the Court finally has
a working originalist majority.
You don't like the opinions the Court is handing down, such
as Dobbs and Bruen, so you are smearing the Court to encourage
the public to question its legitimacy and rulings.
This year we have seen political attacks on Chief Justice
Roberts, Justices Thomas, Barrett, Gorsuch, and now Justice
Alito. This political assault on the Court is a dangerous game,
as evidenced by the attempted assassination on Justice
Kavanaugh and the need for round-the-clock security for the
Justices.
My written statement addresses why the allegations against
Justice Alito are unfounded, why the so-called Operation Higher
Court is an absurd and classic grift, and why the Justices'
conduct does not raise Judicial ethics concerns, and certainly
not compared to the behavior of the late Justice Ruth Bader
Ginsburg.
I want to focus the rest of my oral statement on Mr.
Schenck's credibility, or lack thereof.
The Committee has convened a hearing to listen to
allegations from a man who has built his entire career on
deception and deceit. He admits to telling, in his words, a
fair number of consequential lies. In fact, Mr. Schenck has
been found by a Federal judge to have lied repeatedly under
oath.
Mr. Schenck rewrites history to suit his needs. In fact,
even today he says in his 2018 memoir, ``Costly Grace,'' he
wrote that Operation Higher Power's (sic) goal was to convert
Justices to a pro-life position.
We knew we were stuck with Members of the Federal bench. They
were appointed for life. So why not convert them while in
office?
In peddling his story today, Mr. Schenck says, according to
The New York Times--and his testimony just now--his aim was not
to change minds but rather to stiffen the resolve of the
Court's conservatives in taking uncompromising stances that
could eventually lead to the reversal of Roe.
He rewrites history now, and not his first time, that his
conduct is getting more scrutiny.
To even describe this project is to mock it. He would send
these stealth missionaries to persuade the Justices with
Biblical references, supposedly strengthening their resolve. It
has a somewhat Manchurian Candidate feel to it where covert
agents say code words to ``activate'' a Justice.
Aside from the pure dishonesty of this campaign, does
anyone actually believe that Justices Scalia, Thomas, and Alito
need any converting or bucking up of their views of Roe v. Wade
that it was wrongly decided and needed to be overturned?
Justices Thomas and Scalia had already voted to overturn
Roe in Casey in 1992. Justice Alito, when he was at the
Department of Justice, had written in 1985 that the
Constitution, quote, ``does not protect a right to an
abortion,'' years before this Schenck operation began.
Mr. Schenck preyed on the good will of well-intentioned
people who care about pro-life issues to contribute $30 million
to him. Schenck's entire project was a grift and had zero
impact on these Justices or any Justice in their votes or
opinions.
Today's hearing concerns Mr. Schenck's dubious claim that
in June 2014, during a dinner at their home, Justice Alito or
his wife disclosed to two of Mr. Schenck's donors the result
and author of the Hobby Lobby decision three weeks before it
was issued by the Court.
Of course, Mr. Schenck was not at this dinner himself but
rather claims he was told by one of the donors, the
participant, the next day.
Gayle Wright, who was at this dinner, denies that Justice
Alito or his wife ever disclosed this information. Justice
Alito also denies that he or his wife disclosed such
information. Mr. Schenck manipulates vague emails to spin a
tail, but they don't prove anything.
We are left with relying on the credibility of Mr.
Schenck's word, and he is not a reliable narrator of the truth.
He wants us to believe he has changed and put that deceptive
and lying self behind him.
While lots of people change their views on a topic, being a
deceiver and a liar is a separate matter and changing that
lying habit is harder.
Mr. Schenck is and always has been chasing the money. In
the old days he conned wealthy conservative individuals. His
new targets are progressive funders like Abigail Disney, who
provided the seed money to start his new organization several
years ago.
Based on his recent IRS filings, he's running low on
revenue, so he's decided to amp up his stories from his dark
days. We have seen this show before.
Committee Democrats and their allies argue that changes to
the Court are necessary because recent polling--just heard this
today--that show the Supreme Court's approval rating is at 40
percent.
Well, perhaps Congress should look in the mirror. What does
it say that Congress' approval rating, under Democrat control,
is only at 21 percent, with a 75 percent disapproval rating.
Perhaps Congress should make changes to itself before meddling
with the Supreme Court.
This Committee is so desperate to undermine the credibility
of the Supreme Court and its conservative Justices that it
showcases a con man with a known record of lying and deception
and zero credibility. In this process the Committee is helping
to smear an honorable Justice and a good man. These attacks
must end.
I'd be happy to answer any questions.
[The statement of Mr. Paoletta follows:]
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Chair Nadler. Thank you, Mr. Paoletta.
Mr. Sherman, you are now recognized for five minutes.
TESTIMONY OF DONALD K. SHERMAN
Mr. Sherman. Mr. Chair, Mr. Ranking Member, and Members of
the Committee, thank you for the opportunity to appear before
you to address the ongoing ethical crisis at the Supreme Court.
My organization, Citizens for Responsibility and Ethics in
Washington, is a nonpartisan, nonprofit organization committed
to ensuring ethics and transparency in government institutions.
I understand that this hearing has been called, in part, to
discuss Reverend Schenck's shocking allegations of a leak and
undue influence at the Supreme Court.
However, I want to be clear about the scope of my testimony
today. I have no information about the veracity of Reverend
Schenck's leak allegations and won't comment as to his
character.
Here is what I do know. The Supreme Court is facing a grave
threat to its legitimacy. Its opaque and unpredictable ethical
honor system has failed. The Court is sliding from scandal to
scandal with a response that suggests it is either too
oblivious to understand this danger or too arrogant to address
it.
Meanwhile, polls show public confidence in the Court at an
all-time low.
As someone who has conducted numerous government ethics and
oversight investigations, it's shocking to reflect on how few
methods of transparency and accountability apply to the Federal
courts.
Federal judges are unelected and afforded life tenure.
Supreme Court Justices have no inspector general, are not
subject to FOIA, lobbying disclosures, or visitor logs, and are
exempt from the Federal criminal conflict of interest statute.
The Court lacks basic oversight mechanisms, including those
applicable to lower court judges, and still refuses to create a
binding code of conduct.
Ethics is not a partisan issue. America is losing faith in
an institution whose credibility is its currency--and for good
reason.
Justices across the ideological spectrum have participated
in cases in which they have a financial interest or that
directly impact their spouse. Influence seekers are cozying up
to Justices at Black tie galas. Months after the Dobbs leak,
there are now allegations that a Justice leaked details of a
different opinion to wealthy activists recruited to buy access
to him.
These scandals are just the latest examples of the
Judiciary's larger systemic ethical failure. For decades,
Justices have tested the limits of the system's weak norms.
Activists and advocates, regardless of motivation or ideology,
have exploited loopholes in the Court's ethics regime to obtain
access to and potentially influence individual Justices.
That is the undisputed truth at the bottom of Reverend
Schenck's allegations, that the Alitos became friends with the
Wrights because Reverend Schenck recruited and groomed the
Wrights to do so.
Although other Justices rejected similar overtures, the
Supreme Court's nonexistent ethics regime could do nothing to
stop it.
Even more troubling, neither this body, nor the public,
know what rules or process exist to investigate Reverend
Schenck's allegations, the Dobbs leak, or other ethics issues.
The Court appears to have none, yet has chaffed against
oversight from any other branch.
Imagine, for example, if in response to a congressional
letter or IG inquiry an agency simply responded, ``Well, the
subjects of the investigation said they didn't do.'' Congress
and the public would be rightly outraged.
That's essentially what the Court's lawyer told Chairs
Whitehouse and Johnson last month. It's both obtuse and
untenable.
In my written testimony, I outline several steps that
Congress can take under the Constitution to help fix these
ethics problems and rebuild public faith in the Court. I do not
have the time to discuss all of them right now, so I will focus
on the one that's most relevant to this hearing.
The Supreme Court needs a public, binding code of conduct.
If the Court does not adopt its own, then Congress should
require the Court to develop one. That code needs to have
significant limitations on the types and amounts of gifts that
Justices are allowed to accept and on their participation in
outside events or speeches with politically aligned
organizations, among others.
The code also needs to include a clear standard for recusal
and require Justices to make those recusal determinations
public.
One of the central lessons of Operation Higher Court is how
easy it is for the wealthy and connected to buy access to our
Justices.
Reasonable people can and should question how that access
undermines the credibility of an institution tasked with
providing equal justice under law.
Although Reverend Schenck is in the proverbial hot seat
today, the arrogance and benign neglect of the Supreme Court
are the actual reasons these scandals persist.
In closing, the people have given Supreme Court Justices
the power to expand or take away our fundamental rights and
even to decide matters of life and death. In exchange, we
merely demand that members of the highest court be held to the
highest ethical standards.
If the Court continues to reject those calls, then Congress
must step in and mandate reform.
While the Supreme Court may interpret and even strike down
our laws, it is not above them.
Thank you for the opportunity to testify on this important
topic. I look forward to your questions.
[The statement of Mr. Sherman follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Chair Nadler. Thank you very much.
Let me announce to my colleagues that there's a vote on the
floor, but we'll keep going as long as we can, consonant with
giving everybody a chance to vote, and then we'll reconvene.
I thank all the Witnesses for their testimony.
We'll now proceed under the five-minute rule with
questions. I recognize myself for five minutes.
Mr. Sherman, the Executive and Legislative branches are
subject to extensive ethics rules much more the Judicial
Branch. In your opinion, have those worked? Why is the ease of
access and ability to influence the Court, compared to Congress
and the Executive Branch, so concerning?
Mr. Sherman. Thank you for the question.
While I certainly think that the Executive Branch and the
congressional ethics regimes could be strengthened, I think
they pale--the Supreme Court's ethics regime pales in
comparison.
In fact, the Supreme Court doesn't even have to meet the
ethical standards or have an ethical process consistent with
what lower court judges have to abide by.
So, it is highly problematic and quite curious why the
highest court in our land has the lowest ethical standards even
as compared to other Federal judges.
Chair Nadler. Thank you.
Professor Fredrickson, can you tell us what specific
prohibitions or guardrails you think must be included in any
code which the Justices may adopt?
Ms. Fredrickson. Well, thank you for that question.
I think the guardrails that this Committee has included are
very significant ones. I think limitations on the ability to
accept gifts, very important disclosure rules, and recusal.
Recusal has to be something that actually really implies--
applies more forcefully to the Justices, that is, there needs
to be a policing mechanism that doesn't exist right now.
Right now, the Justices are the only judges in their own
cause. They decide themselves whether to recuse, and there is
no oversight mechanism of that.
The Court should be directed, as this Committee's bill
would do, to develop its standard and a policing approach,
where there would be some review by the Court as a whole.
Chair Nadler. Let me just ask you very quickly. If the
Court didn't do that, do you think--would you think it proper
for Congress to impose a code?
Ms. Fredrickson. I think it would be far more preferable
were the Court to do it itself for many reasons, but I do
believe that Congress could also do so.
Chair Nadler. Thank you.
Reverend Schenck, what was the purpose of working to
embolden conservative Supreme Court Justices, especially when
you suspected that they already agreed with you?
Mr. Schenck. Thank you, Mr. Chair.
We're all human beings, all cut from the same cord. If
there's anything I've learned in 45 years of ordained ministry,
it's that we all suffer similarly, we all have similar
weaknesses.
When I arrived at the Supreme Court in the late 1990s, at
least my fellow conservatives and I had convinced ourselves
that the conservative members of the Court were beleaguered.
They were disfavored. They were routinely maligned and insulted
in the public arena. We thought they needed some shoring up.
We also were concerned that some of them had assured, in
their testimony during a confirmation hearing, that Roe v. Wade
was settled law and that maybe, just maybe, other forces could
work to intimidate them from coming after Roe.
So, we wanted to create a circle of people around them that
would encourage them, applaud them, literally thank God for
them, and assure them of prayerful support, and by being
present, indicate to them that there were many, many Americans
who were behind them and hoped that they would render strong,
unapologetic, unequivocal opinions that would support the
positions important to us.
Chair Nadler. Thank you.
Briefly, can you describe the major differences you faced
when conducting outreach to Members of Congress or the
Executive Branch versus the Supreme Court? How did that factor
into your organization shifting its attention to the Supreme
Court?
Mr. Schenck. Yes. Well, of course with the other branches
there were clear rules in place that limited the way one could
interact with the representatives of those branches.
