[Senate Hearing 118-35]
[From the U.S. Government Publishing Office]
S. Hrg. 118-35
SUPREME COURT ETHICS REFORM
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
MAY 2, 2023
__________
Serial No. J-118-14
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
52-656 WASHINGTON : 2025
COMMITTEE ON THE JUDICIARY
RICHARD J. DURBIN, Illinois, Chair
DIANNE FEINSTEIN, California LINDSEY O. GRAHAM, South Carolina,
SHELDON WHITEHOUSE, Rhode Island Ranking Member
AMY KLOBUCHAR, Minnesota CHARLES E. GRASSLEY, Iowa
CHRISTOPHER A. COONS, Delaware JOHN CORNYN, Texas
RICHARD BLUMENTHAL, Connecticut MICHAEL S. LEE, Utah
MAZIE K. HIRONO, Hawaii TED CRUZ, Texas
CORY A. BOOKER, New Jersey JOSH HAWLEY, Missouri
ALEX PADILLA, California TOM COTTON, Arkansas
JON OSSOFF, Georgia JOHN KENNEDY, Louisiana
PETER WELCH, Vermont THOM TILLIS, North Carolina
MARSHA BLACKBURN, Tennessee
Joseph Zogby, Chief Counsel and Staff Director
Katherine Nikas, Republican Chief Counsel and Staff Director
C O N T E N T S
----------
MAY 2, 2023, 10:03 A.M.
OPENING STATEMENTS
Page
Durbin, Hon. Richard J........................................... 1
Graham, Hon. Lindsey O........................................... 3
Whitehouse, Hon. Sheldon 5
Kennedy, Hon. John............................................... 6
WITNESSES
Dupree, Thomas H., Jr............................................ 17
Prepared statement........................................... 62
Fogel, Hon. Jeremy............................................... 10
Prepared statement........................................... 70
Frost, Amanda.................................................... 20
Prepared statement........................................... 75
Mukasey, Hon. Michael B.......................................... 13
Prepared statement........................................... 89
Payne, Kedric.................................................... 16
Prepared statement........................................... 96
Responses to written questions............................... 115
APPENDIX
Items submitted for the record................................... 61
SUPREME COURT ETHICS REFORM
----------
TUESDAY, MAY 2, 2023
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:03 a.m., in
Room 216, Hart Senate Office Building, Hon. Richard J. Durbin,
Chair of the Committee, presiding.
Present: Senators Durbin [presiding], Whitehouse,
Klobuchar, Coons, Blumenthal, Hirono, Booker, Padilla, Ossoff,
Welch, Graham, Grassley, Cornyn, Lee, Cruz, Hawley, Cotton,
Kennedy, Tillis, and Blackburn.
OPENING STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Chair Durbin. This meeting of the Senate Judiciary
Committee will come to order. Today, the Senate Judiciary
Committee considers the issue of Supreme Court Ethics Reform.
Being a Federal judge is a position of great honor and
power, but above all, it is public service. We entrust judges
with administering equal justice under the law. It is critical
to our democracy that the American people have confidence that
judges cannot be bought, or influenced, and that they are
serving the public interest, not their own personal interest.
Over the course of several decades, Congress and the
judicial branch have created a system of ethics laws and
standards for Federal judges that lay out the clear rules of
the road. These rules promote transparency and disclosure. They
place guardrails on conflicts of interest, provide mechanisms
for investigation and enforcement, and ensure accountability
for misconduct. They strengthen faith in the fairness of the
courts and the judges who serve on them.
We are here today because the Supreme Court of the United
States of America does not consider itself bound by these
rules. I invited the Chief Justice to join this conversation.
Last week, he sent me a letter declining to testify at today's
hearing, and he said, quote, ``separation of powers concerns
and the importance of preserving the judicial independence.''
The reality is that sitting Justices have testified at 92
congressional hearings since 1960. And I even offered the Chief
Justice the opportunity to designate someone else on the Court
to testify. But I'm more troubled by the suggestion that
testifying to this Committee would somehow infringe on the
separation of powers or threaten judicial independence. In
fact, answering legitimate questions from the people's elected
representatives is one of the checks and balances that helps
preserve the separation of powers.
In his letter last week, the Chief Justice also sent what
he called a Statement of Ethics Principles and Practices. It
was a document that was attached to his letter. It is an
extraordinary document, not in a good way. It makes clear that
while the Justices are fine with consulting with certain
authorities on how to address ethical issues, they do not feel
bound by those same authorities.
Much of the document explains why Justices think they
should not be treated the same as other Federal judges when it
comes to ethics, and it stresses that recusal decisions are
made by individual Justices alone, with no review of their
discretion. The Chief Justice's letter and Statement of
Principles are a defense of the status quo, but they are
oblivious to the obvious.
Last month, we learned about a Justice who for years has
accepted lavish trips and real estate purchases worth hundreds
of thousands of dollars from a billionaire with interest before
the Court. That Justice failed to disclose these gifts and has
faced no apparent consequences under the Court's ethics
principles. That Justice claims that lengthy cruises aboard a
luxury yacht are personal hospitality and are exempt under
current ethical standards from even being reported.
The fact that a Texas billionaire paid more than $100,000
for a Justice's mother's home also seems to be an acceptable
example because the Justice insists that he lost money in the
transaction. How low can the Court go? One of our witnesses
today is going to say that what I just described to you is
hallucinating misconduct. I think it's pretty clear to most
objective people this is not the ordinary course of business,
nor should it be a standard for those of us in public service.
We wouldn't tolerate this from a city council member or an
alderman. It falls short of ethical standards we expect of any
public servant in America. And yet the Supreme Court won't even
acknowledge it's a problem. The Chief Justice's letter doesn't
mention it. Meanwhile, the rest of the Federal judiciary, and
the executive and legislative branches have codes of conduct
designed to prevent even the appearance of fraud, abuse, or
corruption.
[Poster is displayed.]
Chair Durbin. As this chart tells us, the Supreme Court is
an outlier on the basics.
This is untenable. Ethics cannot simply be left to the
discretion of the Nation's highest court. The Court should have
a code of conduct with clear and enforceable rules so both
Justices and the American people know when conduct crosses the
line. The highest court in the land should not have the lowest
ethical standards. That reality is driving a crisis in public
confidence in the Supreme Court. The status quo must change.
For those who might suggest that my concern is driven by
judicial activism against the current Court's conservative
philosophy, I and other Members of this Committee wrote the
Chief Justice 11 years ago and urged the Court to adopt a code
of conduct. I'm going to put the copy of that letter from
February 13, 2012, into the record.
[The information appears as a submission for the record.]
The Supreme Court should step up and fix this themselves.
For years they've refused. And because the Court will not act,
Congress must. Today we'll hear from a panel of expert
witnesses about the kinds of reforms that are needed. And let's
be clear, Congress not only has the authority to legislate in
this area, but the responsibility.
Taxpayers' dollars pay for our Federal judiciary, including
the Supreme Court. And Congress passes many laws that shape the
High Court, from the annual spending bills that pay the
Justice's salaries, to the Federal statute that establishes the
words of the oath of office the Justices take.
I appreciate the Chief Justice responding to my letters,
and responding to questions from my Democratic colleagues that
I sent about the Statement of Principles, but the answers we
received further highlight the need for meaningful Supreme
Court ethics reform. We have the right and rationale to enact
such reform, and that's what we will pursue.
I want to say that this hearing is being held jointly with
the Full Committee and the Subcommittee on Courts, chaired by
Senator Whitehouse, who, joined with Senator Kennedy, I
believe, in making opening statements. At this time though, I
turn it over to the Ranking Member, Senator Graham.
OPENING STATEMENT OF HON. LINDSEY O. GRAHAM,
A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA
Senator Graham. Thank you, Mr. Chairman. I, too, have
expressed a desire for the Court to be more transparent. To
have rules that the public can relate to. I think we've been
talking about that for quite a while. I have never suggested
that the Congress should take over the Court's ability to
regulate itself. I do not believe that is wise.
And the letter that was received by the Committee was not
just signed by Justice Roberts. It was signed by all of the
Judges. All of them have the same concern. Not just one. So
where do we go and what are we trying to do?
I think here's what you're trying to do on the Democratic
side. Remember when Senator Schumer went to the Court and
started yelling at everybody in the Court? Not everybody, just
pretty much our folks.
[Poster is displayed.]
Senator Graham. ``I want to tell you, Gorsuch. I want to
tell you, Kavanaugh. You have released the whirlwind, and you
will pay the price. You won't know what hit you if you go
forward with these awful decisions.''
Awful decisions, we all have been in the boat of getting an
outcome from the Supreme Court we wouldn't like.
But the Majority Leader of the United States Senate went
before the Court, literally out in front of it, and threatened
two Judges. And Maxine Waters says, ``You ain't seen nothing
yet.'' So we can talk about ethics, and that's great. But we're
also going to talk about today of a concentrated effort by the
left to delegitimize this Court and to cherry-pick examples to
make a point.
The New York Times wrote an article a couple of days ago
suggesting that George Mason Law School was up to an effort to
take over the Court by lavishing them with trips and
influencing their decision-making process by sponsoring trips
overseas while they were on break.
The New York Times did not tell us about Justice
Sotomayor's travel to Florence, Italy. They did not tell us
about efforts. Justice Kennedy took a 3-week multi-trip to
Salzburg, Austria; San Francisco; Aspen, Colorado--paid for by
the Aspen Institute and University of the Pacific. Justice
Sotomayor and Justice Ginsburg traveled to Florence, Italy, on
the dime of the New York University.
Justice Jackson was reimbursed by the University of
California, Berkeley, in 2016 and 2014 for traveling to the
Aspen Institute. Chief Justice Roberts was reimbursed for
travel to London to teach a class on the history of the Supreme
Court to students of the New England School of Law. So
universities throughout this country have been paying for trips
of judges.
But if you read The New York Times, you wouldn't know that,
would you?
[Poster is displayed.]
Senator Graham. I can't say I read The New Republic, but
this is a headline: ``The Democrats Need to Destroy Clarence
Thomas's Reputation.'' That's sort of what we're here about.
Well, it's not going to work. This assault on Justice Thomas is
well beyond ethics. It is about trying to delegitimize a
conservative Court that was appointed through the traditional
process.
Your response has been to pack the Court. Virtually every
Member of the Democratic Caucus, except maybe one or two, are
for expanding the number of Judges to dilute the conservative
majority that exists today. So, Mr. Chairman, from our point of
view, this is not going to work. You can write all the articles
you want to write, you can take all the shots at the
conservative Justices you want to take, you can picket before
their houses, and it's not going to stop people from doing
their job.
This is an unseemly effort by the Democratic left to
destroy the legitimacy of the Roberts Court. It's put people at
risk. It's put their personal safety at risk. And if you want
to talk about making the Court a better institution, I'll be
glad to work within that regard. If you want to talk about
destroying the Court, count me out.
And about conflicts of interest, Justice Kagan, who's a
fine person, was the dean of Harvard Law School. She's raised a
half a billion dollars for the law school when she was dean.
That's sort of her job. After she left, she's been trying to
raise money for Harvard Law School. There's a case involving
Harvard before the Court. She's not going to recuse herself.
And I'm not saying she should. I'm just saying there's a very
selective outrage here.
And from our point of view on this side of the aisle, we're
going to push back as hard as we can and tell the American
people the truth about what's going on here. This is not about
making the Court better. This is about destroying a
conservative Court. It will not work.
Chair Durbin. Thank you, Senator Graham. I might note that
the letter that I sent 11 years ago to the Court was certainly
not any indication of current feelings about Court opinions.
Another person who's been on this subject for many years is the
Chairman of the Courts Subcommittee, Sheldon Whitehouse of
Rhode Island. I recognize him now.
OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,
A U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Senator Whitehouse. Thank you, Chairman. We are here today
because the Supreme Court is playing out of bounds of the
ethics rules for Federal judges. Justices read the ethics rules
in unique and eccentric ways, and when they're caught out of
bounds, they refuse to allow any investigation of the facts.
The personal hospitality problems I've been pursuing began
with Justice Scalia, who took more than seven dozen undisclosed
hunting vacations. Most people know of two. The one where he
was on the Air Force Two manifest with Dick Cheney, and the one
where he died. There were 70-plus more.
It was systematized. Some intermediary would ask the owner
of an expensive resort, often a commercial property, to extend
to Scalia a personal invitation to the resort, even where the
owner was someone he'd never met. Scalia treated as personal
hospitality because of the personal invitation and failed to
disclose the vacations. Gun industry advocates, fossil fuel
folks, and Republican political figures often tagged along. No
reasonable reading of the term personal hospitality would cover
this. But the Supreme Court let this go on for years.
When I challenged the Court about this practice, Exhibit 1,
I got a blow-off letter, Exhibit 2, basically, ``Nothing to see
here,'' so then I asked the circuit courts what they thought
about this conduct. I went 0 for 13 on answers--oh, that would
be Exhibit 3. I went 0 for 13 on answers so I then sent another
letter saying I hope their silence didn't indicate some kind of
coordinated obstruction, Exhibit 4.
I also scheduled a Subcommittee hearing. Presto, I was told
the Financial Disclosure Committee would examine how the
exemption was interpreted, that's Exhibit 5. Almost a year
later, 2 weeks before the recent news about Justice Thomas
broke, the Judicial Conference updated its guidance to clarify
that this sort of nondisclosure violates the law, Exhibit 6.
I have no evidence that any Federal judge outside the
Supreme Court ever used the personal invitation trick. And the
Judicial Conference, made up of other judges, firmly shut it
down. Regular judges would be loath to use that trick because a
complaint about it would go into a proper process and would be
investigated and measured against the law and the ethics code.
And a conclusion would be reached. And that conclusion could be
embarrassing.
Only Supreme Court Justices refuse to allow their conduct
to be investigated or reviewed. My bill would fix that. Here's
an example of the no investigations problem. The key fact to
determine whether Justice Thomas was bound by law to recuse
himself from the first January 6 Committee case, was what he
knew about his wife's insurrection activities and when he knew
it.
On that fact, the lawfulness of his initial recusal
decision turns. Yet Thomas has never been officially asked that
question. It's a cover-up in plain view. The Supreme Court
alone among Federal courts is okay with that. My bill would fix
that.
Which brings us to Justice Thomas' recent nondisclosure of
supposed personal hospitality from a right-wing billionaire and
its problems. First problem, private jet travel is not in the
personal hospitality exemption, which is limited to food,
lodging, and entertainment, Exhibit 7--some textualist, by the
way.
[Poster is displayed.]
Senator Whitehouse. Second problem, Thomas said it was okay
because he'd asked colleagues. But that Financial Disclosure
Committee, it's there to ask about financial disclosure.
Setting aside that its name should give a clue, Thomas knew the
Committee existed because concerns about his yacht and jet
travel gifts from this billionaire were referred there in 2011,
after some of these gifts were first revealed in this New York
Times story, Exhibit 9.
[Poster is displayed.]
Senator Whitehouse. Third problem, there's no legal way not
to disclose the property acquisition in Georgia.
[Poster is displayed.]
Senator Whitehouse. Fourth problem, some of this personal
hospitality involve people dedicated to turning the Court into
a tool for right-wing billionaires, namely Leonard Leo. This
guy doesn't have business before the Court, his business is the
Court. This disclosure mess has again been referred to the
Financial Disclosure Committee, which raises the question of
the previous referral to that same Committee of the same
billionaire's gifts to Thomas of yacht and jet travel.
The rules seem to require the Committee to report its
findings to the Judicial Conference. The records of the
Judicial Conference are public, and the records of the Judicial
Conference contain no mention of any such report. So what
became of the 2011 referral? Did anyone intervene? Is the
Committee still considering the 2011 referral more than a
decade later? There is much yet to learn. Which is why last
week, I sent a letter to the courts asking for further answers,
Exhibit 10.
Three things are needed to fix all this--better
enforcement, better recusal rules, and better disclosures. My
bill would do all three. I thank Chairman Durbin for this joint
hearing and look forward to getting to the bottom of this mess.
Until there is an honest ethics process at the Supreme Court,
these messes will continue. The Court has conclusively proven
that it cannot police itself. Nemo judex in sua causa. I ask
unanimous consent that my exhibits be made part of the record.
[The information appears as submissions for the record.]
Chair Durbin. Without objection. We now will hear from
Ranking Member of the Courts Subcommittee, Senator Kennedy of
Louisiana.
OPENING STATEMENT OF HON. JOHN KENNEDY,
A U.S. SENATOR FROM THE STATE OF LOUISIANA
Senator Kennedy. Thank you, Mr. Chairman. Americans may be
poorer under the Biden administration, but they are not stupid.
They know what's going on here. I remember the Democratic
Leader's words of March 4th, 2020, on the steps of the United
States Supreme Court like they were yesterday, ``I want to tell
you, Gorsuch,'' he said--not Justice Gorsuch--Gorsuch. ``I want
to tell you, Gorsuch. I want to tell you, Kavanaugh, you have
released the whirlwind and you will pay the price. You won't
know what hit you if you go forward with these awful
decisions.'' Wow. Just, wow.
I think Matthew 12:36 is correct, ``For by thy words you
shall be justified, and by thy words you shall be condemned.''
Now, the sad truth is that some, not all, some of my Democratic
colleagues have been on a crusade to undermine the United
States Supreme Court's legitimacy and the credibility of the
Federal judiciary for years.
Today's hearing is just the next chapter in their Federal
power grab, and they've invited cameras. It's worth remembering
the very real persecution that some Democrats have levied on
very good people. It started with the savage destruction of
Professor and Judge Robert Bork, which even The Washington
Post, for God's sakes, The Washington Post, said was a case of
sentencing first, verdict afterwards. In other words, they gave
him a fair and impartial firing squad.
Then we saw the high-tech lynching of Justice Clarence
Thomas. Then, for the first time in history, they weaponized
the filibuster to kill Mr. Miguel Estrada's nomination and they
also demonized Justice Janice Rogers Brown, a very fine person.
When the United States Senate confirmed three new Supreme
Court Justices, which the loon wing of the Democratic Party
loathed, the campaign of threats ratcheted up. You remember the
shouts, ``Let's pack the Court,'' they said, ``Let's pack the
Court.''
And the political threats of some of the highest officials
in our Government fueled physical threats against the Justices.
And we know that. ``You have released the whirlwind,'' the
Democratic Leader said. Incensed protesters took to the
streets, not outside Congress, not outside the Court, but
outside the homes--the homes of Justice Roberts, Justice
Kavanaugh, Justice Thomas, and Justice Barrett.
Federal law prohibits this intimidation, but the Biden
Justice Department allowed it. ``You will pay the price,'' the
Democratic Leader said. In that spirit, angry protesters
publicized the location of the school that Justice Barrett's
children attend. ``You won't know what hit you,'' the
Democratic Leader said. A man with a gun, ammunition, knife,
pepper spray, and zip ties went to a Justice's home to
assassinate him. Actually, his stated goal was to murder three
Justices. Not so suddenly, the ends justified the means for
activists, even inside the Court itself.
The Dobbs decision was not leaked by a left-wing blogger.
Why? That's worth asking? You don't need to be Einstein's
cousin to figure it out. They aren't getting their way. They
aren't getting their way, so they want to change the rules. But
the Constitution isn't a game, folks. And now some Democrats
want Congress to override the Supreme Court of the United
States and apply rules to its Justices.
The constitutional separation of powers means that no
branch of the Federal Government can dictate how another should
govern itself. That's blackletter law. Now, why? This is to
protect the people from abuse. The Framers insulated the
Federal judiciary from political control to ensure that the
Justices would decide cases impartially. Impartially. Without
fear of the kind of retaliation that fills the pages of some,
not all, but some left-of-Lenin Democrats' playbook.
Do my colleagues want the United States Supreme Court to
tell Congress how to police itself? Even if Congress wrote a
code of ethics for the Supreme Court, the Court could rightly
rule that code is unconstitutional. None of the laws we make
here trump the United States Constitution. What's more, some
Democrats want to use the lower courts as a cudgel against the
highest court in the land by giving circuit judges the power to
rule on whether Justices should recuse themselves.
Consider the conflicts of interest and the confusion that
that would breed. Unless you peaked in high school, you must
know they will be breathtaking. Now, the absence of an ethics
code written by Congress in statute doesn't mean that Justices
lack guidance or accountability. Justices and judges routinely
consult the existing code of conduct, and Federal law already
requires recusal in certain circumstances like bias or
financial interest.
We all know that. The Justices are also subject to strict
financial disclosure rules just like my colleagues here. Not
only is this Democratic proposal unconstitutional, it is
unnecessary. The attacks on conservative Justices are targeted.
They're exaggerated. The alarmism is affected. The danger isn't
that rogue Justices are operating without ethics. It's that
Democrats aren't winning every fight, and they find that
reality intolerable.
I've been disappointed by Supreme Court opinions too, but
my Democratic colleagues should fill out a hurt feelings report
and move on for the sake of the Constitution. Look, the agenda-
driven story here is that Justice Thomas has a rich friend who
had no business before the United States Supreme Court.
For context, let's recall that history is littered with
examples of public officials failing to disclose their every
transaction. We can acknowledge it's required by law. It is. We
can acknowledge it's the right thing to do. It is. But we can
do that without maligning each Justice's motives and the entire
institution's credibility, for God's sakes.
You know who else amended their disclosures because of
inadvertent admissions? Justice Ruth Bader Ginsburg, Justice
Stephen Breyer. Two good people. Justice Jackson made multiple
amendments 3 days--3 days after President Biden nominated her.
Not one Senator brought that up during her confirmation
hearings. Not one of my colleagues here walked into her
hearings with the buckets of mud that they've thrown against
Justice Thomas. Not one. Nor should we have.
In the last month, some, not all, but some Democrats and
their media allies have hyped up attempted hit pieces on every
Republican-appointed Supreme Court Justice except for one:
They've tried going after Justice Kavanaugh for buying baseball
tickets; Justice Alito for having dinner with people who
gossip; the wife of Chief Justice Roberts for hiring good
lawyers; Justice Gorsuch for selling land in an LLC which he
properly disclosed to a major donor to the Democratic Party,
for God's sakes, who he's never even met; and Justice Thomas
for having a rich friend. Justice Barrett, if you're listening,
I hope you don't have library books overdue. If recent history
is any indicator, you're next.
Today's hearing is an excuse to sling more mud at an
institution that some, not all, some Democrats don't like
because they can't control it 100 percent of the time and
that's a fact, and everybody in this hearing room knows that.
Until they get the outcome they want in every case, I fear they
are going to continue to slander it in an effort to take
control of it. And I pray to God I am wrong. Thank you, Mr.
Chairman.
Chair Durbin. Thank you, Senator Kennedy. I will repeat
what I've said before because I think it bears repeating.
Violence against any public official, right or left, Democrat,
Republican, or Independent is unacceptable. We have tried in
this Committee to pass legislation to make that point clear and
enforceable under the law. When it comes to the Supreme Court
Justices and others, we have an obligation to protect them. And
it was Attorney General Merrick Garland who has provided round-
the-clock security for Supreme Court Justices from the U.S.
Marshals at their home, which I think is entirely proper. So
there's no question about the bipartisan commitment to their
safety.
At this point, we'll introduce the three Majority witnesses
and turn it over to Senator Graham to introduce the Minority
witnesses.
The Honorable Jeremy Fogel served as U.S. District Judge
for the Northern District of California from 1998 until 2018.
From 2011 to 2018, served as Director of the Federal Judicial
Center, the research and education agency of the judicial
branch. It supports the efficient, effective administration of
justice. Judge Fogel served from 2004 to 2011 on the Judicial
Conference Committee on Financial Disclosure. Before his
confirmation to the Federal bench, he was a State court judge
in California.
Kedric Payne is the vice president, general counsel, and
senior director of ethics at Campaign Legal Center. Previously
advised in executive branch ethics law as deputy general
counsel at the U.S. Department of Energy; enforced legislative
branch ethics laws and standards of conduct as a deputy chief
counsel at the Office of Congressional Ethics; clerked on the
Southern District of New York, practiced law at Cravath,
Swaine; and I want to congratulate you on your brand-new baby.
Two-weeks-old. I can imagine how difficult it is to pull
yourself away from the family. We appreciate the fact that
you're here.
Professor Amanda Frost is the John Ewald Professor of Law
at the University of Virginia School of Law. She writes and
teaches in the fields of constitutional law, judicial ethics,
and immigration. She authors the Academic Round-up column for
the SCOTUSblog. Prior to entering academia, served on the U.S.
Court of Appeals for the D.C. Circuit, and worked as a
litigator for Public Citizen. Now, I'll turn to Senator Graham.
Senator Graham. Thank you, Mr. Chairman.
We have former Attorney General Michael Mukasey. Judge
Mukasey served as Attorney General of the United States from
November 2007 to January 2009, where he oversaw the Department
of Justice and advised on critical issues of domestic and
international law. Following his time as Attorney General,
Judge Mukasey returned to private practice in New York, focused
primarily on internal investigations, independent board
reviews, and corporate grievance. From 1988 to 2006, Judge
Mukasey served as a district judge of the United States
District Court for the Southern District of New York, becoming
chief judge in 2000. From 1972 to 1976, he served as assistant
U.S. attorney for the Southern District of New York, and as
chief of the Offices of Corruption Unit from 1975 to 1976. He
received his law degree from Yale in 1967, and his B.A. from
Columbia College in 1963.
Mr. Thomas Dupree is a partner at Gibson, Dunn & Crutcher.
Thomas Dupree is a partner, and co-chairs the firm's nationwide
appellate and constitutional law practice group. He's a
seasoned litigator who has argued in all 13 circuits as well as
the U.S. Supreme Court. He's previously served at the Justice
Department during the Bush administration. He served as Deputy
Assistant Attorney General for the Civil Division, and later
became the Principal Deputy Assistant Attorney General. He was
responsible for managing the Government's most significant
cases involving constitutional matters, virtually, all of
Federal agencies, The White House, and senior Federal
officials. He has testified for Congress on constitutional
matters numerous times. He has graduated from the Williams
College and the University of Chicago Law School, where he
served as editor at the University of Chicago Law Review. He
clerked for Judge Jerry Smith at the U.S. Court of Appeals for
the Fifth Circuit. Thank you.
Chair Durbin. Thanks, Senator Graham. After the witnesses
are sworn in, they'll each have 5 minutes to make a
presentation. Then Members will have 5 minutes to ask, and I
ask the witnesses to please stand and raise your right hand.
[Witnesses are sworn in.]
So let the record reflect that all five witnesses have
answered in the affirmative. The witnesses will be called in
the order they're seated, and first will be Honorable Jeremy
Fogel. Judge Fogel. Make sure your----
Judge Fogel. Yes. Thank you.
Chair Durbin [continuing]. Mic is on?
Judge Fogel. Got it.
STATEMENT OF HON. JEREMY FOGEL, EXECUTIVE DIRECTOR, BERKELEY
JUDICIAL INSTITUTE AND FORMER U.S. DISTRICT JUDGE FOR THE
NORTHERN DISTRICT OF CALIFORNIA, UNIVERSITY OF CALIFORNIA,
BERKELEY LAW SCHOOL, WASHINGTON, DC
Judge Fogel. Thank you, Chair Durbin, Ranking Member
Graham, Members of the Committee, it's an honor to be here.
Thank you for inviting me. I also want to acknowledge and say
how honored I am to be here with my fellow witnesses. I think
we all have something to contribute to this conversation.
As Chair Durbin said, my name is Jeremy Fogel. I am a
retired judge of the United States District Court for the
Northern District of California. I served as a Federal judge
for 20 years, and for 7 years as Director of the Federal
Judicial Center.
And relevant to what we'll be discussing today, I worked
very closely with the Judicial Conference and its committees
when I was FJC Director. My primary responsibilities were
overseeing policy-related research and educational curriculum
for the judicial branch, including judicial education about
ethical standards and financial reporting requirements.
The Chief Justice chaired our governing board. I had
regular contact with him and with the circuit and district
courts' leadership. And I'm very pleased to say I have
collegial relationships with judges all over the country of all
judicial philosophies. It's something that's very meaningful to
me.
Before being appointed as Director of the Federal Judicial
Center, I was a member of the Judicial Conference Committee on
Financial Disclosure for 7 years. I acquired substantial
knowledge of the Ethics and Government Act and its application
to judicial officers, including the redaction authority that's
used to protect filers and their families.
So the principal point of my testimony is that I think the
Court does need greater transparency in the way it engages with
judicial ethics, and in this, I agree with Senator Graham. I
want to be clear about why I'm here today. I am not here to
question or criticize the conduct of any Justice, and it's not
my purpose to take sides in a political debate which is an odd
thing to say when one is in Congress, but it's truly where I'm
coming from.
I spent 40 years of my professional life avoiding
partisanship. I treasure my relationships with judges across a
broad range of political persuasions, and I have great respect
for the Court as an institution, and for the Justices with whom
I've had the privilege of interacting in the course of my
career.
I'm particularly grateful to Chief Justice Roberts for his
wise counsel and steady support during my time at the FJC. From
a personal standpoint, given those relationships, and given the
respect I have for the judges and Justices, I know it's awkward
for me to be here. And I do not doubt the sincerity of the
submissions that the Chief and the Justices of the Court have
made to this Committee. I think they are given in great
sincerity.