This body, in particular, because we were aware that there
were limitations on gifts. For example, when you took someone
out to dinner, you had to be careful who can pay for this, and
when it came to honoraria for speaking engagements, and so
forth.
None of that applied at the Supreme Court. We knew that
there was a great deal of liberty and latitude there and made
our operation at the Judicial Branch at that level much easier.
Chair Nadler. Thank you. My time is expired.
Mr. Steube.
Mr. Steube. Thank you, Mr. Chair. I yield my time to Chair
Jordan.
Mr. Jordan. I thank the gentleman.
Mr. Schenck, did Gayle Wright really tell you that?
Mr. Schenck. Yes.
Mr. Jordan. Justice Alito said he didn't tell her. She said
she didn't tell him. You're sure she told you.
Mr. Schenck. Absolutely.
Mr. Jordan. Now, you wrote a book a couple years ago, is
that right, 2018--
Mr. Schenck. Yes.
Mr. Jordan. --you wrote a book?
Mr. Schenck. Yes.
Mr. Jordan. I want to read a section from that book. It's
the section where you relate you and your family were--attended
oral arguments at the Court, you were there in the courtroom,
and that directly involved your brother Paul, also a reverend.
I just want to read this section. You said,
With a single wrap of the gavel, Chief Justice William
Rehnquist announced, ``We'll hear argument first this morning
in No. 95-1065, Reverend Paul Schenck and Dwight Saunders v.
Pro-Choice Network of Western New York.'' Paul and I winked at
each other, knowing we had made history with that ``Reverend''
in his name. It had been a minor victory when we persuaded the
Court that ``Reverend'' should remain before Paul's name, even
though we had been told repeatedly that legal briefs never
included such titles.
You thought it was important that, obviously, based on what
you said, that you thought it was important that the title
``Reverend'' be in front of Paul's name. Is that right?
Mr. Schenck. Correct.
Mr. Jordan. Why was that?
Mr. Schenck. Because we saw it as a religious liberty
matter and that this would make it clear that it fit in that
category.
Mr. Jordan. Did Chief Justice Rehnquist really say that the
way I just read it from your book?
Mr. Schenck. I can't say that I remember that clearly.
Mr. Jordan. Well, you're pretty darn specific here. You've
got the number, Case No. 95-1065. The very next word says
``Reverend'' Paul Schenck. You made it a big deal, about it's
the first time it's ever happened.
I'm just asking, did it really happen?
Mr. Schenck. I wish I could tell--I would have to go back
and review that.
Mr. Jordan. So, it may not have?
Mr. Schenck. Possibly not.
Mr. Jordan. Why do you say possibly not? You were emphatic
in your book.
Mr. Schenck. I would have to go back and--
Mr. Jordan. Well, we did go back. We did go back. I got the
transcript right here.
Proceedings, 10:05 a.m., Chief Justice Rehnquist: ``We'll hear
argument first this morning in No. 95-1065, Paul Schenck and
Dwight Saunders v. Pro-Choice Network of Western New York.
Did you hear it?
Mr. Schenck. I did.
Mr. Jordan. Was there a word missing?
Mr. Schenck. Title, ``Reverend.''
Mr. Jordan. Yeah. Wasn't in there.
In your book, you said it was a big deal, so much so, that
you winked at your brother.
Did you wink at your brother?
Mr. Schenck. Yes.
Mr. Jordan. What did you wink for if it wasn't in the
title?
Mr. Schenck. Well, it was our case.
Mr. Jordan. That's not--you said you winked because they
included ``Reverend'' in the title and the transcript says Mr.
Rehnquist didn't.
Mr. Schenck. Perhaps not.
Mr. Jordan. Perhaps? Did the court reporter get it wrong?
Did he say it and court reporter get it wrong?
Mr. Schenck. Well, then--
Mr. Jordan. Well, we got the audio too. I want to play that
for everyone to hear.
[Audio recording played.]
Mr. Jordan. Reverend, did you hear that?
Mr. Schenck. I did.
Mr. Jordan. Was there a word missing that's different from
what you put in your book?
Mr. Schenck. A title, yes.
Mr. Jordan. What was that title?
Mr. Schenck. Reverend.
Mr. Jordan. ``Reverend'' was not there, right?
Did you wink at your brother?
Mr. Schenck. I think I did. In fact, I think I actually--
Mr. Jordan. Oh, wow.
Mr. Schenck. --hooked him.
Mr. Jordan. So, now you got more details. You got the key
detail wrong, what you were writing about in your book, but now
you remember an additional detail. You not only winked, but you
also elbowed your brother.
Mr. Schenck. I think I did.
Mr. Jordan. Even though the reason for the wink in your
writing was the fact that ``Reverend'' was used in the title,
something that never had been done. It wasn't used. We're
supposed to believe you today. We're supposed to take your word
over Justice Alito's word. We're supposed to take your word
over a lady who gave you dollars, donated to your cause, Ms.
Gayle Wright.
You're disparaging her name, Justice Alito's name, and the
Court, and you have this, which obviously didn't happen. We got
the transcript; we got the audio. You made it a big deal in
your book.
One thing I've learned: People who mislead folks on small
things mislead them on big things. You know what? You can lie
in a book, it's not a crime. You can lie to The New York Times,
that's not a crime.
When you come in front of Congress and you say things that
are not true, you're not allowed to do that. You're not
supposed to do that. We've seen it. You're not supposed to do
that.
I yield back.
Mr. Johnson of Georgia. [Presiding.] The gentleman yields
back. At this time the time has expired, and so I will
therefore recognize myself for five minutes of questions.
Reverend Schenck, I've been in Congress now for 16 years,
and never have I witnessed the kind of savage attack that has
been levied against you today. I've never seen that or heard
that happen before.
Mr. Jordan. Will the gentleman yield?
Mr. Johnson of Georgia. No, I won't.
I'd like to know, sir, I mean, do you have any response to
anything that Attorney Paoletta said about you?
Mr. Schenck. Yes. Couple of things. One is, I think he
alluded to finding that I had made untruthful statements under
oath, something like that.
In those days, I was a street activist, and these were--
there were a number of criminal proceedings. At that time, we
felt we were not--those of us who were activists--were not
obligated to incriminate ourselves. It was up to others to
prove their accusations against us.
I will say that, activists, like politicians, become
hyperbolic. We use inflammatory language for effect.
At this season of my life, when the most important things
to me are the love of my family, the hugs of my new grandchild,
and really, probably the last third of my professional career--
and maybe life--what matters to me is telling the truth, is
speaking candidly.
Mr. Johnson of Georgia. Let me--
Mr. Schenck. That's what I've come here to do.
Mr. Johnson of Georgia. Thank you for that.
Let me just say that having looked through your background,
having seen that you were born to a father who was Jewish, a
mother who was Catholic, she converted to Judaism, but then as
you got older, you converted to Christianity, took flack for it
from the family, which was--later, they embraced you. You were
a man who has stood on principle, even though I have disagreed
with many of the positions that you have taken over the years.
I don't think it can be said that you are a gentleman who lacks
principle and character, and does what you believe and is
truthful and honest. So, I want to thank you for being here
today.
I want to ask you, what was the relationship between the
Supreme Court Historical Society and your efforts with
influencing Justices at the Supreme Court or at least
bolstering them in their thinking?
Mr. Schenck. Mr. Chair, in 1999, my organization acquired a
piece of property across the street from the Supreme Court
which we thought would give us advantage in accessing the
Court, and it did. At that time I discovered the existence of
the Supreme Court Historical Society, in particular, that it
sponsored an annual dinner inside the Court hosted by the Chief
Justice, often attended by most of the other Associate
Justices, and that one could join the Society and enjoy access
to those events, which I did. I joined the Society, and it
became an entry point for our work.
Mr. Johnson of Georgia. You actually had donors to raise
money for the Supreme Court Historical Society. Is that
correct?
Mr. Schenck. Yes. I encouraged our people to contribute
generously.
Mr. Johnson of Georgia. Do you have any idea how much money
you were able to raise for the Supreme Court Historical Society
and what that money may have been used for?
Mr. Schenck. I never actually added it up, but it was
considerable. It was certainly--
Mr. Johnson of Georgia. Over $1 million?
Mr. Schenck. It could have been.
Mr. Johnson of Georgia. Professor Fredrickson, can you tell
me how my bill, the Supreme Court Ethics Recusal and
Transparency Act, would potentially prevent or at least root
out influence campaigns like the one that Reverend Schenck has
described?
Ms. Fredrickson. Yes. Thank you, Mr. Johnson. Thank you for
your very fine work on this legislation.
A couple of obvious ways. The disclosure standards for
gifts, travel, and income would go to the private dinners and
the travel that was described by Reverend Schenck, a mandatory
recusal with a policing mechanism for the Court itself to
review recusal, motions. I think those things would go very
much, both to potentially the reality of conflicts of interest,
but certainly the perception that so many people have that
there are ethics problems on the Supreme Court.
Mr. Johnson of Georgia. Thank you. My time has expired.
I now recognize the gentleman from Arizona, Representative
Biggs, for five minutes.
Mr. Biggs. Thank you, Mr. Chair.
Mr. Schenck, I have to say, there is something in the law
that we call hearsay, and hearsay is inherently unreliable, and
we don't allow that in. In your case, you've got hearsay built
upon hearsay built upon hearsay. It's inherently unreliable.
It's incredible. It's unbelievable. So, we don't let that in.
You would have to have three exceptions to the hearsay rule to
get that in. You've got none. You've got none.
At the law we call it hearsay, you know what we call it in
the world away from law? Gossip, innuendo, deceit, and I have
to sell you, it is one of the most pernicious performances I've
seen publicly in a long time.
I find it interesting, Mr. Chair, we're having this hearing
given the Committee's lack--the Democrats' lack of reaction to
the leak of the draft in the Dobbs decision. You held zero
hearings on it. An assassination threat was made. You slow-
walked security legislation for Supreme Court Justices. Today,
we're here based on a guy who's telling us a story that someone
allegedly told him about somebody allegedly told him. That is a
what's pernicious here.
Politico, it's not a friend of Justice Alito. They spent
months trying to corroborate your story. They said, quote,
``they're unable to locate anyone who heard about the decision
directly from either Alito or his wife before its release at
the end of June 2014,'' end of quote.
We're having a hearing today on this topic when the
majority have ignored real threats to the Supreme Court over
the past year.
For example, following the leak of the draft Dobbs
decision, daily protests outside the home of Supreme Court
Justices were encountered trying to sway or influence the Dobbs
decision; but we didn't have a hearing on that.
In June, Nicolas Roske was arrested outside the home of
Justice Brett Kavanaugh after he admitted that he came from
California to Maryland to assassinate Justice Kavanaugh. We
didn't have a hearing on that, but we're having a hearing today
based on specious defamatory statements.
Mr. Paoletta, thanks for being here today.
You saw the coverage of the constant protests at the
Supreme Court earlier, I believe.
Mr. Paoletta. Yes.
Mr. Biggs. What were those protests designed to accomplish
do you think?
Mr. Paoletta. The protests, beginning in part with Senator
Schumer standing on the steps of the Supreme Court, and in my
view, physically threatening Justices Kavanaugh and Gorsuch and
telling them that if they rule a certain way, they will pay the
consequence, they won't know what hit them.
So, we also have to remember it went back to Senator
Schumer making that threat on the steps of the Supreme Court
about what kind of case? An abortion case.
All of these threats, all of these protests are designed to
intimidate the Justices, but even more so, fear for their life.
I mean, intimidate them as Justices, but fear for their life,
and that is why Justices have around-the-clock security now,
which I think is unheard of. It's all caused, right--and let me
put it this way. I don't think they're protesting the liberal
Justices. Okay. These are all targeted at the conservative
Justices and have put their life in danger, all of them.
Mr. Biggs. The design is to have a long-term impact on the
Court and on decisions that come out of the Court.
You might be aware that the Chair of this Committee, Chair
Nadler, and several other Members of this Committee are
supporting legislation to expand the number of Justices on the
Supreme Court. A Member of this Committee tweeted out: The
Supreme Court expansion is infrastructure.
Why do you think they want to expand the size of the
Supreme Court?
Mr. Paoletta. For many, many years, the Supreme Court has
basically been a super legislature putting in place sort of
policies, and, essentially, laws that they couldn't get enacted
through the democratic process.