I think I'm here because I think more is needed. Over the
decades, the Court has been our most trusted Government
institution, far outpacing the legislative and executive
branches in polls measuring public confidence. And that status
has eroded significantly. Only a decade ago, two-thirds of
Americans said they had confidence in the Court, and now it's
exactly opposite. About two-thirds say that they have little or
no confidence in the Court. And some of that erosion has had to
do with controversy surrounding decisions. I think one would be
naive not to say that.
But there are also other factors at work. There's a
persistently hyperpartisan political environment, an
increasingly contentious confirmation process, the near
disappearance of civics curriculum from our schools and the
pervasiveness of social media as a source of misinformation and
disinformation about the law, the judicial process, and the
judges and Justices to whom that process is entrusted. In this
fraud environment, I believe that the absence of a formal
structure for defining and validating the ethical rules
governing the Supreme Court Justices is untenable.
Too many Americans already think that the Justices decide
cases based on their political preferences and alliances rather
than the law. Lack of clarity about the Justices' ethical
obligations only feeds that perception. Every other judicial
officer in our country, whether State or Federal, and
regardless of the type of court on which they serve, is guided
by explicit ethical standards and is subject to at least some
degree of oversight to assure their compliance. The same is
true for virtually all officials in the legislative and
executive branches.
While people familiar with the inner workings of the
Federal judiciary can read the Court's submission of this
Committee and admire, as I do, the care and nuance with which
it has been crafted, I fear that for everyone else, the
processes and considerations that that submission details are a
black box.
How and when do the Justices consult the sources described?
What weight do those sources receive? Who, if anyone, not
affiliated with the Court is directly available to offer
detached and independent judgment and advice? And most
importantly, what procedures have been placed to assure an
appropriate degree of transparency that's consistent with the
principles of decisional independence and judicial security?
In his year-end report in 2011 and in his recent
submission, the Chief Justice has explained how the Supreme
Court differs from other Federal courts, and why it would be
inappropriate for it simply to adopt the identical code of
conduct applicable to all other Federal judges. I agree with
him about these points, but that doesn't mean that the Court
should have no formal code at all. That it couldn't adopt a
modified code that accounts for these differences.
For example, given the significantly greater impact of
recusals on a Court with only nine members and no ability to
draw upon potential replacements, the potential provisions of a
modified code might identify and weigh factors for and against
recusal differently.
Because of its unique position in the judicial branch, and
the need to avoid a review procedure that might compromise its
decisional independence or the security of its members, the
Court could designate a panel of retired judges with deep
experience and unquestioned integrity to provide it with
confidential advice as to whether an act, omission, or
relationship raises an issue under the code.
The point is that a formal code of conduct would provide
clearly stated, visible rules and procedures to which the
Justices are expressly committed. Adoption of such a framework
wouldn't make the controversies about the Court or its
decisions disappear, but it would be a statement to the
American people that their faith in the Court's adherence to
core ethical principles matters. It also would reflect a
recognition that given the outsized importance of their role,
the Justices should--in the words of former judge and noted
conservative Michael Luttig--be bound by higher standards than
other Justices.
Having seen firsthand the impressive ability of the Court
in the Judicial Conference to develop rules of procedure that
have made our Federal courts a model for other legal systems
both here and abroad, I have every confidence that such an
effort would produce a carefully balanced framework of high
quality and would represent a significant step forward. Thank
you very much for the honor of appearing before this Committee.
[The prepared statement of Judge Fogel appears as a
submission for the record.]
Chair Durbin. Thanks, Judge Fogel. General, Judge Mukasey,
welcome back to the Senate Judiciary Committee. Please proceed.
STATEMENT OF HON. MICHAEL B. MUKASEY, FORMER UNITED STATES
ATTORNEY GENERAL AND FORMER U.S. DISTRICT JUDGE FOR THE
SOUTHERN DISTRICT OF NEW YORK, NEW YORK, NEW YORK
Judge Mukasey. Thank you, Mr. Chairman. Chairman Durbin,
Ranking Member Graham, Members of the Committee, I thank you
for inviting me to testify today, and to share my thoughts on
issues surrounding Supreme Court Justices' ethics rules, and
their financial disclosures.
I am a retired partner and of counsel at the law firm of
Debevoise & Plimpton. The views I express today are my own.
They do not represent the views of the firm. I served as
Attorney General under President George W. Bush from 2007 to
2009, and as a U.S. District Judge for the Southern District of
New York from 1988 to 2006.
I would like to deal today with two topics. One is policy
principles relating to Supreme Court governance. The second
relates to particular issues that have become current insofar
as it's possible to determine the facts from publicly available
information.
As to policy, I believe that basic principles of the
separation of powers mean that the Court, as a separate branch
of Government and the only Court specifically provided for in
the Constitution, is solely responsible for its financial
disclosure and ethics rules. Just as Congress establishes the
rules that govern the conduct of its Members, and just as
conflict-of-interest statutes that apply generally to
Government employees do not apply to the President or the Vice
President. It's basic to the structure of our Government that
the executive, legislative, and judicial branches remain
separate.
It is the Supreme Court and not the Congress that has the
constitutional prerogative to decide whether to adopt a formal
code of conduct governing the individual Justices. It should go
without saying that if Congress cannot compel the Court to
adopt a formal code of conduct governing the individual
Justices, neither may Congress prescribe such a code itself.
A law compelling the Court to adopt such a code or
purporting to impose one legislatively, would violate the
principle of separation of powers, and would also be unworkable
inasmuch as there is no authority other than the Justices
themselves to apply such a code.
I am told of proposals to delegate issues of recusal of
individual Justices to a Court employee, or to a panel of
retired judges. Here, my own experience as a judge may be
instructive. Recusal decisions are fundamentally judicial
decisions, and a judge is as much obligated not to recuse when
recusal is not warranted as to recuse when recusal is
warranted. This is especially compelling at the Supreme Court
level because Justices cannot be replaced by other judges as if
the Court were a professional baseball team calling up minor
league players to fill gaps in the roster.
That's not to say that there are no principles and
practices that in reality, in life truth, govern the conduct of
the Justices. As Chief Justice Roberts wrote to the Chair of
this Committee on April 25, there is a Statement of Ethics
Principles and Practices to which every single one of the
current Justices have subscribed. And indeed, he attached that
statement to his letter. That statement itself covers the
sources judges use when analyzing ethical issues in general,
and discusses a variety of topics including financial
disclosure and recusal in particular.
The statement is more than two single-space pages in
length, and I would not burden the Committee with a recitation
of its terms or purport to summarize it. However, the statement
notes that since 1991, Supreme Court Justices have followed the
substance of the Judicial Conference Committee on Financial
Disclosure Regulations that govern lower court judges, and file
the same annual financial disclosure reports as other Federal
judges. And by recent legislation signed by the President,
those reports are public.
The statement itself notes that the Judicial Conference
Committee reviews information in these reports and requests
additional information when appropriate. It also provides
ongoing guidance. And in March, it provided additional
clarification on the scope of, quote, ``personal hospitality
exemption'' to the disclosure rules. That clarification
provides an easy transition to particular issues that relate to
Justice Thomas, and I base my discussion of those issues on
information generally available to the public.
Justice Thomas has said that he and Harlan Crow have been
close friends for many years, over 25 years. That Mr. Crow is
in the construction business, does not have matters before the
Court. There's one trivial exemption to the last point, which I
mention only because it shows how far some critics have gone.
It appears that in one case, a business with which Mr. Crow is
affiliated opposed an application by its adversary for a writ
of certiorari. And the writ was denied.
Such applications are reviewed and summarized by a panel of
clerks, not by the Justices themselves. It takes four votes to
grant certiorari. So that if Justice Thomas had recused himself
in that case, the result would have been identical. Denial of
certiorari.
Justice Thomas has said that when accepting travel and
vacation invitations from Mr. Crow, he consulted others,
including colleagues, on whether applicable rules--rules
applicable at the time--would prescribe including those in his
financial disclosure forms. He was advised that the personal
hospitality exemption applied and that such accommodations need
not be included.
As the Chief Justice noted, the Judicial Conference
Committee recently provided a clarification of that exemption
that appears to confirm that the advice that Justice Thomas
followed earlier was correct. And Justice Thomas has said that
he will be guided by the new clarification and will include
such travel and vacation accommodations in all future reports.
In addition, Mr. Crow bought from Justice Thomas and his
family three parcels of property in Savannah, Georgia. The
Savannah parcels had included two rental properties, but those
were torn down. Justice Thomas' mother, who was at least in her
mid-80s at the time of the transaction, lives in the remaining
house which has been improved over the years, and which did not
have to be reported as a rental property because it was the
Justice's mother's home. She holds a lifetime occupancy right
and lives in the property to this day.
Mr. Crow has said that he purchased the childhood home of
Justice Thomas with the intention to convert it into a museum
of sorts to tell the story of Justice Thomas' life. The total
for the parcels was $133,600, of which a third was Justice
Thomas' share. That represented a capital loss to Justice
Thomas.
However, because the transcript was for more than $1,000,
Justice Thomas was obligated to report it on his financial
disclosure form, but did not do so because he mistakenly
believed that he did not have to report a transaction in which
he suffered a loss. He has said he intends to amend the
financial disclosure form for the relevant period.
It bears mention that Justice Thomas will not be the first
Justice to amend his financial disclosure forms. Justices
Breyer and Ginsburg are among those who have done so without so
much as the batting of an eye and no doubt will not be the
last.
Recent criticism of Justice Gorsuch are also meritless. He
sold an interest in a vacation home to a lawyer he had never
met, who is a large contributor to Democrats, whose firm has
litigated a dozen cases before the Court, winning eight and
losing four. The merits of these cases have not been discussed
by these critics, nor have they indicated whether Justice
Gorsuch wrote an opinion in any of them, cast a deciding vote,
and if so, with what result. The lawyer in question says he did
not know that Justice Gorsuch was the seller until an offer had
been made. That's the story. Period.
Criticism has progressed, if that's the word, from
meritless as to Justices Thomas and Gorsuch, to ludicrous as to
Justice Alito and others with the claim that the academy is
exerting an improper conservative influence on the Court by
hosting conservative Justices to teach or lecture.
Apart from the history of similar invitations to liberal
Justices, anyone even slightly familiar with the current
political climate at law schools such that even Scalia Law
School at George Mason University had to host Justice Alito by
Zoom rather than in person due to security concerns. Anyone
familiar with that history knows this claim is ridiculous on
its face.
The dark and intense criticism directed at Justices over
these transactions, the acceptance of trips and vacations from
a wealthy, close friend with no business before the Court
pursuant to a since amended personal hospitality exception to
the Federal disclosure rules, and a property sale to the same
friend at a loss, the arm's length sale of a vacation home is
impossible for me to square with the professed concern for the
integrity of the Court by those making the criticism.
That integrity rests on the dedication of each judge, each
Justice to fulfill his or her oath by deciding cases on their
merits as the Justices see those merits, even when they see
them differently from one another. That integrity remains
intact. If the public has a mistaken impression that the
integrity of the Court has been damaged, the fault for that
lies for those who continue to level unfair criticism at the
Court and its Justices.
It's impossible to escape the conclusion that the public is
being asked to hallucinate misconduct so as to undermine the
authority of Justices who issue rulings with which the critics
disagree, and thus to undermine the authority of the rulings
themselves. Thank you very much.
[The prepared statement of Judge Mukasey appears as a
submission for the record.]
Chair Durbin. Thanks, Judge. Mr. Payne.
STATEMENT OF KEDRIC PAYNE, VICE PRESIDENT, GENERAL COUNSEL AND
SENIOR DIRECTOR OF ETHICS, CAMPAIGN LEGAL CENTER, WASHINGTON,
DC
Mr. Payne. Thank you. Thank you for the opportunity to
appear before you today. The purpose of my testimony is to
explain how the ethical standards of the Supreme Court compare
to the ethical standards of the executive and legislative
branches of Government.
This matters because one way to understand where the
ethical standards of the Supreme Court should be reformed is to
first understand the ethical standards that already apply to
other public officials across Federal Government. In
particular, there are four basic ethics provisions that exist
in the executive and legislative branches that do not exist in
the Supreme Court. As a result, the Supreme Court has the
lowest ethical standards in Government.
First, the Supreme Court does not have an internal ethics
enforcement body. Without an internal ethics enforcement body,
the Court does not have one source responsible for providing
ethics advice and for conducting ethics investigations.
Justices rely on ethics advice from random and anonymous
sources instead of in-house ethics experts. This leads to
incorrect and inconsistent interpretations of the law.
Also, investigations of misconduct are extremely rare, and
when they do occur, they are conducted by Court staff who do
not have expertise in investigations or expertise in ethics.
This leads to inadequate reviews of high-profile ethics
matters.
In contrast, the executive and legislative branches have
ethics officials with sole responsibility of providing counsel
and advice to officials, and investigating misconduct. In
Congress, both Chambers have Ethics Committees that provide
training to Members and have the authority to investigate
potential violations. In the executive branch, the Office of
Government Ethics and designated ethics officials at each
agency are able to provide training, counsel, and advice, while
the Inspector General can investigate potential violations.
Second, the Supreme Court does not have a binding code of
conduct. Instead of a binding code of conduct, the Supreme
Court has stated that it voluntarily follows the regulations of
the Judicial Conference while emphasizing that the Judicial
Conference does not have supervisory authority over the Court.
As a result, the Court does not demonstrate a willingness to
hold itself accountable for conflicts of interest or other
ethics issues that are not currently codified in law.
On the other hand, the executive and legislative branches
have adopted codes of conduct and extensive rules that support
public trust in Government.
Third, the Supreme Court does not have meaningful
disclosure of privately sponsored travel. Because of the
limited information that is disclosed with privately sponsored
travel for Justices, there's public criticism of potential
conflicts of interest especially based on the frequency of
these trips and the recreational nature of these trips.
Therefore, all privately sponsored travel by Justices can fall
under a cloud of suspicion even when it's legitimate.
In comparison, the other branches have strong rules to
address this issue. The executive branch heavily restricts
officials from accepting such travel. And in Congress, there
are extensive disclosure requirements required before and after
Members take trips with privately sponsored entities. This
includes the cost of the trips, other attendees of the trips,
and the agenda. This information allows the public to determine
whether there are any potential conflicts of interest.
And finally, the Supreme Court does not have a compliance
procedure for its recusal requirements. The concern is that the
Court is without a procedure for informing the public the way a
Justice decides to recuse or decides not to recuse from a
matter. As a result, the public is in the dark as to whether
the Justice is ignoring a conflict of interest or has a
legitimate explanation for why no conflict of interest exists.
In contrast, again, the executive branch procedure for
determining whether recusals are required includes public
disclosure of detailed ethics agreements between the ethics
lawyers and the senior official to clarify what are the
potential conflicts of interest, and to have a path forward to
eliminate such conflicts.