So, they want to return to those days and increase the
court size so that they can get these policies adopted. It's a
terrible development in undermining the legitimacy of the
Supreme Court.
Mr. Biggs. You have a Democrat who tweeted out: Republicans
stole two Supreme Court seats to have a far-right super
majority, and now the Court is ready to strip away our
fundamental rights. Expand the Court before it's too late.
That corroborates what your premises.
I just tell you, I'll close, Mr. Sherman, you asked what
would happen if agencies didn't respond to letters from Members
of Congress. I send 75-100 letters a year. I don't get any
responses from this Administration.
Mr. Cicilline. [Presiding.] The time for the gentleman has
expired.
I now recognize myself for five minutes.
I want to begin by thanking the Witnesses for their
testimony today.
The Supreme Court, the highest court in our Nation, no
longer has the confidence of most Americans. This institution,
a historical symbol of integrity and fairness that is meant to
be free from politicization, now seems as politicized as
Congress itself, and it's no wonder why.
Report after report has detailed that some Justices of our
highest court are acting in defiance of the principles of
ethics they're meant to uphold. They've accepted tens of
thousands of dollars in travel and lodging benefits that don't
get reported. They refuse to recuse themselves in cases where
they clearly have a conflict of interest. Most recently, we've
learned of a Justice potentially catering to a special interest
group and giving them advance notice of a pending decision.
Every Member of Congress, and Federal judges throughout our
system, except those on the Supreme Court, are subject to a
Code of Ethics to govern this kind of behavior. It's
bewildering that the Supreme Court Justices are not, and we're
clearly seeing the results of that. We have trusted them to
police themselves, and clearly, they have failed.
Fortunately, we know how to fix this. We can and must
restore faith in our highest court, and we can start by passing
the Supreme Court Ethics and Transparency Act, an important
court reform package that would do just that.
Now, I want to begin my questions, Reverend Schenck, with
you. This campaign which I think to most Americans is just
shocking that there was actually a sophisticated effort to
influence either by bucking up or strengthening the views or
even changing the minds of Justices of the Supreme Court on
important issues. This is shocking to me.
In addition to that work, was there also travel with
supporters of the higher court campaign with Justices of the
Supreme Court, both through vacation destinations, vacation
homes? Can you give some examples of some trips the Justices
took, if any, with supporters of Faith in Action?
Mr. Schenck. Yes, Mr. Chair. I was aware that Justices
Alito and Scalia had visited the home--the second or third
home--I'm not sure how they counted it--of the Wrights, Don and
Gayle Wright in Jackson Hole, Wyoming. They had both been out
there to visit. I was not aware of any other in particular.
Mr. Cicilline. Were you aware on those trips whether or not
the Justices traveled with their spouses?
Mr. Schenck. I don't recall, Mr. Chair. Maybe--and I'll
just correct myself. I was aware of one trip that Justice
Scalia took with Mr. Don Wright that involved hunting. I think
they were quail hunting somewhere, perhaps even in South
America. I'm not sure.
Mr. Cicilline. Thank you.
Mr. Sherman, would you speak to this question? There has
been some public reporting about this as well. Currently, are
Supreme Court Justices permitted to take trips, private trips
with individuals valued at--can be valued at thousands of
dollars without disclosing that benefit?
Mr. Sherman. They are. There is a gift ban statute, but the
regulations that apply to lower court judges do not apply--or
the Justices of the Supreme Court are not bound by that. So,
essentially what you have is Justices accepting gifts based on
whether they choose to accept them or not. Everybody loves free
trips. Certainly, at the highest court in our land, we should
have a transparent process for the Justices to resolve those
conflicts of interest.
Mr. Cicilline. Are there any limitations in the existing
law or ethics provisions that limit what happens during those
free trips that Justices may take?
Mr. Sherman. No.
Mr. Cicilline. Can you describe for the American people,
what is the consequence of permitting free gifts of any value
as it relates to travel or other gifts? What is the potential
danger? Why does it matter?
Mr. Sherman. So, obviously, there's the potential danger of
influence in the specter of wealthy activists using their money
to get the Justices to change their mind or decide in their
favor. More importantly, an independent and impartial Judiciary
is what ensures that the law protects regular folks, like all
the constituents and holds the powerful accountable.
Mr. Cicilline. So, if we were--I have legislation that, in
fact, would require the disclosure and set some limitations on
travel that can be given to Supreme Court Justices.
Would that address this issue appropriately?
Mr. Sherman. While I certainly would hope that the Court
implemented a Code of Conduct, that would help address the
issue, yes.
Mr. Cicilline. If the Court fails to do so.
Mr. Sherman. Yes.
Mr. Cicilline. Thank you.
We now have two votes on the House floor, so we will recess
now and return immediately after the second vote.
The Committee stands in recess.
[Recess.]
Mr. Johnson of Georgia. [Presiding.] The Committee will
come to order. I will now recognize Mr. McClintock, the
gentleman from California, for five minutes.
Mr. McClintock. Thank you.
Mr. Chair, this hearing is absolutely astonishing to me.
Your star Witness is a pathetic grifter, a documented liar, and
he comes here to tell us that in 2014, Justice Alito told a
dinner companion how the Supreme Court would rule in the Hobby
Lobby case. His source vehemently denies it. The Justice
vehemently denies it. There are no contemporaneous notes or
recordings, and not a single newspaper can corroborate this,
although they desperately tried.
So, the testimony is impeached by the very sources the
drifter claims to have had, and there's nothing, nothing, to
support his claims. He didn't think to share it publicly until
eight years later when the left began a concerted effort to
smear Justice Alito for the Dobbs decision, and to delegitimize
the Court as an institution because they intend to pack it.
Meanwhile, the Judiciary Committee, the Judiciary
Committee, has no interest in some fundamental questions, like
who leaked the draft of the Dobbs decision? Or why isn't the
Justice Department enforcing the law to protect Supreme Court
Justices from intimidation at their own homes? Or did the
Justice Department really interfere in the 2016 and 2020
presidential elections? Those are important questions.
This is a theatre of the absurd, and it's how the left
operates, outrageous and slanderous claims, and when they're
thoroughly debunked, they just move on to the next target.
Mr. Chair, I am sincerely embarrassed for you. I'm
sincerely embarrassed for your colleagues. This hearing puts a
punctuation mark on the whole sad proceedings of this
Committee.
My problem in asking questions is simple facts are so
damning against the Democrats as to make any further commentary
pointless. So, res ipsa loquitur, the thing speaks for itself.
I'll simply ask Mr. Paoletta for any thoughts that he has
in my remaining time.
Mr. Paoletta. Mr. McClintock, thanks for the opportunity.
It's just, as I said in my opening statement, we're left
with relying on the credibility of Mr. Schenck's word. I
noticed because, of course, he didn't turn his testimony in
until 10 minutes before the hearing, when I think the rest of
us did the night before by 6 o'clock. So, we couldn't cross-
check it before the hearing. He says--there was an interesting
story line in one of his comments. I pulled up a Christian News
wire story from I think the day of the Hobby Lobby--what was--
of the decision. He's referencing the fact that on the day of
the oral argument, he claims in here that--I'll read it.
On the day their case was argued before the Justices, Reverend
Schenck led the Greens and the Hahn family, owners of Conestoga
Wood Specialties, for an unprecedented prayer service in the
Supreme Court dining room just before they all entered the
courtroom.
I thought that was impossible to be having a prayer service
on a day of oral argument in the dining room. Okay. The Supreme
Court is a pretty locked-down place in general. When they're
doing oral arguments, it's very locked down for things like
that.
If you look at his testimony today, he says, ``On March 25,
I attended the oral argument in the Hobby Lobby case, having
obtained a reserved seat from the Marshal's office.'' Earlier
that day, I convened a prayer service in the Supreme Court's
cafeteria dining area, which attorneys for both Hobby Lobby had
attended.
So, he's changed it completely from this behind-the-scenes
sort of access of going into the dining room of the Supreme
Court to the cafeteria, which is literally open to the public
when you're there. So, again, this is, just--there's so many of
these things.
Again, going back to what Congressman Jordan had brought up
about this, his book, which I saw this weekend, about how he
was so happy that Chief Justice Rehnquist had said Reverend
Paul Schenck as he called up the case, and it's a complete lie.
Now, if you look at Mr. Schenck's book, he had to have
looked back at that because it has the caption of the case.
Like, he had to go back and look at what was actually said to
write his book. So, back in 2018 when this book came out, he
was looking--and he literally invented that scene, but he put
that word in there for Chief Justice Rehnquist to say, so he
could support his story line that somehow he had overcome all
these naysayers and gotten the Court to put Reverend in his
name.
So, that is why he's not a reliable, narrator of the truth
as I say.
Mr. McClintock. Al contraire. He's the Democrats' star
Witness in this. It's upon his ridiculous testimony they base
this entire hearing, their last hearing of this session. I
think it's a reflection on them more than anything. As I said,
I think it is a fitting way to end a pathetic session of this
Congress and the work of this Judiciary Committee.
With that, I yield back.
Mr. Johnson of Georgia. The gentleman yields back.
I will now recognize the gentlelady from the State of
Washington, Representative Jayapal for five minutes.
Ms. Jayapal. Thank you, Mr. Chair.
Thank you all very much for being with us today.
Blatant moral and ethical violations in the Supreme Court,
the highest court in the land, have eroded America's trust in
our system. From Justice Clarence Thomas's failure to recuse
himself after his wife's questionable January 6th-related
activities to lavish private dinners and trips paid for by
wealthy donors, the Supreme Court is long overdue for a more
ethical Code of Conduct.
I wanted to focus on how wealthy donors cozy up to Justices
and influence SCOTUS decisions.
Reverend Schenck, it's been reported that you trained your
stealth missionaries to get to know the conservative Justices
at a personal level and support their conservative viewpoints
through faith.
Did you instruct them to talk to Justices in a specific
way? What were they trained to say or not say?
Mr. Schenck. Thank you, Representative Jayapal.
Yes, I did. We had orientations. We told them what would be
appropriate, even how to address the Justices, and then to find
areas of commonality that might establish a rapport. That
proved to be very effective.
Ms. Jayapal. Were these Justices aware that you were
seeking to influence or embolden their decisionmaking on the
bench, or at least encourage or support more hard-line or
conservative-leaning positions?
Mr. Schenck. I'm not certainly how to answer that because I
didn't--I wasn't inside their thinking. Over time, I felt that
our presence there became more welcome, and that was just
registered by the amount of invitations that they extended to
our stealth missionaries for conversation and even visits
inside chambers.
Ms. Jayapal. Can you talk about how the messaging,
particularly prayers in the company of conservative Justices,
were shaped as political?
Mr. Schenck. Yes. I was trained that prayer should always
end with an uncertainty and a submission to the will of God,
whatever that may be. On the other hand, there's another kind
of prayer that telegraphs a different kind of message. When you
pray for a specific outcome, it is not necessarily conversation
with the Divine anymore; it's a conversation between two
persons and of a privileged nature because very few people will
interrupt a prayer. So, you can get through the cases you're
making in a very effective way.
Ms. Jayapal. So, a wealthy interest group regularly wines
and dines the Supreme Court Justices for the specific purpose
of swaying opinions on landmark cases that will affect millions
of Americans.
Members of Congress have already requested that the Supreme
Court launch an inquiry into these claims. Has the Supreme
Court demonstrated any openness to an investigation, Mr.
Sherman?
Mr. Sherman. Not that I'm aware of. The Court has no
transparent process for either receiving or investigating
complaints or allegations of ethical misconduct, which we have
seen both with respect to the Dobbs leak and the allegations
made by Reverend Schenck here, which, again, pales in
comparison to the transparency and accountability measures,
both in the Executive Branch and in Congress.
Ms. Jayapal. Professor Fredrickson, why is explicit
partisanship concerning when it's demonstrated by Members of
the Judiciary? Why would we generally want Justices to appear
nonpartisan? Is it the same as appearing impartial? I think
this is important for the whole country to understand.
Ms. Fredrickson. Both of those are critical elements for
the Judiciary, to be nonpartisan and to be impartial.
Obviously, unlike Members of Congress and the President, they
are not elected. They serve under good behavior, which is
generally been understood to be for life. It means that we
really do need to have a belief in their honesty and their
adherence to Rule of Law. Ultimately, when it comes down to it,
we have to remember what Alexander Hamilton said in Federalist
78, which is that the Judiciary is the least dangerous branch
because it has neither purse nor sword, unlike the Executive or
the Congress, and that its power is in the public confidence
and the faith in their adherence to Rule of Law. If they start
to lose the public confidence, then we lose our Rule of Law.
Ms. Jayapal. In fact, that's already happened. We've seen a
historic drop in public confidence. If the American people
can't trust the independence of the Judiciary, of the
decisions, the very foundations of our democracy are
threatened.
It's why I introduced H.R. 7706, the Judicial Ethics and
Anticorruption Act, which bans Federal judges from owning
conflicted assets and a number of other things.
I know my time has expired, so, Mr. Chair, I yield back.
Mr. Johnson of Georgia. Thank you.
Next, the gentleman from Wisconsin, Mr. Fitzgerald, is
recognized for five minutes.
Mr. Fitzgerald. Thank you, Mr. Chair.
To Mr. Paoletta, as many of my colleagues have noted,
following the leak in the decision in the Dobbs case there were
several instances of fanatics professing anti-life views
targeting, destroying, and vandalizing numerous pro-life
facilities and groups to further their political cause.
I led a letter to Attorney General Garland with my
colleagues from Wisconsin regarding a specific case of arson
that you may have heard of against a pro-life office in
Madison, Wisconsin. Six months later, there still has been no
arrest in that case. Many people, including the head of
Wisconsin Family Action, are rightfully questioning whether
State and Federal law enforcement are not pursuing this case
simply because it was against a pro-life facility.
I share the frustrations with the lack of justice in this
case. So, could you answer for me: What can Congress do to shed
more light on these attacks and ensure that law enforcement is
doing their job diligently in these specific instances?
Mr. Paoletta. Congressman, I think it's very troubling that
the Department of Justice has done nothing in response to all
these attacks. It's really--these attacks have been despicable,
and the fact that the Department of Justice I don't think has
done anything in response to them is truly troubling. I think
Congress should have looked into it long ago. Perhaps, in the
new Congress investigating the Department of Justice for why
they didn't look into these attacks is a good use of time and
accountability. If you want to talk about accountability and
transparency, let's see why the Department of Justice hasn't
done anything to protect these tremendous organizations that
help women who are in trouble.
You see Democrats in Congress belittling these
organizations. I think I saw Senator Warren saying they were
con organizations or something like that, really just offensive
comments.
So, that's what I would hope Congress would do in the next
Congress.
Mr. Fitzgerald. Very good.
Just to follow up. The Dobbs draft opinion was leaked
months ago. Despite an investigation, as we know, the leaker
still has not been identified. We are circulating an
accountability Act that would specifically focus on leaks,
which would make it a crime to leak any of this confidential
information from the Supreme Court.
Do you see a path to ever finding this specific person for
the leak? Then, ultimately do you think that we can hold them
accountable?
I think the frustration that many Members of Congress are
expressing at this point is that there aren't many secrets in
this town. For some reason, this individual has certainly been
sheltered, and there is absolutely, I think, evidence that
there are specific people that know who this purpose is, and
why they haven't been identified at this point is beyond me.
Mr. Paoletta. It was, again, a despicable act, whoever
leaked that opinion, in my view, trying to bring down the
Supreme Court and the integrity and the working relationships
among the Justices in terms of doing their work.
So, I join you. I hope the leaker is found and held
accountable. We can speculate all day as to who did it and how
they did it. I assume that this person was careful and thought
it through before they did it. I'm not sure we'll ever find
that person in the near-term. I hope we do, but it was a
despicable act.
Mr. Fitzgerald. Very good.
I have one more question for you. During the Trump
Administration, Congressional Democrats and leftist
organizations used dark-money allegations to criticize the
Trump Administration and the Senate's success in confirming
conservative judicial nominees. However, Democrats conveniently
ignored their role in using dark money groups. Democrats'
active role in lobbying against judicial nominees can be traced
back to the partisan campaign led by then Senate Judiciary
Chair, Joe Biden, against the Reagan Supreme Court nominee,
Judge Bork, that we're all familiar with.
More recently, Demand Justice reportedly sought to spend $5
million to try and block the confirmation of Brett Kavanaugh.
Additionally, Amalgamated Charitable Foundation is a
501(c)(3) and a donor advise fund, which is basically a
charitable savings account for donors. It was created by the
labor unions and Amalgamated Bank to support left-wing causes.
My question would be, just to kind of sum this up, would
be, is there a way of tracing this dark money? How prevalent do
you think it is in the system? As far as you can tell, why do
you think that there's this double standard that exists between
any times you talk about dark money on one side versus another?
Mr. Paoletta. Look, the First Amendment is important and
for people to be able to contribute and have the anonymity
protected and to have, you know, the free flow of exchange and
sort of efficacy. There is a wicked double standard that the
Democrats--I think when you look at the amount of money that is
spent on either side, I think it's Arabella Advisors and all of
their tentacles far exceed anything that the conservatives or--
I don't know that for sure, but I think that's right. So, it's
a double standard. You know, I'm not--
Mr. Johnson of Georgia. The gentleman's time has expired.
If you would just wrap up.
Mr. Paoletta. It's a double standard.
Mr. Johnson of Georgia. Thank you.
Mr. Fitzgerald. Thank you, Mr. Chair.
Mr. Johnson of Georgia. We'll now go to the gentleman from
California, Representative Swalwell for five minutes.
Mr. Swalwell. I thank the Chair.
At the beginning of the hearing, Mr. Jordan alluded to
threats that were made toward Judges Kavanaugh, Gorsuch, and
others, and I want to make it clear that I, and I believe most
of my colleagues have denounced any threats of violence that
have been made to any judges, to any public officials. That's
not how we conduct ourselves in this country. We enact the will
of the people through voting, not through violence.
I do want to ask the Ranking Member, because he wants to
have this conversation. Will he, after tweeting this morning a
tweet that said: ``The left attacks Justices Thomas and Alito
because they're standing up for the Rule of Law, the
Constitution, and freedom.'' Will the Ranking Member denounce
what the former President said last week when he said: ``A
massive fraud of this type and magnitude allows for the
termination of all rules, regulations, and articles, even those
found in the Constitution.''
So, I will wait after my time is up to see if the Ranking
Member endorses Donald Trump's call to terminate the
Constitution, because the Ranking Member seems to have a high
interest in protecting it, or if he will continue to be silent,
and I think we should all conclude that his silence is
complicity.
Since we're on the topic of denouncing violence, will the
Ranking Member also denounce the tweet that he put out praising
Kanye West. He tweeted: Kanye. Elon. Trump. Kanye went on after
that tweet, of course, to say that he's going to declare a war
on Jews, and, also, that he would go on to praise Hitler.
So, I will wait again for the Ranking Member. Does he stand
with Kanye and his hatred of Jews and love for Adolf Hitler, or
will he denounce it? Again, we will wait to see because the
Ranking Member has a lot of opinions, Mr. Jordan, about what
others should be denouncing. So, we will wait to see what you
can do.
Moving on to Mr. Schenck. Mr. Schenck, thank you for coming
forward. Your testimony is important as Americans wonder if the
Supreme Court can be independent and credible.
I have to ask you for the sake of your own credibility, are
you being paid by anyone for your testimony today?
Mr. Schenck. No.
Mr. Swalwell. Have you been paid by anyone for this story
that was printed in The New York Times about what you heard
eight years ago?
Mr. Schenck. No, Congressman.
Mr. Swalwell. In fact, have you received threats, including
death threats, because of what you've said?
Mr. Schenck. I don't know if they rise to death threats.
They have certainly been quite menacing. Yes, I have received
those kinds of threats. It's been very costly for me, both for
the current organization that I'm leading, for me personally,
and most especially for the duress on my family.
Mr. Swalwell. Well, I'm sorry to hear that as someone who
receives the same types of threats and thinks about their
family first.
I have to ask then, if you're not being paid for coming
forward with this information, and you are suffering threats to
yourself and your family and your personal finances, why did
you come?
Mr. Schenck. For three reasons, Congressman. First, I felt
it was a moral obligation. Second, in this season of my life in
ministry, I made a new resolution that truth telling should be
at the core of everything that I do. Finally, I think it's in
the best interests of the country. I think it's in the best
interests of the Court where I spent 20 years, and still have
great respect for the institution and almost venerated in a
sense. Its integrity is critical to its success and role in our
democracy.
So, those are the three principal reasons I'm here. There
are more, but they haven't come without cost.
Mr. Swalwell. Thank you, Reverend. God bless you and your
family as you come forward with the truth.
Mr. Chair, I yield back. I will sit here to see if Jim
Jordan will address Donald Trump's threats to the Constitution
or if Mr. Jordan will just simply look the other way.
Mr. Johnson of Georgia. Mr. Swalwell, would you yield your
balance to the gentleman--
Mr. Swalwell. I yield back, Mr. Chair.
Mr. Johnson of Georgia. --Mr. Jordan?
I think, Mr. Jordan, are you--okay. Mr. Jordan wanted a
couple of seconds to answer.
Mr. Swalwell. Yes. Will Mr. Jordan denounce President
Trump's termination of the Constitution?
Mr. Jordan. President Trump has clarified his comments
regarding the Constitution. He put out another post, I think a
day or so later, maybe even the next day. I can't recall.
Everyone knows President Trump, there's no way this guy is
anti-Semitic. This guy was the most pro-Israel President in
history, put the embassy back in Jerusalem. Abraham--the most
pro-Israel President we've ever had, did more in foreign policy
in the Middle East than any President we've ever had, so--
Mr. Swalwell. Do you denounce your tweet praising Kanye
West?
Mr. Jordan. That tweet was not our account. That tweet--
Mr. Johnson of Georgia. The gentleman's time has expired.
Mr. Jordan. No. It's my time.
Mr. Johnson of Georgia. He yielded the balance of his time.
Mr. Jordan. Well, he's over time. I haven't used my time
yet.
Mr. Johnson of Georgia. No, you have not.
Mr. Jordan. Well, I'll let Mr. Gaetz and Mr. Bishop, and
then I'll come back. I have a lot of questions for these
Witnesses.
Mr. Johnson of Georgia. The Chair will recognize the
gentleman from Florida, Mr. Gaetz, for five minutes.
Mr. Gaetz. Thank you, Mr. Chair.
Let me start by saying it used to be the case on Palm Beach
Island that at the private clubs, no Blacks or Jews were even
allowed to be members or invited as members, and it was
actually Donald Trump, before he was in politics, that made
that very important change so that we weren't treating people
differently based on their immutable traits.
I also want to say on the subject of this hearing, when it
comes to Supreme Court ethics and guardrails, I am supportive
of bipartisan efforts to have some sort of an ethics construct
on the Court. I don't understand why Congress is subject to
ethics rules, the Executive is subject to ethics rules. Because
we put a black robe on somebody and give them a lifetime
appointment, all the sudden when they fail to enact their own
ethics rules, we just allow that to occur?
To my friends on the right, like, if you can buy off
Supreme Court Justices, the left is definitely going to end up
being way better at that than we are. So, I would suggest in
the next Congress when this is more than just a theatrical
exercise, we actually work together on opportunities to have
strong ethics requirements that enhance the public perception
of the Court.
I yield the remainder of my time to Mr. Jordan.
Mr. Jordan. I thank the gentleman for yielding.
Mr. Schenck, how did The New York Times get the story?
Mr. Schenck. They called me and asked me to confirm facts
surrounding what they had heard about a 2014 leak of the Hobby
Lobby decision.
Mr. Jordan. What prompted them to call you?
Mr. Schenck. They said they had learned some facts about
the case, and they were asking me if it was true.
Mr. Jordan. From whom?
Mr. Schenck. They did not--the reporters did not tell me
from whom they learned it.
Mr. Jordan. Just out of the clear, blue sky, they come say,
hey, did Ms. Wright at a dinner party hear from Justice Alito
the outcome of a pending case, in particular, the Hobby Lobby
case? Did she call you? How did they know the facts, the
alleged facts? Because they're not facts. I don't think it
happened.
Mr. Schenck. That was not the question they asked me. The
first call from reporter Jodi Kantor, I think it was something
along the lines of, we are aware of a possible prior leak, and
that you were involved. Can we ask you some questions about
that? It was words to that effect.
Mr. Jordan. What did you say then?
Mr. Schenck. I said I was not prepared to talk about that.
Mr. Jordan. Okay. Then you subsequently talked to The New
York Times. So, when did you call them back?