In conclusion, there may be room to debate specific pieces
of legislation that can reform the Supreme Court effectively,
but there is no room to debate that the Supreme Court has the
weakest ethics rules in Federal Government. Ethics rules in the
executive and legislative branches can serve as models to
improve Supreme Court ethical standards and increase public
trust in the judiciary. Thank you for the opportunity to appear
before you, and I look forward to your questions.
[The prepared statement of Mr. Payne appears as a
submission for the record.]
Chair Durbin. Thank you, Mr. Payne. Mr. Dupree.
STATEMENT OF THOMAS H. DUPREE, JR., PARTNER AND CO-CHAIR,
APPELLATE AND CONSTITUTIONAL LAW PRACTICE GROUP, GIBSON, DUNN &
CRUTCHER, WASHINGTON, DC
Mr. Dupree. Chairman Durbin, Ranking Member Graham, thank
you for inviting me to testify today, and to share my thoughts
on the topics of Supreme Court ethics and disclosure
requirements. I'm a partner at Gibson, Dunn, & Crutcher, and
co-chair the firm's appellate and constitutional law practice
group. I previously served as Principal Deputy Assistant
Attorney General at the United States Department of Justice.
The views I share today are my own.
There are several bills under consideration that would
impose a code of conduct on the United States Supreme Court.
Today, I will focus on Senate Bill 359, the Supreme Court
Ethics, Recusal, and Transparency Act of 2023. But I will
address the salient features of other bills as necessary.
Senate Bill 359 would impose a host of new requirements on
the Supreme Court, as well as on the parties who appear in the
Court and on the lawyers who argue before the Court. Section 2
of the bill orders the Supreme Court to issue a code of conduct
governing the Justices, and to establish procedures for
disciplinary investigations of Justices. Sections 4 and 5
impose on Justices new recusal and disqualification
requirements, and Sections 6 and 7 impose new disclosure
requirements on party and amicus briefs filed in the Supreme
Court or the courts of appeals.
Let me start with the imposition of a code of conduct. This
is an extraordinary mandate that infringes on the separation of
powers, a bedrock principle that underpins our constitutional
democracy. Our Founders well understood the importance of
separating the legislative branch from the judicial branch.
As the Supreme Court has explained, the Framers of our
Constitution lived among the ruins of a system of intermingled
legislative and judicial powers which had been prevalent in the
colonies long before the Revolution and which, after the
Revolution, had produced factional strife and partisan
oppression.
The lesson of this shared experience is reflected in the
words of James Madison, who wrote in Federalist 47 that the
preservation of liberty requires that the three great
departments of power should be separate and distinct. Ordering
the Justices to adopt the code of conduct offends the
separation of powers.
The bill intrudes upon the core function of a coordinate
and co-equal branch of Government. It is the Supreme Court, not
the Congress that has the prerogative under our constitutional
structure to decide whether to adopt a code of conduct that
governs themselves. As Chief Justice Roberts has written,
courts require ample institutional independence. And the
judiciary's power to manage its internal affairs insulates
courts from inappropriate political influence, and is crucial
to preserving public trust in its work as a separate and co-
equal branch of Government.
This bill, and in particular, its provision directing the
Justices to draft a code of conduct, put it out for public
notice and comment, and then adopt it, seems to be animated by
an assumption that the Supreme Court of the United States is no
different than the Department of Agriculture or any Federal
agency that can be commanded by Congress to engage in
rulemaking.
Suffice to say, that is not how the Framers drew it up. The
relationship the Constitution establishes between the Article I
Congress and the Article III Supreme Court is one of co-equals.
The judiciary is not an inferior branch.
The bill offends the separation of power in other ways. It
would compel speech by the Justices by requiring them to post
ethics-related information on the Supreme Court website. It
would require them to publicly disclose internal rules and
guidance from the counselor to the Chief Justice of the United
States. And perhaps most ominously, the bill would require the
Court to establish procedures under which individuals may file
complaints alleging that a Justice of the Supreme Court has
violated the code of conduct or any provision of Federal law.
They could also file complaints alleging that a Justice has
engaged in conduct on or off the Bench, and apparently at any
point in their lifetime that the complainant believes may have,
quote, unquote, ``undermined the integrity of the Supreme Court
of the United States.'' The complaints would then be referred
to what the bill calls judicial investigation panels composed
of circuit court judges who would then sit in judgment of the
accused Justice.
If one were to try to design a scheme that would undermine
Americans' faith in the legitimacy and integrity of the Supreme
Court, these judicial investigation panels would be an
excellent start.
Another bill, Senate Bill 325, entitled the Supreme Court
Ethics Act, charts a similar troubling course. It would task
the Judicial Conference of the United States with issuing a
code of conduct governing Supreme Court Justices. When he
testified before Congress, Justice Kennedy described that very
proposal as legally problematic and structurally unprecedented
because it would empower the Judicial Conference, a group
composed of district and circuit court judges, to make rules
that Supreme Court Justices have to follow.
The bill would also create what it calls an ethics
investigations council charged with investigating Supreme Court
Justices not just for violations of the code of conduct, but
for any conduct alleged to be prejudicial to the ethical,
effective, and expeditious administration of the business of
the Supreme Court of the United States.
Another bill, entitled the Supreme Court Code of Conduct
Act, would similarly create a designated ethics officer who
would process complaints that a Supreme Court Justice has
violated the code of conduct or Federal law, or has done
something that the complainant believes to have been
prejudicial to the administration of justice. The designated
officer would then be required to publish the complaints
against Justices on the Supreme Court's website.
Just as with judicial investigation panels, these proposals
for an ethics investigations council or a designated ethics
officer would damage and debase the institution by encouraging
frivolous and politically motivated attacks on the Court's
integrity.
If you don't like the outcomes of particular cases, well,
attack the ethics of the Justice with whom you disagree and
force them to post your accusations on their website.
Finally, let me close by noting the provisions in the bill,
Senate Bill 359, concerning the recusal and disqualification
procedures for Supreme Court Justices. Adopting these measures
would open the door to a tidal wave of disqualification motions
in virtually every important case.
Round one in all the big-ticket constitutional cases would
be litigation over which Justices are even eligible to hear the
case. Here, too, it is hard to imagine anything more corrosive
to public faith in the Supreme Court than what would become
routine volleys of motions alleging that various Justices are
ethically compromised and must recuse because they accepted a
meal from someone distantly connected to a case.
Allow me to close by saying that the provisions of the bill
I have discussed today seem to be animated by a dark and
distorted perception of our judicial branch. A perception that
is fundamentally at odds with what I have seen in more than 20
years of practice in the Supreme Court and the Federal courts
of appeals.
In my experience, speaking as someone who has argued in
front of hundreds of Federal judges throughout the country, the
men and women on our Federal bench are of the highest
integrity. Even when I disagree with the outcome in a
particular case, I have never doubted for a moment that these
are judges who are striving to do their absolute God-given best
to faithfully interpret the laws and the Constitution of our
great Nation. Thank you.
[The prepared statement of Mr. Dupree appears as a
submission for the record.]
Chair Durbin. Thank you, Mr. Dupree. Professor Frost.
STATEMENT OF AMANDA FROST, JOHN A. EWALD, JR., RESEARCH
PROFESSOR OF LAW, UNIVERSITY OF VIRGINIA SCHOOL OF LAW,
CHARLOTTESVILLE, VIRGINIA
Professor Frost. Chairman Durbin, Ranking Member Graham,
and Members of the Committee. Thank you for inviting me to
testify today. I am a professor of law at the University of
Virginia, and I specialize in constitutional law, judicial
ethics, and the Federal court system. My testimony today will
focus on Congress' constitutional authority to regulate the
ethical obligations of Supreme Court Justices.
But I will begin by making a point on which I know we all
agree. As a constitutional matter, the Supreme Court must
retain decisional independence, meaning that the Justices can
never be penalized for their votes in the cases before them.
But the Court's decisional independence is not the subject
of today's hearing. The subject of today's hearing is the
Justices failure to comply with ethics legislation enacted by
Congress, which explicitly applies to them, as well as
Congress' constitutional authority and power to protect the
integrity of the Federal judiciary through such legislation.
So whenever we have a constitutional question, we look to
three sources. Typically, the text of the Constitution, its
structure, and long-standing historical practice. And all three
confirm that Congress has the constitutional authority to enact
legislation regulating judicial ethics.
The text of Article III of the Constitution requires the
creation of the Supreme Court, but it is otherwise silent as to
the structure and operation of that Court. And, in fact, that
is importantly different from the way the Constitution treats
this branch of Government. Article I, Section 5, gives this
branch authority over its own rules and procedures.
So the Constitution is silent as to how the Supreme Court
shall be structured and delegated that task to this branch of
Government under the Necessary and Proper Clause in Article I.
So, back in 1789, that very first Congress quickly enacted
legislation to bring the Court into existence and to establish
its operations. And it did so in the Judiciary Act of 1789,
which has special constitutional significance because it
reflects the original understanding of the Framers and their
contemporaries.
So that act regulated every aspect of the Court's
operation. It set the size of the Court at six, a quorum for
the Court at four. It provided the Court with a budget and
authorized it to hire personnel. It even assigned the Justices
to serve on lower courts and ride circuit around the country to
do so.
And finally, and most relevant today to our conversation,
they required the Justices to take an oath of office. And it's
almost identical to the oath that the nine today have taken.
Which is that they must treat rich and poor alike, and they
must adjudicate cases faithfully and impartially. And just a
few years after that Act went into effect in 1792, Congress
established the first recusal statute, which for 75 years has
also applied to the Justices.
In other words, as this history lesson teaches, for over
230 years, and for as long as the Supreme Court has existed,
Congress has regulated vital aspects of its operation,
including its ethical obligations. That remains true today when
this Congress controls the size of the Court, the quorum, when
and where it meets, etc.
But most important to today's conversation, this Congress
has enacted laws that regulate the Supreme Court's ethical
obligations. The recusal statute, the Ethics and Government Act
of 1978, and the Ethics Reform Act of 1989. All of these laws
were enacted by Members of Congress who also take an oath to
uphold the Constitution. For hundreds of years, dozens of
Congresses have thought such legislation is constitutionally
proper. To claim that Congress lacks that authority is to
ignore the Constitution's text and structure, as well as this
long-standing practice.
Nonetheless, the view of some seems to be that the Supreme
Court Justices should be accountable to no one. They cite as
support for this remarkable proposition this vague principle of
separation of powers. So the Constitution was carefully
designed to ensure that no branch of Government is entirely
separate and independent from each other.
That is the equally familiar constitutional principle of
checks and balances. In fact, in The Federalist Papers, James
Madison, in the same Federalist Paper cited by Mr. Dupree, goes
on to say that each branch of Government must have partial
control over the others. And that is because, quote, ``ambition
must be made to counteract ambition,'' end quote.
Some Justices today are repeatedly violating the ethics
laws that Congress applied directly to them. This misconduct
requires congressional action to protect the Court from itself.
For all the reasons I have given, Congress has the
constitutional authority to enact such legislation. I look
forward to your questions.
[The prepared statement of Professor Frost appears as a
submission for the record.]
Chair Durbin. Thank you, Professor Frost. Each Member will
have 5 minutes to ask, and I'd like to start with you,
Professor Frost. It's been stated, and I'll say as a preface,
that the reason for this hearing is that so many of us are
unhappy with the decisions of the Supreme Court.
I might state again for the record that my concern about
ethical standards at the Court predate this hearing by many
years. In fact, 11 years. The first letter that I authored
which was signed by several colleagues on the subject to the
Supreme Court, was mailed on February 13th, 2012. The President
at the time, Barack Obama. So I wasn't waiting for this
situation or any Court decision to be interested in this issue.
I think it was timely then and still is today.
The second thing was the argument that we're out to get
certain Justices because they don't rule as we wish. I would
have to say, during the course of the public inquiry involving
Justice Thomas and others, I've heard virtually every Justice
named with some question as to their conduct and activity. Now,
some will say they were harmless activities and no one should
be punished for them, and they certainly wouldn't meet any high
ethical standards.
But I would just add that those of us who are in public
service and bound by ethical standards and codes of ethics are
certainly used to this experience. Every year when we file our
financial disclosure forms, in my case, my income tax returns,
I'm bound to have questions from the press. And I hope most of
them are considered innocent, but legitimate inquiries of a
person in public service.
Professor Frost, a man who submitted a letter for the
record today, Judge Luttig, said of the issues that are before
us, I quote him, ``in complete agreement on Congress'
indisputable constitutional power to legislate ethical
standards of conduct that would be binding as to the
nonjudicial conduct and activities of the Supreme Court.''
You've heard arguments otherwise. I think page 12 of your
testimony which goes into one of the first Acts of Congress,
the Judiciary Act, belies this argument that somehow the
Supreme Court is at a level where Congress can't address it.
Would you comment on that?
Professor Frost. Yes. And I'll also just note that I have
been called to testify on this issue since 2006, and have been
writing about it since 2005. So similarly to your point, this
is not a new issue in response to recent decisions.
So the separation of powers argument, I find, confuses me.
Because, of course, I think we all know from civics classes
separation of powers is, of course, a constitutional principle
which means that the branches should have some separate spheres
of conduct and some separate roles in our Constitution.
But checks and balances is equally important. And the role
of the Congress is to establish the Supreme Court. It's not
just permitted, it's required. The Supreme Court of the United
States is constitutionally mandated under Article III, but
there is no detail about how it is to operate because that was
left to the Congress of the United States under Article I,
Section 8, the Necessary and Proper Clause. And immediately
Congress agreed to do that in the Judiciary Act of 1789, as it
was required to do.
The Congress sets the size of the Supreme Court, that is
not in the hands of Chief Justice Roberts and his colleagues.
Congress establishes the quorum requirement, that is not in the
hands of Chief Justice Roberts and his colleagues.
When this Congress passes a law that says that they must
recuse themselves, the judges and Justices of our Federal
judiciary when there are certain conflicts of interest, the
Justices are not free to say that law doesn't apply to me, I'm
going to sit on that case anyway.
And so what is troubling is, there is an implication in the
recent statement of ethics policies, as well as some previous
statements by the Court that it doesn't think these laws bind
it. And I find that very confusing in light of the text
structure and long history of congressional administration of
the courts.
Chair Durbin. Thank you. Judge Mukasey, I'd like for you to
address one issue. It appears to me that in the early days of
our Republic, an oath had a different meaning than it does
today. In this respect, it is in the swearing in of Members of
Congress, for example, kind of a pro forma exercise.
It would seem the words of an oath in the early days of the
Republic were taken much more seriously. So that when the
Congress set out the oath for members of the Supreme Court,
every judge and Justice, quote, ``solemnly swear or affirm I
will administer justice without respect to persons and do equal
right of the poor and to the rich, and I will faithfully and
impartially discharge and perform all the duties incumbent on
me.''
Those words were written not by the Court, but by the
Congress, enacted by the Congress. Don't you think that raises
a question as to whether or not there is clear authority for
Congress to put together laws that are as specific as this oath
of office?