Mr. Schenck. It was probably days to--I would say certainly
multiple days. I was very conflicted. I wanted to keep this a
private matter. I did not intend to go public with it.
Mr. Jordan. Well, do you remember the date that you did
call The New York Times back and tell them the alleged story
that you have shared here today?
Mr. Schenck. It may have been late May. I would have to
consult my notes on that, but--
Mr. Jordan. Let me ask it this way: You said this to The
New York Times after the actual leak of the Dobbs opinion?
Mr. Schenck. Let me think about that for a minute,
Congressman.
Mr. Jordan. I just want--I'm trying to figure out where it
fits in. You have the Dobbs leak on May 2. You write a letter
to the Chief Justice of the Supreme Court, Justice Roberts, on
June 7.
When did you talk to The New York Times?
Mr. Schenck. Sometime--I would have to check again, but it
was sometime in late May to early June.
Mr. Jordan. Before you sent--so it was more important to
talk to the press about this leak than it was to send--put the
Court on notice of something that's so egregious that you're
here today testifying in front of Congress?
Mr. Schenck. Oh, I was in great turmoil about the whole
matter, Congressman. I was literally praying on it. I was
agonizing over it--
Mr. Jordan. Well, I appreciate that.
Mr. Schenck. --what I should do about it.
Mr. Jordan. It's important. I appreciate that.
You did it before you sent the letter to the Chief Justice?
Mr. Schenck. Off the record. Strictly off the record, I did
answer some questions.
Mr. Jordan. Well, now we're talking off the record. Why off
the record? If it's so darn important you're praying for it,
why not just tell them? More importantly, if you really want
this to happen, why not go to the Chief Justice first? Why not
go to the Court first? If you're so concerned this is so
egregious, we've got to come forward even though--why not do
that? But no, no. You said I'm going to go off the record with
The New York Times.
Mr. Schenck. I wonder, Mr. Jordan, have you ever dealt with
the Chief Justice? I wasn't sure I wanted to get called in by
the Chief Justice.
Mr. Jordan. I do a call with the Chief Justice. We do a
call where we talk about the Courts and the whole system.
Mr. Gaetz. Well, Mr. Jordan, maybe the reason that he was
off the record then was because there was no book deal.
Mr. Jordan. Maybe, maybe. My time is up.
Mr. Schenck. Could I ask just to your comment, Mr. Gaetz? I
couldn't hear that. I'm so sorry.
Mr. Gaetz. Yeah. Maybe a book deal--
Mr. Schenck. There was no book deal.
Mr. Gaetz. --would be a motivator.
Mr. Schenck. No, absolutely no book deal. There was no book
deal, no consideration of a book deal.
Mr. Johnson of Georgia. The gentleman's time has expired.
We'll now go to the gentleman from California, Mr. Lieu,
for five minutes.
Mr. Lieu. Thank you, Mr. Chair.
I heard some disturbing comments from my colleagues across
the aisle today that somehow, we need to not criticize the
Supreme Court, that we need not to attack the legitimacy. That
is just absolutely wrong. We are coequal ranks of government.
Our job is to conduct oversight over the other branches of
government, including the Supreme Court. If they have self-
inflicted wounds, if they do bad things, it's our job to
criticize them and to show that to the public. We are not here
to prop up institutions if they don't deserve to be.
Now, one reason the United States Supreme Court is at its
lowest approval rating in U.S. history is because multiple
Supreme Court Justices lied to the American people.
So, I have some questions for Professor Fredrickson. These
Justices lied during their confirmation hearings, and this is
how we know. In the Dobbs majority opinion, the majority states
that Roe was egregiously wrong from the start. Justices Gorsuch
and Kavanaugh signed under that opinion. They had to know at
the time of their confirmation hearings that Roe was
egregiously wrong from the start.
So, Professor Fredrickson, did Justice Kavanaugh tell the
American people under oath during his confirmation hearings
that Roe was egregiously wrong from the start?
Ms. Fredrickson. No, I don't believe so.
Mr. Lieu. Did Justice Gorsuch tell the American people that
he believed Roe was egregiously wrong from the start?
Ms. Fredrickson. No, I don't believe so.
Mr. Lieu. In fact, they did exactly the opposite. Justices
Kavanaugh and Gorsuch went out of their way to assure the
United States Senators under oath and the American people that
they view Roe as settled precedent. In fact, he told Senator
Lindsey Graham that he would have walked out the door had Trump
asked him to overturn Roe. Justice Gorsuch said:
I would tell you that Roe v. Wade, decided in 1973, is a
precedent of the United States Supreme Court. It has been
reaffirmed. A good judge will consider it as precedent of U.S.
Supreme Court worthy of treatment as precedent like any other.
He did not say Roe was egregiously wrong from the start.
Then Justice Kavanaugh had the following to say. He said:
``It is settled as a precedent of the U.S. Supreme Court,
entitled to the respect under principles of stare decisis.''
The Supreme Court has recognized a right to abortion since the
1973 Roe v. Wade case and has reaffirmed it many times.
Kavanaugh did not say that Roe was egregiously wrong from the
start.
These two Justices lied to the American people. They went
out of their way to assure U.S. Senators and the American
people that they viewed Roe v. Wade as settled precedent. That
is one reason the U.S. Supreme Court is at its lowest approval
rating in history. That's why we need to also pass a Supreme
Court Code of Ethics.
Then in my remaining time, I would like to ask Reverend
Schenck some questions. So, clearly, when The New York Times
called you and asked you about the Supreme Court, they already
had information that there was a leak of the Hobby Lobby
decision. Is that correct?
Mr. Schenck. Yes.
Mr. Lieu. Based on that article and the leak of the Hobby
Lobby decision, it is certainly possible that the Dobbs
decision was actually leaked by conservatives on the Court.
Isn't that correct?
Mr. Schenck. I'm not sure I can answer that, Congressman.
Mr. Lieu. So, I'll dismiss it. It's certainly possible. My
Republican colleagues are adamant this leak came from the
liberal Justices. There's no evidence of that. The evidence
could certainly point to conservatives leaking this, to hold
the conservative Justices to that opinion.
So, I wish my Republican colleagues would stop sneering the
left of liberal Justices for leaking this when there's no
evidence that they did so.
Then, let's talk about what Congress did to protect Supreme
Court Justices. We passed a law. We voted on the floor a bill
to help protect Supreme Court Justices, and I know it was
conservatives that refused to protect Supreme Court Justice law
clerks with that same production. I think that's shameful. I
think Supreme Court clerks should also be protected.
When we talk about actual political violence, you know who
had their skull hit by a hammer? It was a spouse of the Speaker
of the House. Multiple Republicans made fun of that. They
circulate conspiracy theories. They said all sorts of things
that were not true. Republicans should be ashamed for doing
that.
So, please stop whining about threats to Supreme Court
Justices when the actual violence of a person being hit in the
head with a hammer, had to go to surgery was a spouse of the
Democratic Speaker of the House.
I yield back.
Mr. Johnson of Georgia. The Chair will now recognize the
gentleman from North Carolina, Mr. Bishop, for five minutes.
Mr. Bishop. Thank you, Mr. Chair.
I think Mr. Lieu is pretty far afield on a couple of
things.
Professor Fredrickson, could I just ask this? Do you
endorse the rhetoric just used that Justices lied when they
testified to the Senate Committee that Roe--that they were
effectively open-minded about Roe, that Roe was established law
and stare decisis follows the principles that exist in law?
Ms. Fredrickson. Respectfully, Mr. Congressman, I'm here to
talk about this bill, and I think we should stick to this
conversation about the ethics--
Mr. Bishop. Yeah, but you don't get to tell me what the
questions are here. I get to decide. So, you can tell me you
refuse to answer the question I ask, and that would be
revealing enough.
Do you endorse the notion that those Justices lied as Mr.
Lieu just accused them?
Ms. Fredrickson. I have no idea whether they lied or
whether they simply changed their minds because, as Reverend
Schenck said earlier, ``we don't know what's going on inside
their minds.''
Mr. Bishop. Isn't it correct--
Ms. Fredrickson. They certainly did change positions quite
radically.
Mr. Bishop. Isn't it correct that a judge reserves judgment
on an issue to come before them until that case is presented?
Isn't that the proper discord--or proper approach for a judge?
Ms. Fredrickson. Indeed. However, when they're asked about
whether there is existing precedent, they're also--generally,
would confirm that there's existing precedent. If they say
they're going to abide by it, one would assume they would abide
by it.
Mr. Bishop. Do you think it's ethical to smear a Justice by
confusing the public about that, by suggesting that Justices
being examined by a Senate Committee are lying when they're, in
fact, reserving judgment as to an issue that is not yet
presented?
Ms. Fredrickson. Unfortunately, the biggest ethics smear
for Supreme Court Justices right now is all the information
that has been coming out about the trips--
Mr. Bishop. Right. You are now answering something else. I
asked you if what I propose to you is ethical. Is it ethical to
smear a Justice by doing that?
Ms. Fredrickson. You asked me whether the public would
consider those to be ethics problems if we were--
Mr. Bishop. No. That's not what I asked you.
Ms. Fredrickson. The perception of--
Mr. Bishop. I'll reclaim my time if you're not going to
answer my question.
Let me move to Mr. Schenck. Mr. Schenck, in a blog post you
wrote recently--it's up here on the--yeah, I'm sure you've seen
it here today. It says: ``In my 64-plus years, I've not only
believed a fair number of consequential lies, I've promulgated
them.''
Although the Chair said it was unseemly in some way, before
the Chair said that, Mr. Jordan, rather devastatingly, cross-
examined you about a claim you made in your book. So, you've
proclaimed that you are a liar, or you have been a liar.
Do you think it's ethical for this Committee, for the
majority of this Committee to bring in an inveterate--who's
whispering in your ear? Mr. Schenck, who is it that is
whispering in your ear as you're testifying?
Mr. Schenck. My counsel.
Mr. Bishop. That's your lawyer. So, he's advising you in
your ear while you're getting this question? Okay. I just
wanted--
Mr. Schenck. Yes.
Voice. It is his right to counsel.
Mr. Bishop. No, absolutely. I just want to know who's
whispering in your ear.
Do you think it's ethical for the majority of this
Committee to bring in someone who has professed to have been a
liar, been demonstrated to be a liar, to cast aspersions on a
Supreme Court Justice for the purpose of bringing the Court
into disrepute?
Mr. Schenck. Congressman, the Members of--some Members of
this Committee with whom I've spent time in prayer, Bible
study, many visits, there are Members of this Committee who
have visited my headquarters building on numerous occasions to
participate in events there, no. All during the years that I
was an advocate for certain causes, I was a passionate believer
in them.
At this stage of my life, and at this part of my journey, I
look back and realize that many of the things that I
promulgated were not true.
Mr. Bishop. So, did you know at the time they were not
true?
Mr. Schenck. I did not know at the time.
Mr. Bishop. Okay. So, you did not know the difference
between the truth and a lie?
Mr. Schenck. One of them--
Mr. Bishop. Let me ask you this question. The thing that
you say that you did, you encouraged wealthy donors to
insinuate themselves with Supreme Court Justices in hopes of
influencing them. Was that unethical?
Mr. Schenck. I'm not an expert on judicial ethics. I don't
know anything--
Mr. Bishop. I didn't set any preconditions. Was it
unethical? Can you say that was an unethical thing to do?
Mr. Schenck. It violated Christian ethics.
Mr. Bishop. Okay. So, you--all right.
You're the person that they decided to bring in here as a
Witness? That says a lot.
I think to Mr. Gaetz's point earlier, I don't know exactly
how the Supreme Court ought to have a Code of Ethics or whether
it will change something important. I do think a lot of people
want to use it tactically to prevent them from doing their
jobs, but nothing is new here over the hearings we have had
before, except Mr. Schenck's testimony. The Witness they
decided to bring in speaks for itself.
I yield back.
Mr. Johnson of Georgia. The Chair will next recognize the
gentleman from Maryland, Mr. Raskin, for five minutes.
Mr. Raskin. Thank you, Mr. Chair.
Ms. Fredrickson, do most State Courts of Appeal or State
Supreme Courts have a Code of Ethics?
Ms. Fredrickson. Yes. I believe most courts in the world
have a Code of Ethics.
Mr. Raskin. So, the high courts of countries in Europe,
Asia, and Africa would be governed by Code of Ethics?