Judge Mukasey. Respectfully, no, I don't. Prescribing the
oath--which I recall taking when I became a district judge--is
one thing. Prescribing the way in which the Court administers
its business and the way in which a court applies rules
internally is something else.
Part of the problem here is that no rule determines its own
application. It always takes somebody to apply it. And the way
the Court functions internally is a matter to be left to the
Court. In particular, on recusal issues. The law that applies
to recusal issues across the board for Federal courts applies
to Supreme Court Justices as well.
When their impartiality might reasonably be called into
question, they're obligated to recuse themselves. That applies
to district judges, it applies to circuit judges, it applies to
Supreme Court Justices. That is a law of general application
throughout the judiciary. But when we're talking about internal
administration in dealing with their practices, and the way
they administer their cases, I think that's an entirely
different thing.
So I recall taking the oath, but I don't think it means
that Congress has the power to direct that the internal
business of the Supreme Court be conducted in a particular way.
Chair Durbin. Thank you.
Senator Graham.
Senator Graham. Thank you, Mr. Chairman. Are all the
witnesses aware of the fact that when Justice Roberts declined
the invitation of Chairman Durbin, that his letter was signed
by the entire Court? Are all of you aware of that? Mr. Fogel,
do you think that was a wise decision?
Judge Fogel. Thank you, Senator. I think--I said in my
statement that I respect it. I think it was sincere. I think
the problem, and I think it's significant, and I will grant
that, that it was signed by all nine of the Justices. That's
the significance.
Senator Graham. That's my point.
Judge Fogel. Yes. But may I----
Senator Graham. I just want people to understand that the
Court as a whole has a problem with this, whether right or
wrong.
Judge Fogel. I'm sorry, Senator, I just wanted to say one
other thing, if it's all right.
Senator Graham. Sure.
Judge Fogel. I think it's significant that they all signed
it. I think it doesn't suggest that that's all that all of them
would do. It's a point about which they all reached.
Senator Graham. You and Mr. Payne mentioned something that
sort of struck a nerve with me. You know, I'm not into
micromanaging the Court, Judge Mukasey, but when you look at
what other branches do versus the Court, Mr. Payne, you say, is
pretty obvious, they have a sort of a lower threshold. Right?
Mr. Payne. That's correct.
Senator Graham. Okay. So what I would urge the Court to do
is take this moment to instill more public confidence. I'm not
going to vote for any of these bills, but I think we'd all be
better off if they did that. And here's what I want to kind of
explain to people. In 1998, Justice Ginsburg donated a signed
copy of her decision in the VMI case, where you had to admit
women to a State school, and it was auctioned off at a
fundraiser supporting the National Organization for Women's
Legal Defense Fund. Now, I didn't know that until this moment.
Do you all agree that if Judge Alito signed the Dobbs
decision, and gave it to the Susan B. Anthony Pro-Life
organization to raise money, all hell would break loose in this
country? Do you agree with that, Ms. Frost?
Professor Frost. So would I agree that if there was a sale
of a----
Senator Graham. If Judge Alito signed the Dobbs decision,
autographed it, gave it to the SBA group to raise money, all
hell would break loose?
Professor Frost. Yes. And I certainly would agree that
would be a problem. And in fact, I think that's one of the
reasons that Congress needs to play an active role today.
Senator Graham. Why didn't all hell break loose in 1998?
Professor Frost. I'm not sure what the reaction was.
Senator Graham. Well, when Justice Ginsburg signed a copy
of the VMI decision for the National Organization for Women's
Legal Defense Fund, why I think we all know the answer to that.
Justice Ginsburg, one of the greatest people to serve on the
Court, received an award from the National Democratic Women's
Club. Can you imagine what would happen if Justice Roberts
received the award from a Republican women's club? I think we
may read more about it.
Justice Ginsburg was given a million-dollar award by the
Berggruen Institute--in its annual philosophy and culture award
for major achievements in advancing ideas that shape the world.
Now, she didn't get the money personally, but they gave her a
million dollars to give to other people. Does anybody have a
problem with that? Does everybody have a problem with that?
Well, I'm going to assume silence means yes. The point
we're trying to make here, I think, is that this effort to come
after Justice Thomas is, I think, organized by the left. I
think this moment where we could find common ground is being
hijacked. I take Senator Durbin at his word. He's been
concerned about this for a very, very long time. But the point
is, the game has been played differently. And now we're in a
moment where this Court is under siege in multiple ways. And
that is the problem I think most of us have. What are the lines
to be drawn and who's the referee?
Does anybody know anything about the organization Demand
Justice? Negative response for all Members. Do you know where
their money comes from? Negative response by all Members. Are
you aware that they spent over a million dollars in ads
pressuring Justice Breyer to resign? Nobody knew that, right?
So if you're worried about dark money--I think that's a
legitimate thing to be worried about--let's worry about it
across the board. And I guess my point, Mr. Chairman, is that
the efforts by Senator Schumer to go to the Court and threaten
the Court with its very existence, the efforts by people to
intimidate Justices decide cases before the Court can't be
ignored.
And here's what I worry about the most. This is not about
trying to upgrade the ability of the Court to be more
transparent. It's about an effort to destroy the legitimacy of
this conservative Court. So to the panel, if you have any ideas
or recommendations about how the Court could be more
transparent, count me in. That makes perfect sense to me.
But when you look at the history of the way things have
happened with the Court, when a liberal Justice does something,
the reaction in the American media is completely different. The
New York Times article about George Mason admitted a lot of
other schools who did the exact same thing. And I would say to
Justice Alito, don't sign a copy of the Dobbs decision and give
it to the SBA to raise money. You would not receive the same
treatment if you did what Justice Ginsburg did.
Chair Durbin. Thank you, Senator Graham. Senator
Whitehouse.
Senator Whitehouse. Thank you, Chairman. Professor Frost,
you distinguish between the adjudicative and the administrative
function within the judicial branch that has constitutional
relevance to our ability to legislate.
Professor Frost. Yes. I think that's a very important
distinction.
Senator Whitehouse. Because we have no business interfering
in the Court's decision-making on matters before it. But as to
the administration of justice, we do have the authority to pass
laws. Correct?
Professor Frost. Yes. The Constitution intended Congress to
play that role over judicial administration and not----
Senator Whitehouse. In fact, Canon 4 of the Code of Conduct
encourages judges to testify in legislative bodies regarding
the administration of justice. And that would not be there if
it were not appropriate for Congress to legislate regarding the
administration of justice. Would it?
Professor Frost. Agreed.
Senator Whitehouse. Moreover, you mentioned the Ethics and
Government Act, the Ethics Reform Act, and the recusal statute.
Those are all laws passed by Congress?
Professor Frost. Yes.
Senator Whitehouse. And they all apply to the Court?
Professor Frost. Yes.
Senator Whitehouse. Indeed, in some cases, using the word
Justices specifically, which is the term that applies to
Supreme Court Justices only. Correct?
Professor Frost. Yes.
Senator Whitehouse. And has the application of those
statutes to the Supreme Court ever been challenged by the Court
itself in the years in which they've been in place, to your
knowledge?
Professor Frost. Not to my knowledge.
Senator Whitehouse. Judge Fogel, you were at the Judicial
Conference for many years. You've had to have had the role that
Judicial Conference was given by statute, by Congress, to
administer these laws in the context of administering these
laws, particularly, under the supervision of the Chief Justice.
Were you ever told that these laws were unconstitutional, or
that the Judicial Conference, or the Financial Disclosure
Committee should not enforce them?
Judge Fogel. No, Senator. The Justices complied, as did all
of the other Federal Justices with the disclosure requirements.
Or at least they made an effort to.
Senator Whitehouse. And in fact, one of the rules--part of
the law is that if there is a financial disclosure violation,
then the determination as to whether that violation was willful
and is subject to civil penalties, actually gets referred to
the Attorney General for determination.
Judge Fogel. That's correct. What the committee does is it
looks at the nondisclosure or the incomplete disclosure. It
determines whether it's something that could be remedied.
Usually, the way the committee functions is remedially. They
try to get the filer to comply with the disclosure
requirements. But if there's a willful failure, then the
committee has the authority to make that referral.
Senator Whitehouse. And it does so based on a determination
that there's reasonable cause for someone to believe that this
might have been a willful violation?
Judge Fogel. That's correct.
Senator Whitehouse. Then the willfulness determination gets
made by the Attorney General.
Judge Fogel. That is correct. But I have to say----
Senator Whitehouse. And there are civil fines that are
potentially imposed if----
Judge Fogel. Yes, sir.
Senator Whitehouse. Okay, just go ahead. Finish what you
wanted to say.
Judge Fogel. Well, what I was going to say was that the
committee tries very hard with the filer to make sure that
every effort is made to get a proper filing, so.
Senator Whitehouse. In fact, it's okay for a judge--in
fact, it's even encouraged for judges and Justices to bring
concerns about financial disclosure to the committee for a
confidential opinion saying here's what you got to do.
Judge Fogel. That's correct.
Senator Whitehouse. And Justice Thomas did not do that with
respect to these filings.
Judge Fogel. I don't want to comment on Justice Thomas, but
normally the committee is there to assist with questions like
that.
Senator Whitehouse. So has the Judicial Conference, again,
under the supervision of the Chief Justice of the United
States, ever suggested that it was unconstitutional for
Congress to require that these forms be filled out? That if
there are omissions in the forms that be referred to the
Attorney General, and that a civil fine could be imposed on a
Justice for failure to file? Has that ever been raised in your
conversations?
Judge Fogel. Not to my knowledge, sir. No.
Senator Whitehouse. Well, that's, I think, a little bit
telling. I appreciate that. Mr. Payne, are you familiar with
the concept of regulatory capture?
Mr. Payne. Yes.
Senator Whitehouse. Sometimes called agency capture?
Mr. Payne. Yes.
Senator Whitehouse. Fairly considerable literature about it
in administrative law and economics.
Mr. Payne. Yes.
Senator Whitehouse. So I'll ask you a hypothetical. Let's
just say, hypothetically, that there were an organized effort
to capture--in the meaning of regulatory and agency capture--to
capture the Court in such a way that it was beholden to and
ruled in favor of big special interests. That's the
hypothetical.
Here's the question. If that hypothetical were true, would
any ethics concerns be raised by Justices consorting with
individuals or associating with groups involved in that capture
scheme?
Mr. Payne. Yes. In that hypothetical, there could be
potential conflicts of interest if someone was engaged in
trying to influence the Court and members of the Court were
engaging in activities with them.
Senator Whitehouse. Thank you. My time has expired.
Chair Durbin. Thanks, Senator Whitehouse. Senator Grassley.
Senator Grassley. Thank you, Mr. Chairman. Thanks to the
witnesses before us. The Framers of the Constitution carefully
crafted a system of checks and balances. While the Constitution
purposefully insulated the Federal judiciary from political
control, it's important that Congress exercise constitutional
duty of oversight. Judges are expected to comply with high
standards of ethics and integrity, and it does appear there
needs to be better oversight.
I've been a longtime advocate for transparency and
accountability because I believe the public's business should
be public. I've been a strong proponent of Government oversight
and the duty of Congress to be good stewards of the taxpayers'
dollars. I've endeavored to improve our Government and promote
greater responsibility at all levels. I've worked on bills to
root out waste, fraud, and abuse, and to foster integrity and
accountability, including in the Federal judiciary.
Unfortunately, Democrats and their left-wing dark money
interest groups, as well as their allies in the liberal media,
have engaged in a crusade to threaten, pack, and smear the
courts. They've targeted specific judges and Justices who
aren't implementing a liberal agenda that they can't ram
through Congress.
The goal of these efforts is to cast doubts on certain
judges and Justices all because the left is opposed to recent
Court rulings. That's what this hearing is all about,
undermining the American people's trust in our judicial branch
of Government. Today's hearing is just one political theater to
delegitimize our judicial system, particularly the Supreme
Court.
Judicial decision-making must be based on law and sound
jurisprudence. It must not be subject to the whims of public
opinion and clamor. It must not result in threats and
intimidation, as this relentless political battering of certain
members of the judiciary who are doing the bidding of the
liberal grand plan is coming at a tremendous cost.
Our judges and Justices face harassment and public
intimidation in their private life despite Federal law which
prohibits picketing or parading at a judge's residence. Our
Justices and their families often endure organized protests
outside their homes. Judges and Justices and their families
face real threats to their safety and security.
Unfortunately, the whirlwind that Democrats threatened at
the steps of the U.S. Supreme Court really has been released
against our judiciary.
So I'm going to ask Mr. Dupree and Judge Mukasey two
separate questions. The first one is for Mr. Dupree. Federal
judges are required by law and the Judicial Conference to
comply with these disclosures and ethical guidelines. Can you
please give us a brief overview of the constitutional framework
in which these rules and guidance operates?
And then for Judge Mukasey, this question. How is the
Supreme Court different than the lower courts with respect to
complying with these rules? Mr. Dupree.
Mr. Dupree. Sure. Well, thank you for the question, Senator
Grassley. There are, of course, a number of statutes that
affect the information that Supreme Court Justices must
disclose, and also governs things such as recusal and
disqualification.
In some circumstances, the statutes act directly upon the
Justices themselves. I think in those cases, they would concern
what, I think, all of us would consider noncore Article III
duties. And that's why, as a constitutional matter, it would be
permissible for Congress to directly regulate the judiciary in
that respect. There are other statutes where what Congress has
done is created the Judicial Conference, which sets,
effectively, regulations for the majority of the Federal
judiciary, but is not directly controlling upon the Supreme
Court.
Nonetheless, the Supreme Court, really as an exercise of
discretion, has agreed to follow and respect and comply with
those types of guidelines.
So I think that, constitutionally speaking, the Supreme
Court would be regulated in two ways. One is through direct
regulation when it concerns a noncore Article III activity. And
the other would be an indirect regulation where Congress
directly regulates the lower courts, but the Supreme Court
Justices voluntarily agree to abide by and comply with those
requirements.
Senator Grassley. Judge Mukasey.
Judge Mukasey. I agree with Mr. Dupree's portrayal of the
way the system works. As to the mechanics, I think that the
rules of general application that apply to all courts are
applied to judges and Justices.
And as was pointed out before, it's sort of an iterative
process. You file your report, you file your form, and they get
back to you--those who review the form and ask for greater
detail when necessary. And generally, it's provided. I think
the one feature that was alluded to before about the Attorney
General making a determination of willfulness, I don't know
that that's ever been litigated. And if it were ever litigated
as to a Supreme Court Justice, I believe it would be found to
be unconstitutional. That is not anything that, I believe, has
ever been tested. Certainly, not on the Supreme Court level.
Chair Durbin. Thanks, Senator Grassley. Senator Klobuchar.
Senator Klobuchar. Thank you very much, Mr. Chairman. I
guess I'll start with you, Mr. Fogel. The Judicial Conference,
I think, did the right thing by strengthening the disclosure
requirements that apply to judicial officers, including the
Supreme Court, recently. But the Supreme Court Justices are
still not bound to the code of conduct, as we've been
discussing, for United States judges unlike all other Federal
judges.
The code requires that a judge uphold the integrity and
independence of the judiciary, and avoid impropriety, and the
appearance of impropriety. How is a formal, enforceable code of
conduct help to ensure that the rules are consistently applied
for every other judge in the Federal system?
Judge Fogel. As someone who was bound to that for 37 years,
both as a State court judge and a Federal judge, it really is
your North Star. It's what you look at in terms of the values
you want to uphold as a judge, and it's something that guides
your conduct. And it also is something that the public can look
to and say this is what we expect of our judges.
Senator Klobuchar. Do you agree with Judge Luttig, who was
just quoted by Senator Durbin, who wrote the Committee to say
if the Supreme Court does not subject itself to the highest
possible professional and ethical standards, it can depreciate
its power?
Judge Fogel. Senator, I agree with that. I think that the
Supreme Court--my hope is--the reason I came here today,
really, is I hope that the Court will adopt a formal code of
conduct. I think it needs to be modified in some respects
because the Supreme Court is different in a number of ways, but
I think the absence of a formal code is an issue that I hope
that they will address.
Senator Klobuchar. I appreciate that and your
thoughtfulness. Ms. Frost, thank you. You mentioned the
Judiciary Act of 1789, you mentioned the Ethics Reform Act of
1989, you mentioned the Ethics and Government Act of 1978, as
reasons that, in fact, Congress has passed laws in the past
based on the Constitution about the operations of the Court. Is
that right?
Professor Frost. Yes, that's correct.
Senator Klobuchar. Okay. So I go over here to you, Mr.
Dupree. I really wasn't planning on asking you questions until
you dissed the Department of Agriculture because you said,
their accord is not just like the Department of Agriculture.
And I was looking up--it was set up by Abraham Lincoln in
1862--being a big Ag State that we are, 100,000 employees,
serves the people of this country, yet that Department, which
basically has jurisdiction over what our farmers do for
ranching, and farming, and countercyclical payments, I mean,
they've got ethical laws in place.
So I actually see the opposite when I think about the power
of this Court, and I think about what Ms. Frost said. I think
there is every reason that this Court should have ethical rules
like the fine Department of Agriculture, and that we don't look
at that as a bad thing. We look at it as a good thing.
Mr. Dupree. Certainly, to be clear on the record, Senator.
No disrespect to the Department of Agriculture.
Senator Klobuchar. You did it.
Mr. Dupree [continuing]. Which is a hallowed----
Senator Klobuchar. You did it, sir.
Mr. Dupree [continuing]. Department and agency.
Senator Klobuchar. You decided that was the Department you
were going to mention. And I think a lot of people in the
middle of the country noticed it, but go ahead.
Mr. Dupree. Understood. Again, no disrespect. My point with
regard to the Department of Agriculture was simply that the
provision of the bill and several bills have similar types of
provisions where they basically order the Supreme Court to
engage in essentially a rulemaking function. In other words, to
promulgate for public notice and comment a code of conduct.
Again, analogous to what this Congress would say with regard to
either the Department of Agriculture, Department of Defense,
Department of Homeland Security, you name it.
And my point was simply that as a matter of our
constitutional structure, the Supreme Court is differently
situated in a profound and fundamental way from Article II
executive branch agencies which can be vested with rulemaking
power under the Constitution.
Senator Klobuchar. Thank you.
Mr. Dupree. Article III can't.
Senator Klobuchar. Ms. Frost, do you want to reply? Because
this gets to the core of this question of us actually being
able to pass a law and do anything.
Professor Frost. Yes. I mean, this is the point about
Article III of the Constitution. It's very short. It requires
that there be a U.S. Supreme Court as a few other provisions.
But it leaves to Congress that essential role of administering
the Court, and Congress has always done so. So to question that
authority today is to question 230 years of consistent practice
where Congress has legislated regarding the Court.
To be clear, not to control its decisions. That is clearly
off limits. But every other aspect of the Court is controlled
by Congress, from its size to when it meets.
Senator Klobuchar. Agree. Mr. Payne, why is it important
that the Supreme Court also have an ethics office separate from
the individual Justices to provide them with advice on how to
comply with the ethical obligations, and to ensure that this
office has the authority to conduct independent fact finding?
Mr. Payne. The only way that any current ethics rules or
future ethics rules will work is if there's a way to enforce
these rules, and a way for the Supreme Court Justices to
understand how they apply. So, therefore, you need an internal
body that can provide the ethics expert advice, and also gather
facts in the circumstances where there are potential violations
that need to be resolved.
Senator Klobuchar. Ms. Frost, what do you think on that?
Professor Frost. Yes. I would agree with Mr. Payne's
analysis there and I think that one of the problems we've been
having today is that so many of these issues get dug up by
investigative journalists and splashed across the news in ways
that does damage to the Court. If they had a more systematic
method of adopting or approaching these problems, we could
avoid this.
Senator Klobuchar. And, Mr. Fogel, how would you handle
that? Because you've been, you know, trying to thread the
needle here.
Judge Fogel. No, I am trying to thread the needle. I think
the Court's independence is very important. I agree with other
witnesses who've said that. I think there are ways they could
do better at getting independent and impartial advice about
ethical questions. They don't really have--it's kind of a black
box. As I said in my written testimony, they have a lot of
sources and rules that they follow, but no one really knows
what they are.
And I think if they had an internal resource--I suggested
and I'm not alone in suggesting that, that they get a group of
very experienced retired judges whose integrity is
unquestioned. And I stress retired judges because then they're
not subject to the problem that a circuit judge would have or a
district judge would have.
To just say, ``Look, I have a question here, I'd like your
advice, I mean, what do you think?'' Somebody who's
independent, who doesn't have any skin in the game, and can
just say, ``Yes, I think this is okay,'' or, ``I don't think
that's okay.'' I think that's a modest step that the Court
could take.
Senator Klobuchar. Okay, well, thank you. And, Mr. Mukasey,
I'm sure we can talk about this in the future as my colleagues
await. But you and I have worked together well, including when
you were Attorney General. So thank you.
Judge Mukasey. We have. Thank you very much.
Senator Whitehouse [presiding]. Senator Cornyn.
Senator Cornyn. I'd like to go to the video, please.
[Video is shown.]
Senator Whitehouse. Senator Cornyn----
Senator Cornyn. That was 32 years ago and I'm reminded as I
get older that not everybody's had the same experience or
memories that I have. That was one of the searing memories that
I've had about Supreme Court confirmation hearings, and I think
provides an important context for today's hearing.
The truth is that, as Senator Kennedy said, starting
perhaps with the Bork nomination, that members of the United
States Supreme Court when they've been nominated for the job,
have been subjected to relentless campaigns of harassment and
intimidation. Which, as Justice Alito recently pointed out, can
lead not just to intemperate attacks like the Senate Majority
Leader made against Judge Gorsuch and Judge Kavanaugh by name
back in 2020, it could lead unstable individuals to decide that
they are going to conduct an assassination of these members of
the Supreme Court. So things have gotten terribly out of hand.
Judge Mukasey, you and Mr. Dupree both talked about the
separation of powers. I looked back at the rules of the United
States Senate, our ethics rules by which we are governed. And
they are rules that are set by the Senate itself. How do you
think the Senate would react if the United States Supreme Court
said we don't like the ethics code of Senators or Members of
the House of Representatives? Would the same principle of
separation of powers and co-equal branches of Government apply
in that circumstance?
Judge Mukasey. Yes. Of course, it would, Senator. This body
sets the rules for its conduct the same way that the Court sets
the rules for its conduct and the executive--the person of the
President and the Vice President set the rules for theirs.
That's not to say that laws of general application don't apply.
Of course, they apply. But when you're talking about the
particular rules relating to a particular branch of Government,
those are set by that branch of Government.
Senator Cornyn. Mr. Dupree.
Mr. Dupree. I agree with Judge Mukasey. And I would add,
Senator, in response to your question about the importance of
the separation of powers, I think it's important to underscore
that the separation of powers is not some sort of academic
concept that was invented by law professors. This is a concept
that is structurally baked into our Constitution, and the
Framers viewed as absolutely crucial to preserving not just the
independence of each branch and ensuring that the judiciary
could act independently, but also to preserve freedom and
individual liberty.
And so the things we're discussing today obviously have,
you know, practical consequence in terms of granular
information about data and disclosure and the like. But at the
end of the day, what's really on the table is a concept that is
absolutely fundamental to our constitutional structure and must
be preserved.
Senator Cornyn. I think Justice Scalia pointed out, among
others, that----
Senator Whitehouse. The Senator's time has expired minutes
ago.
Senator Lee.
Senator Lee. Thank you, Mr. Chairman. And thanks to each of
you for being here. As we heard quoted moments ago, when
Justice Thomas was in this room in front of this Committee
nearly 32 years ago, he had some observations about his
confirmation proceedings and he described those proceedings as,
quote, ``high-tech lynching for uppity blacks who in any way
deign to think for themselves, to do for themselves, to have
different ideas.'' He then described the consequences for doing
those things, quote, ``you'll be lynched, destroyed,
caricatured by a Committee of the U.S. Senate rather than hung
from a tree.''
Now, more than three decades later, that observation
remains tragically relevant. Today's hearing and the radical
left's continued attacks on Justice Thomas and his wife Jenny
over the last 31\1/2\ years, are part of a sustained hateful
attempt to discredit an honest man and a principled jurist.
The left, you see, can't tolerate, it cannot accept the
fact that one of our greatest American success stories--that of
a humble citizen who rose from poverty in the segregated South
to become not only one of the Supreme Court's longest serving
Justices, but also one of the most influential jurists our
country has ever known--is the story of a Black man who happens
to be conservative.
Now, those leading the charge against Justice Thomas would
have us believe that he simply couldn't think for himself. That
he can't think for himself. And so his wife and his white
friends must tell him what to think. And the truth is the left
simply disagrees with his decisions, and with the decisions of
our current Supreme Court. And they obviously can't persuade
the American people to adopt their radical policies through
legislation so they're attempting to destroy the Court's
credibility and intimidate the Republican-appointed Justices
and their families starting with Justice Thomas.
They're making clear that Justices who disagree with them
will pay a price. And it's a price that the radical left is
determined to ensure is very high. This is all just a thuggish
shakedown. Nice Supreme Court you've got there, America. Sure
would be a shame if something happened to it.
And don't just take my word for it. Remember what Senator
Chuck Schumer did in 2020--went on to the steps of the Supreme
Court, called out specific Supreme Court Justices by name,
referring to Justices Gorsuch and Kavanaugh by name, telling
them, ``You've released the whirlwind and you will pay the
price. You won't know what hit you if you move forward with
these awful decisions.''
Then, in August of 2019, five Democratic Senators,
including four Members of this Committee, submitted an amicus
brief to the Supreme Court of the United States, an amicus
brief in which it leveled a threat saying change according to
what we demand or else the Court is going to have to be, quote,
``restructured in order to reduce the influence of politics.''
Since the leak of the Dobbs draft opinion 1 year ago today,
the Justices and their families have endured constant protests
at their homes, their churches, even their children's schools.
There was even an assassination attempt against Justice
Kavanaugh. Of course, when I say the Justices in this context,
I don't mean all of them. I mean the Dobbs majority Justices,
as only the dissenters in that case have been spared the rage
machines, bullying, threats, and intimidation tactics.
As Justice Alito recently observed in his comments to The
Wall Street Journal, it was the Dobbs leak that made Justice
Alito, and those of his colleagues who joined in his opinion,
likely targets of assassination. As Justice Alito explained,
quote, ``it was rational for people to believe that they might
be able to stop the decision in Dobbs by killing one of us.''
Astoundingly, with that conversation fresh in our minds,
Democratic Senators are now threatening to defund the Supreme
Court's requested police protection of the Justices and their
families unless they adopt specific measures that those
Senators demand. All these tactics, of course, are meant to
harass and intimidate the Court, specifically, the Justices
appointed to the Court by Republican Presidents and force them
to impose the left's radical policy agenda on the American
people. Not through the legislative process, but by judicial
fiat.
The left has carefully coordinated these attacks with an
increasingly compliant left-wing media. If you read articles
from sources like The New York Times, Politico, and outlets
like ProPublica, you'd think that the Supreme Court Justices
appointed by Republican Presidents are universally reckless and
corrupt, and those nominated by Democrats, universally
conscientious and virtuous.
That bias becomes apparent both in what receives coverage
and in what doesn't. One Justice appointed by a Democratic
President failed to recuse when her husband's law firm had
cases before the Court. One failed to disclose the sources of
her spouse's income. One traveled for free with wealthy
friends, including stays at the homes of prominent attorneys
whose firms have cases before the Supreme Court.
You wouldn't hear any of that from the biased media or
Congressional Democrats who conveniently point only to
Republican-appointed Justices when demanding their reforms to
the Court.
Now, I raise these examples not to accuse the Court of
being systemically corrupt or broken in any way. No, it's
neither of those things--let me just finish my statement, if I
could. I raise these things only to point out that Senate
Democrats, left-wing advocates and activists, and their
publicity outposts in America's mainstream media establishment
never tell the complete story about this. And by telling only
half the story, they reveal their true purpose, which is not to
tell the truth, but to punish their political enemies. We
cannot afford to delegitimize and denigrate the Court in this
way. It must stop. Thank you, Mr. Chairman.
Chair Durbin. Thank you, Senator Lee. We passed the Daniel
Anderl Judicial Security and Privacy Act in the last Congress
after the murder of Judge Esther Salas' son at their home. That
bill was held up on the Senate floor for nearly a year by a
Member of the other party.
Senator Coons.
Senator Coons. Thank you, Chairman Durbin. The American
people need to have confidence that Government officials in all
three branches are serving the public interest, not their
personal interests. And the Supreme Court, as I think this
hearing has demonstrated, suffers today from a lack of
transparency and accountability when it comes to ethics
practices.
This is true for Justices appointed by Presidents of both
parties. This is not a Democrat or Republican issue. This is an
issue of transparency, accountability, and confidence. Last
year, I led the successful passage of the Courthouse Ethics and
Transparency Act, joined by Senator Cornyn, many Republicans.
It was actually adopted unanimously.
It's simple. It requires Federal judges, including on the
Supreme Court, to promptly report when they sell securities so
the public is made aware of any potential conflict due to a
financial interest. Members of Congress have had to comply with
the same requirements so we made sure that Federal judges, all
Federal judges, should have to play by similar rules.
Still, the Supreme Court is today subject to weaker ethical
obligations than other branches of our Government. I want to
explore some of those differences briefly. Now, Mr. Payne, if I
might, one obvious difference between Congress and the Supreme
Court is the Court has no formal mechanism to provide guidance,
investigate allegations, or enforce ethical constraints on the
Justices.