Ms. Fredrickson. So, I understand, yes.
Mr. Raskin. Do you recognize this quote:
No man is allowed to be a judge in his own case or cause,
because his interest would certainly bias his judgment, and,
not improbably, corrupt his integrity.
Ms. Fredrickson. Yes, indeed.
Mr. Raskin. Where is that from?
Ms. Fredrickson. Well, it comes from the Latin, ``No man
may be a judge of his own cause.''
Mr. Raskin. This is James Madison's statement in the
Federalist Papers in Federalist 10. Defining this is a cardinal
principle of our law.
So, leaving aside the questions of the leaks and this
Witness, and so on, do you think it should be something that
everybody across the country should be able to accept that the
Supreme Court of the United States should be governed by a Code
of Ethics?
Ms. Fredrickson. Indeed, I do. I was heartened by Mr.
Gaetz's comments, and I understand that Mr. Issa in the past
has also supported legislation that would impose ethics
obligations on the Court.
Mr. Raskin. Is there anyone on the panel who disagrees with
what Mr. Gaetz said a few moments ago, that this Court should
undertake a rigorous examination of how we can arrive at a
serious Code of Ethics for the Supreme Court?
Does anybody disagree? No. Okay. No. All right.
Let the record reflect that.
Now, Mr. Schenck, they call you a liar. They call you
deceitful. They call you manipulative, exploitative, and so on.
I take it that they weren't calling you that when you were
in service of the right-wing religious agenda, though, right,
or were these same forces attacking you then?
Mr. Schenck. No, Mr. Raskin. In fact, I enjoyed quite a bit
of support from some of those same voices.
Mr. Raskin. In fact, you were part of that right-wing
religious movement, weren't you?
Mr. Schenck. I was.
Mr. Raskin. Okay. How long were you part of that movement?
Mr. Schenck. Thirty-five years.
Mr. Raskin. So, whatever your character is, you might be
considered by some to be a saint, you might be considered by
some to be Satan's spawn, or you might be considered a normal
person with virtues and vices and strengths and flaws. In any
event, has your character changed over the course of your life?
Mr. Schenck. No, Mr. Raskin, I think I have been
consistent. I have been through some marked changes, I
described as conversions that I think are important along the
path.
Mr. Raskin. Explain the conversion that would help us
understand why people who would ordinarily be embracing you if
you were still saying the same things you were saying for many
decades are now attacking you. What was the conversion you went
through that's made them turn on you?
Because we've seen this many times in this Committee and
next door in the Oversight Committee. I remember when Michael
Cohen came, and he was Donald Trump's loyal sycophantic,
obsequious lawyer for years and years, and they all defended
him. Then when he said, ``I can't take it anymore and I'm going
to tell the truth about Donald Trump,'' they turned on him.
Then suddenly they discovered he was a liar, he was deceitful,
he was manipulative.
So, what happened to you?
Mr. Schenck. For the last few years of my teen years and
the entirety of my adult life, I have been a committed
evangelical Christian. What I came to see in the last 12 years
was how my faith and that of the community that I have been a
part of all these years was politically coopted in what I call
a Faustian pact with the Republican Party. When my eyes were
opened to that, it changed my opinion on many things, including
the stand I had taken on abortion since--
Mr. Raskin. Okay. So, you didn't want to be part of the
cooptation. You didn't want to be part of the political
exploitation. You don't want to be part of the political
domination anymore. Whether people think that you're the
greatest hit in the world or the biggest jerk, this is a
sincere religious revelation that you've had. Is that right?
Mr. Schenck. Yes.
Mr. Raskin. This is sincere in terms of your religious
conviction?
Mr. Schenck. Yes, sir.
Mr. Raskin. Okay. The people who never attacked you before
are suddenly attacking you now. Is that right?
Mr. Schenck. That's right.
Mr. Raskin. Mr. Chair, I yield back.
Thank you.
Mr. Biggs. Mr. Chair?
Mr. Johnson of Georgia. The gentleman is recognized.
Mr. Biggs. I have a unanimous consent request. I ask
unanimous consent to submit for the record the letters of
Reverend Dr. Myke D. Crowder, Senior Pastor of Christian Life
Center in Layton, Utah, about Mr. Schenck, and the statement of
Father Frank Pavone, National Director of Priests for Life.
Mr. Johnson of Georgia. Without objection, so ordered.
[The information follows:]
MR. BIGGS FOR THE RECORD
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Mr. Johnson of Georgia. The Chair will now recognize the
gentlelady from Florida, Ms. Demings, for five minutes.
Ms. Demings. Thank you so much, Mr. Chair.
Thank you to our Witnesses, to all of you who are being
here today.
I have to say, as I sit here as a former police officer and
a police chief, this is one of the strangest discussions. It's
interesting that we are not having this discussion in a more
proactive way.
It was even suggested earlier, as we talked about holding
the Court accountable, it was suggested that it was an effort
to try to intimidate the Court. That's the strangest--that's
pretty strange. See, I have always operated under a belief that
everybody counts, but everybody is accountable.
Growing up in this wonderful country that we enjoy, I have
admired the Supreme Court since I was a child. No one could've
ever made me believe that they could be compromised.
I don't think we can sit here, any of us can sit here and
say that their approval rating that has plummeted is something
that we can ignore.
I think about some of the landmark decisions, certainly as
a person growing up in Florida, and as a law enforcement
officer, like Miranda v. Arizona. It says that a person does
not have the ability to self-incrimination.
I think about Brown v. Board of Education in Topeka, that
racial discrimination in public schools was unconstitutional.
I think about Gideon v. Wainwright that says that every
person, every defendant should have access to an attorney
regardless of their ability to pay.
That's the America that I support, and that's the Supreme
Court that I remember.
Whether you're looking back in history or we're moving
forward, we should be very concerned about what's going on in
the Court, the final arbiter of decisions that come before the
Court, decisions that affect people's lives.
America, as they have in these cases, and as they should be
able today and moving forward, should be able to defend and
have full confidence in the Supreme Court.
As a former police chief, the most junior police officer on
the force was subject to a Code of Ethics. They had to
disclose--police chiefs--we had to disclose any gifts or
income, travel, and all those things.
I just don't--and the reason is so we cannot be
compromised. Then the appearance, the perception of compromise
also should matter. So, I'm not really sure why we would be
pushing back today against a Code of Ethics for the United
States Supreme Court.
I'm glad for all our Witnesses and the information that
you've given. Mr. Paoletta, I just have to ask you, why do you
believe that the United States Supreme Court, the final arbiter
in some very critical decisions that affect people's lives for
a lifetime potentially, that they should not be subject to a
Code of Ethics or standard of conduct.
Mr. Paoletta. I think the Chief Justice has said that they
consult the Code of Ethics, the one that's--
Ms. Demings. I saw that, that they consult it.
Mr. Paoletta. Yeah, yeah.
Ms. Demings. We didn't leave it to police officers to
consult it. It wasn't enough.
Mr. Paoletta. My objection--yeah. My objection--
Ms. Demings. I just want to hear what's the fear of having
a Code of Ethics--
Mr. Paoletta. Yeah. Sure. Right.
Ms. Demings. --for people who will make decisions that can
affect us for the rest of our lives? What's the hesitation
there?
Mr. Paoletta. Sure. I come to testify because I object to
the gaslighting of the Supreme Court. All of the things that
you're raising now--
Ms. Demings. Okay. I hear that, and I understand that, and
we need to knock it off, because we need to get this right.
I heard my colleague from Florida, Mr. Gaetz, say we're on
the same sheet of music, that I think there is room for this to
happen.
I want to know why you believe that there is no need, it's
not necessary for the Supreme Court--
Mr. Paoletta. Again, as I said, when you look at the
Supreme Court approval rating back in the day when Ruth Bader
Ginsburg's husband was appearing before the Supreme Court and
she was ruling on her husband's law firm's cases, when she was
speaking before the NOW Legal Defense Fund and being honored by
them, donating a signed VMI opinion that she wrote--
Ms. Demings. Whether it's Ruth Bader Ginsburg or any
Justice, why do you believe they should not be subject to a
Code of Ethics?
Mr. Paoletta. Right. I just didn't hear a Democratic
Congress talking about this Code of Ethics back--
Ms. Demings. We're talking about it now. Sometimes we're
late.
Mr. Paoletta. I understand that--
Mr. Johnson of Georgia. The gentlelady's time has expired.
Mr. Paoletta. I understand it. It's just, it wasn't talked
about in the past, and so that's my objection to this
discussion.
Ms. Demings. I haven't heard a reason why you really
believe they should not be subject.
Mr. Chair, thank you for your endurance. I yield back.
Mr. Johnson of Georgia. Thank you.
Mr. Bishop. Mr. Chair, may I be recognized for a unanimous
consent request?
Mr. Johnson of Georgia. The gentleman is recognized for
that purpose.
Mr. Bishop. I thank the Chair. I offer for the record, from
The Daily Signal, May 6, 2022, a piece entitled, ``Left's
Attack on Conservative Justices is Attempt to Delegitimize
Supreme Court''; an article from The Federalist entitled, ``New
York Times Knowingly Printed False Smear of Justice Thomas'
Wife''; from The Wall Street Journal, opinion piece, ``The
Hypocrisy of Supreme Court Ethics Journalism''; from The
Federalist, ``The New Yorker Lies Again About Clarence Thomas
And His Wife''; and from The Daily Caller, ``Paoletta: Leftist
Tantrum Targets Spouses In Latest Attack To Undermine SCOTUS'
Legitimacy.''
Mr. Johnson of Georgia. Without objection, so ordered.
[The information follows:]
MR. BISHOP FOR THE RECORD
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Mr. Johnson of Georgia. The Chair will now recognize the
gentlelady from Texas, Representative Jackson Lee, for five
minutes.
Ms. Jackson Lee. I thank the Chair very much.
Let me put it on the record that I have no desire to
undermine the Supreme Court. I am, in fact, an Earl Warren
Legal Scholar. I was so honored to have received that honor as
I entered into the University of Virginia School of Law. So, I
take great umbrage with that suggestion. I am going to suggest
that we have some problems that need to be fixed.
Professor Fredrickson, it's good to see you. You've been
before our Committee before.
I had already heard from the distinguished gentleman, Mr.
Paoletta.
It should be well noted that we do have a factual basis,
not presently before this Committee, that the wife of a Justice
was actively engaged in January 6 in terms of its advocacy and
other aspects of her participation.
For me, that strikes at the core of creating a more perfect
union and the upholding of the Constitution that is a
responsibility of the United States Supreme Court.
Let it be very clear. Ethics bounds us all. We walk in
ethics in most aspects of Americans' interaction. There are
corporate ethics that sometimes are followed and not. There are
ethics in school boards. There are ethics in the University of
Virginia that has its own internal student judicial system.
Because people believe that you should adhere to the truth.
So, let me first quickly go to professor--or Reverend
Schenck.
Thank you for indicating that you are a simple man of God
and your life was around that.
I read from your testimony:
In March 1996, my team had concluded that the Supreme Court was
a necessary part of our designated mission field. By then, I
was convinced that no matter how much pro-life Legislation or
Executive policy success we achieved, inevitably, any gains
would be frustrated, diminished, or nullified by the existence
of Roe v. Wade. As what has sometimes been called a ``super
precedent'' . . .
So, you go on to speak about your understanding of that.
Take me from that point and what you just testified, that
the evangelical movement got wrapped up into the Republican
toolkit and became a tool of Republicans who did not want to
find the balance, of wanting to use the sledgehammer approach,
rather than a man of God. I think you were speaking from your
heart.
Reverend, would you please?
Mr. Schenck. Thank you, Congresswoman Lee (sic).
I'll take you to one very telling event, a meeting inside
the U.S. Capitol with Republican Party operatives and a number
of leading evangelical spokespersons, institutional leaders,
ministry heads from across the country. In that meeting that I
participated in, the conversation went something like this.
You guys want Roe v. Wade overturned. We can do that for you.
But you take the whole enchilada, you take the whole thing, you
take everything else that comes with it. Because if you want
Roe gone, you have to work with us. So, you take it all.
I was at the table, and I watched my colleagues nod,
uncomfortably. From that point on, the community that I had
served, and still do, made a deal with the devil. That deal was
that we would support everything on the conservative agenda
whether or not we had conscientious conflict with it. The means
were justified by the end of that.