I'm the chair of the Senate Ethics Committee and have seen
firsthand the value of similar structures. Why has the Court
failed to create a similar ethics body, and could it do so at
any moment if it chose to?
Mr. Payne. It is unclear why the Court has decided not to
establish such an internal body. It is just a basic principle
with any rules to have an enforcement or compliance mechanism
internally. And they could create this immediately. All they
need is to establish an office within the Supreme Court that
has ethics experts who are professionals, who can provide
advice on the existing rules, and can handle any new rules that
are enacted.
Senator Coons. If one were seeking ethics guidance, as a
member of the executive branch, legislative branch, judicial
branch, and you simply turned to your colleagues rather than a
professional office that was responsible for providing uniform
and impartial advice, would you be practicing at the highest
level in terms of your compliance with ethics rules----
Mr. Payne. No.
Senator Coons [continuing]. And regulations?
Mr. Payne. No. If you rely on colleagues or anyone who is
not providing guidance across the board, the advice will not be
consistent and won't necessarily be correct.
Senator Coons. In his response to this Committee to the
letter from the Chairman, Chief Justice Roberts noted, the
Supreme Court adopted a resolution in 1991 to comply with the
Judicial Conference's Financial Disclosure Regulations.
But the Court has declined to adopt a similar resolution
that would bind the Justices to the Judicial Conference's Code
of Conduct. Why has the Court agreed to comply with the
Conference's disclosure rules, but not its broader ethics
rules? And could the Justices easily bind themselves to the
Code of Conduct if they so chose?
Mr. Payne. Again, it's unclear why the Justices decided to
only bind themselves with the regulations. However, I point out
that the Ethics and Government Act applies to the Justices. So
they really don't have the option to opt out, but they could
easily establish a code of conduct for themselves to have rules
that are applicable to them and can be enforced.
Senator Coons. And is there any significant distinction
among the other members of the Article III Federal judiciary in
terms of their report requirements, their disclosure, and their
ability to have their conduct reviewed by an independent and
impartial enforcement body? Is there any variation among the
rest of the Article III judiciary?
Mr. Payne. Yes. Unlike the Supreme Court, all of the lower
court judges are bound by the same financial disclosure
requirements. But they do have the Judicial Conference that can
provide ethics advice that is available online, even in
advisory opinions, such that it is clear what the rules are,
how they apply, and what happens if there's noncompliance.
Senator Coons. Last question, if I might, Professor Frost.
Chief Justice Roberts has said it would be inappropriate for
the Judicial Conference to supervise the Supreme Court. At the
same time, he suggested he believes the Court can't be
constrained by Congress. That concept has been raised here
today as well. In that view, only the Court itself would be
able to enforce its own ethics requirements. Do I understand
that correctly?
Professor Frost. Yes, that seems to be the position.
Senator Coons. And it seems to me that's the equivalent of
saying that they alone should be able to grade their own
homework. I think Congress can legislate here if necessary. It
may not be the most desirable outcome, but it is possible. In
fact, I think we passed the Courthouse Ethics and Transparency
Act by voice vote last year. Colleagues on both sides of the
aisle co-sponsored this bill. Can you explain how we can
reconcile this kind of legislation with the key principle of
separation of powers?
Professor Frost. Yes. That's because we are not talking
about interfering with the Court's decisional independence.
We're not talking about penalizing Justices for their votes in
any cases. We're talking about the checks and balances that
exist for all three branches where Congress plays a role in
establishing the administration of the courts. The Constitution
requires that, and its part and parcel of that establishes
ethical guidelines.
Senator Coons. In fact, I'd argue, Mr. Chairman, in
closing, that if the most senior members of the executive
branch, and the legislative branch, and the judicial branch are
all subject to disclosure, and reporting, and compliance, and
enforcement obligations, for just one court of nine Justices to
exempt themselves puts us at real risk of the highest court
having the lowest ethical standards of the entire senior
members of all three branches. Thank you, Mr. Chairman.
Chair Durbin. Thank you, Senator Coons.
Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman. And thanks to all
of our witnesses who have joined us today. Mr. Payne, let me
start with you, sir. You are kind of in the middle here. You
work for the Campaign Legal Center. Is that right?
Mr. Payne. That's correct.
Senator Kennedy. Is your website campaignlegal.org?
Mr. Payne. Correct.
Senator Kennedy. Okay. Does not the front page of your
website say, I'm going to quote here, I want to get it right.
``The current U.S. Supreme Court is a threat to our
democracy.'' ``The current U.S. Supreme Court is a threat to
our democracy.'' Did I read that right?
Mr. Payne. What I can say is that our organization----
Senator Kennedy. But is that on your website?
Mr. Payne. I am not certain exactly what's on the website.
Senator Kennedy. Here it is right here, as big as Dallas.
Mr. Payne. What that refers to is the voting rights
legislation--I mean, voting rights cases of the Supreme Court.
Our organization is a voting rights organization that fights
for all Americans that have the ability to vote.
Senator Kennedy. Yes. But you've got to click a bunch of
times to find that explanation. I just want to make sure I read
that correctly. A few months ago, Mr. Payne, you retweeted the
following statement: ``Some Justices are politicians in robes
who thrive in a system where access and influence are for
sale.'' ``Some Justices are politicians in robes who thrive in
a system where access and influence are for sale.'' Now, that's
a pretty bold statement.
Mr. Payne. I'm sorry, Senator, is that a news article?
Senator Kennedy. No, sir. That's a retweet here. You
tweeted this out. Tell me which Justices are for sale?
Mr. Payne. I don't recall that tweet, but----
Senator Kennedy. Here it is, November 21, 2022. Can you
tell me which Justices are for sale?
Mr. Payne. No.
Senator Kennedy. Are any of them for sale?
Mr. Payne. No. The problem is that the American public has
a perception that some Justices----
Senator Kennedy. Yes, but I'm going----
Mr. Payne [continuing]. May be----
Senator Kennedy [continuing]. To establish the point first.
You tweeted this out. Do you believe that some Justices are for
sale, and if so, which ones?
Mr. Payne. No, Senator, I do not believe that Justices are
for sale.
Senator Kennedy. Then why did you tweet this out?
Mr. Payne. Can you provide more context of what that is?
Senator Kennedy. Sure. I'll get you a copy, but here it is.
I checked it and triple checked it. You also said less than a
month ago that John Roberts--you retweeted this out: ``John
Roberts is a disgrace.''
Mr. Payne. No, I actually----
Senator Kennedy. ``I disagree with Justice Roberts.'' Well,
you didn't call him Chief Justice Roberts. You called him John
Roberts. You retweeted this.
Mr. Payne. No, Senator, I did not retweet that.
Senator Kennedy. Yes, sir, you did. Right here, it's as big
as Dallas.
Mr. Payne. I will need to see. Can you provide a copy to me
now?--
Senator Kennedy. Sure.
Mr. Payne. But I did not retweet that.
Senator Kennedy. Can you tell me why you think Chief
Justice Roberts is a disgrace?
Mr. Payne. I did not say that. Did not retweet that.
Senator Kennedy. Okay. Maybe Twitter got it wrong.
Mr. Payne. Someone got it wrong.
Senator Kennedy. Let me ask you this, because the unstated
premise of all this--sometimes it's stated--but the unstated
premise of all this is that some Justices have been bribed.
Let's just cut to the chase. Okay? Now, let me stay with you,
Mr. Payne. Let me go to Mr. Fogel. I don't want to just pick on
you, Mr. Payne. You can be looking up on Twitter where you said
those things.
On April 4th, 2019, the American Civil Liberties Union paid
for Justice Sotomayor's trip to San Juan, Puerto Rico. You ever
been to San Juan, Mr. Fogel? Is it expensive?
Judge Fogel. I have been, Senator. Well, it depends on when
you go.
Senator Kennedy. Yes. How much do you think it costs to go
down there?
Judge Fogel. Depends whether you fly first class or
economy.
Senator Kennedy. What if you fly first class?
Judge Fogel. Oh, probably a couple of thousand dollars.
Senator Kennedy. Okay. The ACLU, do they have cases in
front of the Supreme Court?
Judge Fogel. All the time.
Senator Kennedy. They do all the time?
Judge Fogel. Yes, sir.
Senator Kennedy. Do you think the ACLU was trying to bribe
Justice Sotomayor?
Judge Fogel. No, sir, I don't.
Senator Kennedy. I don't either. I don't either. But that's
the unstated premise of all this.
Judge Fogel. Well, Senator, if I may----
Senator Kennedy. All these articles about Justice Clarence
Thomas, and the Chief Justice of the United States, and Justice
Gorsuch who sold an interest in an LLC to a Democratic donor
who he had never met, that they bought him. Isn't it?
Judge Fogel. May I say something in response, Senator? I
think there are two things going on here today. I think there
is a political conflict, which is, as I said earlier, it's very
intense. It's hyperpartisan. Both sides have things to say. And
then, I think there's an ethical issue.
Senator Kennedy. When you accuse people of being bribed----
Judge Fogel. No, no, no. I'm not accusing----
Senator Kennedy [continuing]. It kind of gets their
attention.
Judge Fogel. Sir, hold on a second. I'm not accusing
anybody of being bribed. I'm not.
Senator Kennedy. But some people are.
Judge Fogel. Some people are. The reason I'm here is I
think that there is an ethical issue that, as Senator Graham
said earlier, it would be good for the Court to think about in
terms of being more transparent. That is what I care about.
That's the only thing I care about. There's a lot of political
back and forth. It's very interesting. I'm interested in it as
a citizen of the United States. But I think the most useful
thing that this or any other Committee could do is think about
how do we make our institution----
Senator Kennedy. Well, how are you going to do that in the
context, though, of one of our Leaders--for whom I have great
respect--going on the steps of the United States Supreme Court,
telling two Justices if they vote in a way he doesn't like,
they will pay the price and reap the whirlwind.
And you have another one of your witnesses here tweeting
out stuff saying, quote, ``some Justices are politicians in
robes who thrive in a system where access and influence are for
sale.'' He said they were bought like a sack of potatoes.
Judge Fogel. Okay. I'm not----
Mr. Payne. Not true.
Judge Fogel [continuing]. Going to comment on that,
Senator. That's not anything I had anything to do with, so.
Senator Kennedy. Did I hear the gavel?
Chair Durbin. No. Thank you, Senator Kennedy. Senator,
Hirono--I'm sorry, I got it wrong. Senator Blumenthal.
Senator Blumenthal. Thank you.
Chair Durbin. Can I say a word before you start? Members
are coming and going. We have two roll call votes on the floor.
So please understand. It's not disrespectful. Senator
Blumenthal.
Senator Blumenthal. Thanks, Chairman Durbin, and thank you
to the witnesses for being with us today. You know, as I listen
to this exchange, the fact of the matter is the American public
want action. The American public is disgusted. They're
disgusted with what they see in public life as the degrading of
standards and conduct that would never be tolerated in their
own workplaces and in their own private lives. And they want us
to provide that action.
The public confidence in the United States Supreme Court
has plummeted. We can go back and forth as to what the cause
is, but a lot of the American public are increasingly seeing
the Justices as politicians in robes. And now, after the
revelations about Justice Thomas, as corrupt politicians in
robes. They want an investigation. They want the truth.
And the ones who are victims here are not only the American
public, they're the judges themselves at the lower courts. Year
in and year out, Federal district court judges, appellate court
judges are filling out those forms rigorously, accurately. And
now the Nation's highest court is seeming to put itself higher
than the law. And that is unfair to the other judges who are
playing by the rules. And in fact, it is tarring the entire
judiciary, undermining that branch of Government that has no
armies, no police. All it has is its legitimacy.
If you undermine that legitimacy, confidence, and trust the
American people, there's nothing left of our judiciary. And the
greatest democracy in the history of the world, protected by
judges who are supposed to be independent, impartial, is going
to suffer irreparably.
That's why I think we need a proper investigation. It
should be done by the Department of Justice because there are
allegations of criminal wrongdoing here, violations by Justice
Thomas of the disclosure laws, incomplete, inaccurate reporting
as well as nondisclosure. And in the absence of an
investigation by the Department of Justice, we have a role to
play in Congress.
But the judges have a role to play, too, in protecting
themselves. And what Chief Justice Roberts has done in refusing
to come before this Committee is judicial malpractice. It is a
disservice to the courts, to his colleagues who sit there every
day, sometimes endangered physically, and always under the
microscope of public scrutiny. So I think judges ought to be
angry about this crisis of legitimacy that is developing in the
Supreme Court because it affects our entire judiciary.
And I want to ask Judge Fogel, in your experience, although
you're a retired judge, my view is judges should be angry and
fearful. Do you agree?
Judge Fogel. Let me answer your question this way, Senator.
First of all, I said earlier, and it's true, I have a lot of
respect for Chief Justice Roberts. He certainly was a great guy
to work with for the 7 years I worked with him. And I think his
intentions are good.
I think that the rank-and-file judges to whom you alluded
earlier have often felt that they would like the Court to be a
little bit more robust in asserting itself in this area of
ethics and transparency. That it has been not forthcoming in
some ways that I think it could be.
I'm not saying that there's anything wrong. I'm not here to
be partisan. I'm not going to get into that debate. But I think
that it would be good for public confidence. It would be very
good for public confidence and for the confidence of the
judicial rank and file that you were talking about if the Court
were more assertive in standing for ethical compliance.
And I think this is on the Court. I think the Court can do
it. I think they got some really smart people. I think there
are ways that they can do it that don't compromise their
decisional independence or their institutional independence.
And I think some judges are frustrated that that hasn't
happened.
Senator Blumenthal. I agree. I've talked to a number of
judges who are more than frustrated. They are livid. And I
believe their views reflect a growing feeling among the
judiciary. All I can say is I urge those judges to stand up and
speak out because they can help protect the judiciary as an
institution. Thank you, Mr. Chairman.
Chair Durbin. Thank you, Senator Blumenthal. Senator Cruz.
Senator Cruz. In 1991, Justice Clarence Thomas appeared
before this Committee in one of the most disgraceful
performances by the Senate Judiciary Committee in our Nation's
history. Justice Thomas rightly described the treatment he got
from then-Chairman Joe Biden and Senate Democrats as a, quote,
``high-tech lynching.''
It is sad to see 30 years later, this Committee is again
engaged in the same despicable tactics. Senate Democrats and
their lap dogs in the media are engaged in a twofold political
campaign.
Number one, to delegitimize the Supreme Court of the United
States because they are angry that there are a majority of
constitutionalists on the Court. But number two, very directly,
this is a political campaign designed to smear Justice Clarence
Thomas and the reason is simple. The left despises Clarence
Thomas, and they do not despise him because he's a
conservative. The left despises Clarence Thomas because he is a
conservative African American.