Ms. Jackson Lee. It also meant that you had to approach the
Supreme Court in a different way, that they had to be
influenced?
Mr. Schenck. Well, certainly we had to do everything we
could to ensure that the Justices would be resolved to begin
laying the groundwork for the reversal of Roe.
Ms. Jackson Lee. Let me quickly, because I want to get Ms.
Fredrickson in. Who was in the room? What operatives were in
the room? When I say that, you were in a room of what at that
time?
Mr. Schenck. These were leading evangelical influencers
from across the country.
Ms. Jackson Lee. That might as well and the person speaking
saying you had to do whatever they wanted was an influencer or
a--
Mr. Schenck. More of a party operative, somebody who knew
how to get political objectives achieved.
Ms. Jackson Lee. I'm going to ask, Madam Professor
Fredrickson, is there any insult to having an ethics protocol
for the United States Supreme Court to its ability as a third
branch of government?
Ms. Fredrickson. No. I think it actually would be a
celebration of the role that the Supreme Court plays in our
system.
Ms. Jackson Lee. May I ask unanimous consent to submit two
documents into the record? This is during the confirmation
hearings of Justice Kavanaugh, Gorsuch, and Amy Coney Barrett,
where all of them committed to the acceptance of the precedent
of Roe v. Wade, under oath. I ask unanimous consent to place
this into the record.
Mr. Johnson of Georgia. Without objection, so ordered.
[The information follows:]
MS. JACKSON LEE FOR THE RECORD
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Ms. Jackson Lee. I thank the Witnesses.
Thank you for your courage, Professor. I want to call you
professor. Reverend, thank you for your courage.
Mr. Johnson of Georgia. The Chair will now recognize the
gentlelady from Georgia, Representative McBath, for five
minutes.
Ms. McBath. Thank you, Chair.
I want to thank the Witnesses today. Thank you so very much
for patiently being here with us today and your testimony.
I have to say, with all moral clarity today, for each and
every individual in this room, let him who is without sin cast
the first stone.
Reverend Schenck, you and I have had the pleasure to meet
almost 10 years ago, and long before I had ever even considered
running for Congress.
My son Jordan had just been murdered by a man with a gun
who didn't like the loud music that he was playing in his car
with his friends. When we met, most assuredly at that time you
and I didn't necessarily agree on gun safety policy. You
listened to a mother's story, you listened to my heart.
Years later, you began to challenge your own ideas as you
believe God had warranted you to do, as he was calling you to
do. As his shepherd, you still continue to reflect on your
moral and theological responsibility to God's people.
Faith has helped guide you all your life, I do know this to
be true, and the decision to come forward today, like many of
the very difficult spiritual and moral decisions that God has
called on you to make of most recent years, today could not
have been an easy one for you at all.
You have faced fierce negativity and scrutiny, and it has
come at a great personal and financial cost.
Someday everyone in this room will stand before God and
account for the lives that we have lived. You and I, Reverend
Schenck, have engaged in that conversation of faith and truth
almost a decade ago. I have a few questions for you today.
This is kind of a three-part question, so if you need me to
reiterate anything, please feel free to do so.
I'm interested to know what you took from our very first
conversation. I'm also interested to know what role God and
faith have had in your life's decisions.
I'm also interested to know what this particular decision,
the decision to come forward and speak the truth, means to you
as a man of God and a minister to his people.
Mr. Schenck. Thank you, Congresswoman. Yes, thank you for
the role you have played close and from a distance in the
pilgrimage I've been on these last several years.
To begin with, I will tell you that there came a moment in
a dusty seminary basement, comparing the story of the
Evangelical church in Nazi Germany, which declared Adolf Hitler
to be a gift and miracle sent by God to restore Germany to its
greatness, that was an eye-opening and deeply disturbing
experience for me because I realized how my spiritual family
could be utterly politicized in the worst possible way
imaginable. That was an eye-opening experience.
Along the path I met you and I heard your story, and I
realized that the ideology of my community that embraces
unfettered Second Amendment rights became an idol. Ideology can
quickly become a form of idolatry.
Then came other experiences, including the memory of one in
a Montgomery County jail when I was detained for supporting
then Chief Justice Roy Moore of Alabama in his public display
of the Ten Commandments, and hearing the shrieks of a woman in
an odd co-ed wing, psychiatric wing of the jail, screaming for
her children, begging for mercy for her three children, ``Where
are they? Who will, who are caring for my children.'' I
realized I had never heard the voice of that woman in 30 years
of anti-abortion activism.
That came back to me in a certain instance in time and
shook the foundations of the ideology that had become idolatry
for me.
That brought me to a place of repentance, which I'm still
working out. I consider myself a penitent pilgrim. At this time
of my life, part of my penance is to tell the truth.
I hid many secrets during my public life as an activist on
the religious right. I don't want to hold those secrets any
longer, and that's why I've come forward to tell the truth
today.
Ms. McBath. Thank you for your courage and your conviction.
I yield back.
Mr. Johnson of Georgia. The Chair now recognizes the
gentleman from New York, Mr. Jones, for five minutes.
Mr. Jones. Thank you, Chair.
During oral argument this week in a case called 303
Creative, which threatens to undermine the rights of LGBTQ
people in our economy to not be discriminated against, Justice
Alito joked about Black children dressing up in KKK costumes.
His remarks caused many Americans to question his mental
fitness. Even before his antics this week, Americans had reason
to question his integrity.
On November 19, The New York Times published a bombshell
report describing credible allegations that Justice Alito
leaked both the outcome and the authorship of the Court's 2014
opinion in Hobby Lobby to Gayle and Don Wright of Centerville,
Ohio.
The Wrights were far-right donors to the Supreme Court
Historical Society who were actually secret operatives for a
radical anti-abortion group called Faith and Action. The
mission of the Wrights and other operatives trained by Faith
and Action was to ingratiate themselves with those Justices who
proved amenable--the Alitos, the Thomases, the Scalias--go
figure--to influence Supreme Court decisions.
The President of Faith and Action, who I'm grateful is
testifying today--the former President--at the time called
those operatives stealth missionaries.
Their strategy worked. The Wrights became close friends of
the Alitos and they dined in each other's homes. Sam and
Martha-Ann Alito even vacationed with Gayle and Don Wright at
their home in Jackson Hole, Wyoming--which sounds incredible,
by the way. I've never gone skiing in Jackson Hole.
In clear evidence that Hobby Lobby, the result specifically
had been leaked and the author of it had been leaked, The New
York Times described several contemporaneous emails and
conversations from 2014 which confirmed that today's key
Witness, Reverend Schenck, was indeed aware of the outcome of
the Hobby Lobby opinion and the identity of its author.
The only way he could've known this is if Justice Alito had
indeed leaked this information to Gayle and Don Wright. That is
common sense. Justice Alito's hypocrisy, as well as the
hypocrisy of some of my colleagues on this Committee today,
astounds me. It astounds me.
That is because in October of this year, while speaking at
an event commissioned by the right-wing Heritage Foundation,
Justice Alito referred to the leak of his draft opinion in
Dobbs as a, quote, ``great betrayal of trust.'' A great
betrayal of trust.
Will Justice Alito use these same words to describe his own
leak of the Supreme Court's decision in Hobby Lobby? With this
new information, why should any of us believe that he wasn't
the person who leaked the Dobbs opinion? Again, more likely
than not given the evidence that we have before us.
Justice Alito went on to say that, quote, ``Someone crosses
an important line when they say that the Court is acting in a
way that is illegitimate,'' and that he did not think anyone in
a position of authority, quote, ``should make that claim
lightly.''
Well, Justice Alito, your conduct as a member of the
Supreme Court is directly responsible for the American public
increasingly viewing the Supreme Court, unfortunately, as
illegitimate. ``Keep up what you're doing, it's making a
difference,'' Justice Thomas told Reverend Schenck.
Reverend Schenck, thank you for your candor today. I know
this has been very difficult. You wouldn't be the first Witness
who my Republican colleagues have cast unfair aspersions on,
but it's still shocking to hear some of the things that they're
saying about you today and that they have said about you today
because you were just their friend a few years ago, in their
eyes.
What do you think Justice Thomas meant when he said that
it's making a difference, the work that you were doing?
Mr. Schenck. The context of that, Congressman, was the work
I had been doing introducing the individuals I referred to as
stealth missionaries into the life of the Court.
I saw Justice Thomas in the hallway of the Court, and he
made a point to signal to me, and he said, ``Keep up your good
work, it's making a difference.'' The context of that was what
we had been doing at the Court for, at that stage, nearly 17
years.
Mr. Jones. Indeed that work is described in great detail in
The New York Times reporting by Jodi Kantor and others.
In the limited time I have left, I would just make the
following observation. This Committee has requested, time and
time again, a representative from the Supreme Court to opine,
to provide testimony on a variety of questions bearing on the
ethics and the need for ethics reform at the Court.
In October 2021, the Chief Justice failed to send a
representative to testify at our hearing on judicial ethics and
transparency.
In March of 2022, the Chief Justice failed to send a
Witness for this Committee's hearing on workplace protections
for judicial employees.
Yet, again in April 2022, after other bombshell reporting
regarding the violation of the recusal statute by Justice
Thomas pertaining to his wife's far-right activism trying to
overturn the Presidential election and his continued insistence
on ruling in matters relating to January 6, the Supreme Court,
and Chief Justice Roberts, in particular, failed to send a
witness.
Mr. Johnson of Georgia. The gentleman's time has expired.
Mr. Jones. So, I would just conclude, Mr. Chair, by saying
that this is on Justice Roberts to finally do something about
the crisis of legitimacy at the Court. The buck stops with him.
Thank you. I yield.
Mr. Johnson of Georgia. The Chair will now recognize the
gentlelady from Pennsylvania, Ms. Dean, for five minutes.
Ms. Dean. Thank you, Mr. Chair, and thank you for your
interest and determination in this important issue.
I thank our testifiers.
Dr. Fredrickson, you mentioned something that cannot be
said enough, that Supreme Court Justices are not elected. This
is by design.
The Judiciary has no influence over either the sword or the
purse; no direction either of the strength or of the wealth of
society; and can take no active resolution whatever. It may be
truly said to have neither force nor will, but merely judgment.
Of course, that's Hamilton, as has been noted earlier.
We've seen today that money is moving toward the Supreme
Court Justices. We've seen attacks on our civil rights coming
from the courts, on our voting rights protections. This is the
reason public confidence in SCOTUS is at an all-time low.
So, Dr. Fredrickson, I believe this goes a long way in
terms of the leaked opinion. For the average citizen, for my
constituents, why should Americans care about the low approval
rating of our highest court in the land? What is the impact on
their daily lives?
Ms. Fredrickson. Thank you so much. Thanks for the
promotion too. I've never been called ``Dr. Fredrickson''
before. I like it.
Ms. Dean. Forgive me. Forgive me.
Ms. Fredrickson. No, it's great. It's great.
Mr. Dean. Professor. From an old professor to another.
Ms. Fredrickson. I have a J.D. but not a Ph.D.
No, thank you very much for that question. I think I would
just go back to, I think, what Alexander Hamilton was trying to
suggest, and did suggest very forcefully in that, in Federalist
78, was that the Court really depends for its strength.
Its strength is purely moral. Its strength is purely where
it stands in the confidence of the people. When that has been
undermined, it becomes a real danger for the whole idea of
checks and balances and separation of powers.
The role of the Court is to ensure that we stay within the
boundaries of the law, but the only way that they can enforce
that is by respect for their rulings.
I would also evoke James Madison, who Mr. Raskin mentioned,
other author of the Federalist Papers, who talked about checks
and balances and the importance and the fact that there are
only parchment barriers in between the branches and that the
way to actually really effectuate the checks and balances that
are inherent in separation of powers is through the ability of
each branch to oversee the others.
That's why I think it is very critical that this Committee
is undertaking this project. Again, I thank Mr. Johnson for
this legislation.
Ms. Dean. I do too.
Reverend Schenck, in my time remaining, I'm a lawyer by
training, and I remember learning in my early ethics class
about judges avoiding even the appearance of impropriety.
Stunning to me in my adult life to understand that the Supreme
Court Justices don't seem to be accountable to that same
important ethical standard.
So, I'm outraged by the schema of wealthy donors cozying up
to Supreme Court Justices to influence them. As my colleague
just said, what a great betrayal of trust, in this case our
trust.
My question for you, Reverend, is while it's shocking to
me, did any Justice raise his or her hand at one of these
socials, or soirees, to say, ``This doesn't feel right, this is
inappropriate access and attempt at influence''? Did any
Justice say that?
Mr. Schenck. Never in my hearing or presence,
Congresswoman.
Ms. Dean. Never. Never any of their staffers say, ``We're
really worried about the appearance of this''?
Mr. Schenck. No.
Ms. Dean. Never. I would say that there's an awful lot on
these Justices. We hold them in such high regard, or at least I
always did in the past as a student of the law, I held them in
such high regard, and how corrosive these last years have been.
With that, Mr. Chair, I sincerely thank you for the mission
you are on, of course, to bring ethical standards to our
Supreme Court, and I am going to stand with you all the way.
I yield back.
Mr. Johnson of Georgia. I thank the gentlelady. The
gentlelady yields back.
At this time, I'd like to read several letters--well, I
won't read them into the record, but I'll enter them into the
record for today's hearing, from a number of groups, thanking
this Committee for holding this hearing and endorsing an urgent
floor vote on the Supreme Court Ethics, Recusal, and
Transparency Act.
These letters are from Demand Justice and a coalition of
over 80 national, State, and local organizations; also, Project
on Government Oversight; NARAL Pro-Choice America; Interfaith
Alliance; Alliance for Justice on behalf of 150 public interest
and civil rights organizations; also, Senator Russ Feingold of
the American Constitution Society; and last, but not least, Fix
the Court.
Without objection, these are entered into the record.
[The information follows:]
MR. JOHNSON OF GEORGIA FOR THE RECORD
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Mr. Bishop. Mr. Chair, may I be recognized for a unanimous
consent request as well?
Mr. Johnson of Georgia. The gentleman is so recognized.
Mr. Bishop. Thank you, Mr. Chair. I'd like to submit for
the record several more articles.
This is from Newsweek, ``The Baseless `Recusal' Attack on
Clarence Thomas''; from Newsweek, ``40 Years of Attacks and
Slurs Against Justice Thomas''; from the Washington Examiner,
``The Media's War on Clarence and Ginni Thomas''; and from the
Washington Examiner, ``The Ginned-Up Case Against the
Thomases''; and one more from The Federalist, ``Politico
Launches Attack on SCOTUS Justices' Working Spouses.''
Thank you, Mr. Chair.
Mr. Johnson of Georgia. Without objection, so ordered.
[The information follows:]
MR. BISHOP FOR THE RECORD
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Mr. Johnson of Georgia. The gentleman is--or the gentlelady
from Missouri, Representative Bush, is now recognized for five
minutes.
Ms. Bush. Thank you. St. Louis and I thank the Chair for
convening this crucial hearing.
As I've listened to Reverend Schenck's testimony, I've been
thinking about the people who aren't dining with Supreme Court
Justices, who don't get to launch multimillion-dollar influence
campaigns to strip away other people's freedoms, who don't have
access to people in power, but who feel the pain of powerful
decisions.
I'm thinking about nurses in Missouri who have to comply
with comprehensive and mandatory ethics standards, as I had to
as a nurse in Missouri, who's daily decisionmaking impacts low-
income, marginalized communities.
I'm thinking about Black and Brown women dealing with life-
threatening complications because a lawless, unaccountable
Supreme Court gutted our fundamental right to reproductive
healthcare.
So, when we talk about the Supreme Court, we're talking
about life-or-death issues, especially for Black families like
those in St. Louis. We're talking about equity. We're talking
about morality and justice.
So, I want to ask, Professor Fredrickson, are you aware of
any job, other than U.S. Supreme Court Justice, that has
lifetime tenure and a six-figure salary with no binding Code of
Ethics? You can just answer yes or no.
Ms. Fredrickson. I am not aware, no.
Ms. Bush. Thank you.
Mr. Sherman, are you aware of any such job, yes or no?
Mr. Sherman. I am not. I am not, no.
Ms. Bush. Thank you.
Professor Fredrickson, if Reverend Schenck's allegations
about this anti-abortion influence campaign and Justice Alito
leaking the Hobby Lobby decision are true, should Justice Alito
have recused himself in reproductive rights cases like Dobbs?
Ms. Fredrickson. I mean, I think we should really focus on
the fact here that I want to keep this hearing as much as we
can to the substance of this bill. I think we would've avoided
any of these issues had the Committee's interests, and the
interests of the Committee in the past when Republican leaders
moved forward on such legislation, to actually have some ethics
rules for the Court that would constrain their acceptance of
gifts, their acceptance of travel, and we wouldn't actually be
in this situation.
Ms. Bush. Right. I agree with that. Should he--okay. Should
he have recused himself, though, is the question. This will
just be a yes or a no.
Ms. Fredrickson. Yes.
Ms. Bush. Okay. Thank you. I don't mean to cut you off, but
I'm running low on time.
Reverend Schenck, I want to turn to you. The Supreme Court
is encouraged to self-police its own ethics. Do you believe
this system is working? It can be a yes or no or you can go a
little deeper.
Mr. Schenck. Well, thank you, Representative Bush.
I'm not an expert in that field. What I can tell you is
that whatever the current regime, it was no impediment to the
work that I was doing.
Ms. Bush. Let me just say thank you to everyone for your
testimony and thank you to Reverend Schenck for how you've
opened-up yourself to and was vulnerable for this hearing.
I urge every person in America to ask themselves, who do
you know that has a lifetime six-figure salary job with no
binding code of conduct? Why would we give these nine people
that power?
Supreme Court Justices are human beings just as fallible
and corruptible as any other person and they deserve to be held
to the same standards. We absolutely need to pass Congressman
Johnson's bill before the end of this year.
That is the bare minimum. Yes, we need to expose the
corruption of right-wing, dark-money lobbying campaigns, like
Operation Higher Court. What about the moral corruption of
Justices themselves? How do we address credible allegations of
sexual harassment and assault, credible, decades-long hostility
to fundamental rights like voting and abortion, and a radical
approach to the law that threatens to set us back decades and
even centuries?
We need to limit the power of the Justices by expanding the
Court, instituting term limits, and stripping its ability to
take away fundamental rights.
Every day we do nothing about this rogue and dangerous
institution is a day we are failing the people of St. Louis and
people of this country.
Thank you, and I yield back.
Mr. Johnson of Georgia. The gentlelady yields back.
The gentleman from Ohio, the Ranking Member and incoming
Chair of the Judiciary Committee, Mr. Jordan, is recognized for
five minutes.
Mr. Jordan. Thank you, Mr. Chair.
Mr. Paoletta, is it only conservative Justices who give
lectures?
Mr. Paoletta. You'd think so by this conversation. But no,
of course. Justice Sotomayor goes to the American Constitution
Society and--
Mr. Jordan. Oh, the group right next to you?
Mr. Paoletta. I think she was the head of it, right? But,
yes. I support that, I think it's great. In fact, it's
specifically permitted by the ethics code that they all want to
apply to the Supreme Court. It actually, for lower court
judges, the one that's on the books, says you can go to
educational organizations.
So, The Federalist Society is an educational organization.
It's a great organization. The ACS is still--is also a 501.
It's not an advocacy group.
Mr. Jordan. Well, so some of the Justices are maybe not as
conservative as the ones that are being talked about today.
Mr. Jones. Will the gentleman yield?
Mr. Jordan. Would Justice--
Mr. Jones. Will the gentleman yield?
Mr. Jordan. Who's asking?
Mr. Jones. Over here, Mr. Jordan.
Mr. Jordan. It's our last five, and I want to yield here,
so--
Mr. Jones. Sure.
Mr. Jordan. If we have some time, we will do it.
Mr. Jones. Sure.
Mr. Jordan. So, the late Justice Ruth Bader Ginsburg, did
she give lectures, did she do speeches, did she go on trips?
Did she do some of those things too?
Mr. Paoletta. Yes. In fact, she actually spoke at the NOW
Legal Defense Fund, which was an advocacy group that had
probably hundreds, if not scores of briefs before the Supreme
Court. There was a lecture named after her. She donated a
signed VMI opinion, her opinion, for a fundraiser for NOW.
Mr. Jordan. Really?
Mr. Paoletta. Yes. When she was--and when she was--
Mr. Jordan. NOW certainly wasn't a pro-life organization,
right?
Mr. Paoletta. No. Again, it wasn't a 501(c)(3).
Mr. Jordan. Right.
Mr. Paoletta. It was an advocacy group that was litigating
before the Supreme Court.
Mr. Jordan. Important distinction.
Mr. Paoletta. Yes.
Mr. Jordan. Thank you. Well, I appreciate that. I think
that's important for us all to know, for the Committee to know.
I would yield my time to Mr. Bishop, and if there is
anything left, we will yield to Mr. Jones.
Mr. Bishop. All right. I thank the Ranking Member, soon to
be Chair.
Mr. Schenck, you said something, it was followed up by one
of the other Members, and I want to explore it for a minute.
So, you talked about this anecdote where Justice Thomas
told you, ``Keep it up, you're doing--you're having an
impact,'' or something like that. Is that correct?
Mr. Schenck. Yes.
Mr. Bishop. So, you were a member of the clergy, right, a
pastor--
Mr. Schenck. Correct.
Mr. Bishop. --interacting.
Do you believe that people in high office, including
Supreme Court Justices, ought to have access to spiritual
counsel?
Mr. Schenck. Yes.
Mr. Bishop. Do you believe that if someone comes, say, in
the Halls of Congress and wants to pray, or comes to my office
and wants to pray with me, that I should suspect that they're
trying to insinuate themselves for some political objective?
Mr. Schenck. No, but I think you should be discerning about
it.
Mr. Bishop. Yeah. Is there any reason to believe that the
Justices are not discerning? In other words--let me withdraw
the question and ask it this way.
Mr. Schenck. Yes.
Mr. Bishop. If Justice Thomas says, you're having an
impact, keep it up, wouldn't it be a fair interpretation of
that statement to be, your prayers for us, your gathering with
us to console us and offer prayer and praying for you, that
those are having--they're enlivening the Court, they're
bringing about a better atmosphere in which we can work and do
our jobs, but it doesn't mean that you're influencing me in my
decisionmaking?
Mr. Schenck. That's a hopeful statement, Congressman.
Mr. Bishop. So, you take it as hopeful. The way you think
of your spiritual relationship, as a man of the cloth,
interacting with these officials, is that you were trying to
manipulate them. Is that what I understand?
Mr. Schenck. There comes a time, Congressman, when politics
begins to inform religion in a way, I think is corrupting to
both. I witnessed--
Mr. Bishop. I'm sure in some people's lives that's true,
but I certainly hope it's not the case.
Mr. Paoletta, is that a fair reading of what goes on?
Mr. Paoletta. It's just--I don't believe a thing Mr.
Schenck says. I don't even know if Justice Thomas said that.
He's said something like that to students.
One of the things that is lost here is that the Justices,
and particularly Justice Thomas, meet with hundreds of students
that come to the Supreme Court. He spends hours with them.
If you remember the quote that Justice Sonia Sotomayor said
about Justice Thomas is that he talks to all the employees in
the Court, from the janitor to the Justices.
Mr. Bishop. Absolutely.
Mr. Paoletta. He knows about their families. He knows who
is sick. He knows who is having a wedding.
You know how that comes about? Because he spends time
talking to them. He does that with students, and they're
legendary.
Mr. Bishop. Mr. Paoletta--
Mr. Paoletta. Anyone up on the Court who actually knows the
Justices knows he spends time with people a lot. So, these
folks that--no, the other thing about Mr. Schenck, is, once
you're a liar, it's tough to believe whatever you say. So, when
he invents this thing that Mr. Jordan brought up about adding
the word ``Reverend,'' okay, a flat-out lie.
Mr. Schenck wrote that book and had a look back at that
phrase, okay, and he deliberately entered it in, and there's no
other way to interpret that, that he looked at that phrase, he
added ``Reverend'' and then he added this bogus story about
winking to his brother about hearing the word ``Reverend.''
So, when he says that Justice Thomas says that, I don't
even believe it.
Mr. Bishop. To be sure. I don't know which is more
despicable, though, lying here or engaging in that sort of
interaction with people on the pretense of being a pastor.
I yield back.
Mr. Johnson of Georgia. The gentleman's time has expired.
This concludes today's hearing. We thank all the Witnesses
for your participation.
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 3:40 p.m., the Committee was adjourned.]
APPENDIX
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