Here's what Clarence Thomas said at that confirmation
hearing. He said, if you are a freethinking African American,
quote, ``you will be lynched, destroyed, and caricatured by a
Committee of the U.S. Senate.'' Well, in three decades, that
hasn't changed, and it's gotten worse.
And to be clear, here's the left's view.
[Poster is displayed.]
Senator Cruz. I point to one article just 3 weeks ago.
``The Democrats need to destroy Clarence Thomas' reputation.
They'll never successfully impeach him, but so what? Make him a
metaphor for every insidious thing the far right has done to
this country.'' That's what the left is trying to do.
And I will tell you, if you look at the next poster board.
[Poster is displayed.]
Senator Cruz. The left has repeatedly attacked Clarence
Thomas with a racism. This is a magazine cover that showed
Justice Scalia every bit as conservative as Clarence Thomas,
but he's portrayed as the master and Clarence Thomas, in a
bigoted attack, is portrayed as shining his shoes.
I'll show you another one to give you a sense of the racist
vitriol from the left.
[Poster is displayed.]
Senator Cruz. Here's a racist caricature of Clarence
Thomas, lawn jockey for the far right. This is the bigoted
contempt the left has. I'll show you another magazine cover.
[Poster is displayed.]
Senator Cruz. Offensively, this is how the left views
Clarence Thomas.
Now, it's important for people at home to understand this
is not about judicial ethics--you can take those down. This is
not about judicial ethics. This is not about rules that should
apply to judges across the board. We could have a reasonable
discussion about that. This is about applying a double standard
to Clarence Thomas, and only Clarence Thomas.
The attack that my Democrat colleagues breathlessly repeat
is that Clarence Thomas stayed at the vacation home of a very
close friend of his, a successful Texas businessman, flew on
his plane, and went on his yacht. Well, if that's the standard,
going and traveling, and being paid for by others, then guess
what? Just about every Supreme Court Justice has done so, and
done so in much greater numbers.
Justice Thomas was appointed in 1991. In the time since
then, he's taken 109 reported trips, 5 international trips.
Justice Ruth Bader Ginsburg was appointed in 1993 two years
later. In the time she was on the Court, she took 157 trips,
including 28 international trips. Mr. Payne, yes or no, do you
think Ruth Bader Ginsburg was corrupt?
Mr. Payne. No.
Senator Cruz. Nor do I. Ruth Bader Ginsburg was not alone.
Justice Stephen Breyer, appointed the year later, in 1994, took
233 reported trips, including 63 international trips. Again,
yes or no, Mr. Payne. Do you think Stephen Breyer was corrupt?
Mr. Payne. No.
Senator Cruz. Nor do I. I would point out Justice Kagan has
done the same thing. Justice Sotomayor has done the same thing.
And yet none of my Democrat colleagues care because this is a
political attack directed at a Justice they hate.
And by the way, let's spend a moment focusing on Justice
Stephen Breyer. A delightful human being. Someone I know
personally. Someone who served decades on the Court. Justice
Stephen Breyer repeatedly traveled on the penny of a prominent
Democratic billionaire, the Pritzker family. Now, J.B. Pritzker
is the Democrat Governor of the State of Illinois from which
our Chairman hails. I would be shocked if the Chairman of this
Committee has not had multiple meals with the Pritzker family.
Justice Breyer was a longtime member of the board that
awarded the Pritzker Architecture Prize. Now, what did that
mean? That meant Justice Breyer traveled on the dime of these
Democrat billionaires. In 2019, Justice Breyer traveled to New
York City, to Vancouver, and Paris.
In 2018, Justice Breyer traveled to Ireland, and Spain. In
2016, he traveled to New York, Spain, and France. In 2013, he
traveled to Norway, Sweden, Denmark. In 2012, he traveled to
Beijing, and to London. All of this paid for by the Pritzker
Foundation.
Now, none of my Democrat colleagues are mad about this. And
let me be clear, I'm not suggesting Justice Breyer is corrupt.
What I'm suggesting is this Committee is corrupt because this
is a kangaroo circuit--circus, and I will note, we had 15
Senate Democrats, including 6 Members of this Committee, send a
letter to the Appropriations Committee threatening to cut off
the funding for security at the Supreme Court. The left is
willing to threaten the lives of the Justices.
Justice Samuel Alito this weekend in The Wall Street
Journal said that the attacks directed at the Justices are
making them targets of assassination. This is disgraceful.
Every Senator who signed this letter should be embarrassed. Mr.
Chairman, I ask unanimous consent that this letter be admitted
into the record, and also that the interview with Justice Alito
from this weekend be entered into the record.
[The information appears as submissions for the record.]
Democrats can have disagreements based on law, but this
attempt to delegitimize the Court, this attempt to personally
smear Clarence Thomas, is dishonest and everyone in the media
echoing it is participating in a shameful reprise of 1991's
high-tech lynching.
Chair Durbin. Senator Hirono.
Senator Hirono. Thank you, Mr. Chairman. We have heard that
every other Federal judge, Members of Congress, and
legislative, and executive branch employees are all bound by
strict ethical rules. But this extends beyond Government into
the private sector, where employees from the CEO to the sales
floor are subject to strict codes of conduct.
[Poster is displayed.]
Senator Hirono. For example, Home Depot tells all its
employees that a conflict occurs when their private interests
even appear to interfere with the company's interests, and that
the perception of a conflict by others can be just as damaging.
Home Depot makes clear that gifts of personal travel for an
associate or an associate's family member are never allowed.
[Poster is displayed.]
Senator Hirono. Ally Bank explains that even gifts from
personal friends can appear to be improper if the friendship
resulted from a business relationship involving the bank or the
perceived purpose relates to business involving the bank. The
bank tells its employees to ask themselves the following
questions in evaluating gifts: Does the person or entity
frequently provide or offer gifts to me? Is the gift
extravagant or otherwise not reasonable and customary? Would I
be embarrassed for everyone to know about the gift?
[Poster is displayed.]
Senator Hirono. Similarly, AutoZone tells all its
employees, we don't give or accept gifts, meals, entertainment,
favors, or anything else of value that may inappropriately
influence or appear to influence our judgment. So as we've seen
today, the Supreme Court's ethics rules fall far short of the
clear, binding rules of the executive and legislative branches
and those of the private sector.
Judge Fogel, these companies have their rules posted online
for the world to see. Wouldn't it help restore faith in the
Supreme Court if it, too, had a set of explicit, binding
ethical rules available for the world to see?
Judge Fogel. Yes. I completely agree, Senator. I think it
would. You know, the Code of Conduct for United States Judges,
which all the other Federal judges follow, is online. You can
find it anytime you want. All of the State courts have
something similar and it's available online. And I think it's
potentially very reassuring to the public particularly given
all of the political back and forth. So, yes, I think the
answer is yes.
Senator Hirono. Thank you. Professor Frost, the Supreme
Court has a huge impact on the daily lives of every single
American. For example, the ruling in Dobbs that overturned Roe
has led to chaos in our country over reproductive care. The
decision gutting the Voting Rights Act have resulted in over a
dozen States enacting laws making it harder and harder to vote.
Supreme Court decisions have also sanctioned unlimited
corporate spending in elections and diminished the quality of
the air we breathe. Professor Frost, shouldn't a group of
individuals with such immense power be held to at least the
same ethical rules as all other judges?
Professor Frost. Yes, I agree.
Senator Hirono. I want to get to the personal hospitality.
That was a huge, I'd say, exception to the disclosure
requirements before the Judicial Conference, at Senator
Whitehouse's prompting, clarified the personal hospitality
exception. The judiciary's rules were anemic at best.
If there is even an argument, however unconvincing, that
trips valued at hundreds of thousands of dollars might be
allowed, it shows how far we are from a strong binding code of
ethics. And that is what the Supreme Court needs and if the
Court will not adopt one on its own, we must impose one on
them.
And basically, for all of our panelists, the highest court
in our land should hold itself to the highest ethical standards
and it is so clear that that is not what is happening today.
What is so hard for our Supreme Court to adopt a code of
ethics? It could have done so 11 years ago, 10 years ago, when
our Chairman first brought up the subject. So what is so hard
for them to adopt the code that every other court has to abide
by?
That's what we are facing today and frankly, I can see why
the public has severe questions about the confidence that they
have in our Supreme Court, which seems to hold itself above any
other court, and any of the rest of us in terms of their
ethical behavior. Thank you, Mr. Chairman.
Chair Durbin. Thank you, Senator Hirono. Senator Booker.
Senator Booker. Thank you, Mr. Chairman. Professor Frost,
Mr. Dupree, I really enjoyed both of your testimonies. And I
thought they were speaking to the importance of trying to find
balance. The Supreme Court is probably one of the most
important parts of our Government, and its independence to rule
is critical.
And I appreciated Mr. Dupree injecting some skepticism
about how anything that we do. If it can be exploited by this
very political institution called Congress, is somewhat
problematic and something that I would tread on very lightly.
And I enjoyed both of your testimonies for that reason.
Professor Frost, can I just ask you there are some
legitimate concerns, I think, that Mr. Dupree brought up. And I
wonder if you could just talk to me. This balance between
separation of powers, and checks and balances, which you spoke
to so eloquently is really what I'm looking at myself.
There's been unsurprisingly a lot of political talk today
in this hearing. But at the end of the day, I think America
wants their Supreme Court--something I learned at Yale Law
School, if I learned anything there, was this idea of there
being the appearance of impropriety, and how problematic that
is for a lawyer, not to mention the highest court in the land.
And as was said in some of the early writings, is that, you
know, the Supreme Court has no army. It vests its power in the
consent of the governed, and these are very fundamental ideals.
And I'm just wondering if you could help me with that balance.
Professor Frost. Yes. And thank you for the question. So I
hear Mr. Dupree's concern that we would not want ethics rules
to be used as some way in which to penalize Justices for their
decisions. And in fact, I started my testimony by saying
decisional independence is vital.
But I actually think it's the absence of ethics rules that
is harming the Court and leading to the problems we see today
in terms of public perception. If ethics laws were strengthened
or passed by this Congress, they would apply to all the
Justices. If there was more transparency in the Court and its
process for dealing with ethical problems, then we wouldn't
have certain reporters publicizing certain Justices' problems.
We'd have transparency about each and every Justice, whether
they were abiding by the rules and what should happen next.
So I think it's the absence of laws that is leading to the
problem of political tax on Justices. If we had better
legislation, we'd see less of that.
Senator Booker. And what about concerns you would have when
we enter into this space? That is not something we regularly do
in writing this legislation. What are some of the reasonable
concerns that you would have about how that legislation is
narrowly tailored to the end that we are looking for?
Professor Frost. Well, so first, and I think this is in the
proposed legislation, it would be best for the Supreme Court
itself to draft a code of conduct for itself. I agree with
others on this panel who have said that the code of conduct for
the lower courts--which the Supreme Court says it follows or
uses as guidance--it maybe needs to be tweaked or changed in
various ways to deal with the unique nature of the Supreme
Court.
So the Supreme Court itself should come up with a code that
it drafts for itself. But legislation could tell the Court, you
must do this now because we've been waiting since Elena Kagan
testified that in 2019 they were seriously considering doing
it, and they have yet to take action.
Senator Booker. It's almost stunning that they haven't to
me. I don't want to ask you to speculate as to why not.
Clearly, America's faith in their Court, on both sides, people
identify as Independent, Republican, or Democrat, they're
losing their faith in this institution and something that is--
you know, I'm an X Generation guy, and maybe like many of my
generation, we took for granted the rock-solid nature of our
democratic ideals and principles until we started seeing them--
very unprecedented things happening, including the Capitol
being overrun for the second time in American history--not
happening before since the War of 1812 and 1814.
And so could you maybe, at least, explain this idea that
the Supreme Court--maybe what the Founders had in mind in terms
of its urgency to self-govern? To do things that would protect
itself from that kind of loss of confidence.
Professor Frost. Yes. I mean, I think the Framers of the
Constitution realized how important it was to have a judiciary
that was insulated. That its decisions were insulated from
political pressure. But equally, the Framers realized that they
would want Congress to play a role in the establishment of the
courts, the lower courts, which are the Congress' choice to
create them, and the Supreme Court, which must exist, but does
not control most aspects of its administration, like its size,
like the quorum requirements, like when it meets.
Even significant aspects of its jurisdiction are controlled
by Congress as the Framers intended. And what they intended to
do was have Congress ensure that the courts run effectively to
serve the Nation's interests. And that's what this legislation
will do.
Senator Booker. So the last point I want to make, which is
something that, again, in all my studies of the founding of our
country, this worry about concentrations of power, this worry
about the corruptibility of officials, should they not have
checks and balances? We have seen that writ large in our
society, in the other branches of Government, how corruption
happens.
Because you get elected to the Supreme Court, you are not
beyond the corrupting influences of our society which are often
revolving around enormous influences of wealth. And so could
you just give me one more point on if we are going to hand on a
democracy stronger than we inherited or at least as secure, is
there some wisdom to glean from the understanding the Founders
had about the fallibility of the people that hold these sacred
offices?
Professor Frost. Yes. The Framers were very clear that
there would be partial control of each branch over the other
because no one should be unaccountable. And, ``ambition must
counteract ambition,'' as James Madison put it.
Senator Booker. Thank you very much.
Chair Durbin. Thanks, Senator Broker. Senator Hawley.
Senator Hawley. Thank you very much, Mr. Chairman. Thanks
to all of the witnesses for being here. I want to talk about
this letter that I think 11 Democrat Senators signed dated
March 31st, 2023--it's to Members of the Appropriations
Committee.
I'm just looking here at the signatories. It includes quite
a number of Members of this Committee, as well as others. This
is a very interesting letter to me. And I just want to look a
little bit at some of the language, and what these Senators are
asking for.
[Poster is displayed.]
Senator Hawley. They say that, ``Congress ought to impose a
code on the Supreme Court.'' They say, ``Congress has broad
authority to compel the Supreme Court to institute reforms.''
Compel. And then, they go on and say, ``Congress'
appropriations power is one tool for achieving these changes.''
Compel. Now, we're going to compel the Court, we're going to
use the appropriations power. How to do it? Well, they're very
specific. Congress should, ``withhold appropriations.''
Withhold appropriations.
And then they go on to say, ``nothing stops Congress from
treating the judiciary any differently than any other entity of
Government when faced with judicial recalcitrance.'' So here we
have judicial recalcitrants. These darn judges won't do what we
tell them to do. So we're going to compel them to do what we
want, and we're going to use the appropriations power.
All right, what appropriations? Well they ask for $10
million to be withheld. That's an interesting number to me. $10
million. $10 million. Why $10 million? Well, let's have a look
at the Supreme Court's 2024 budget request.
[Poster is displayed.]
Senator Hawley. What do we see? Well, we see $4 million of
request for security funding from the CHIPS Act. $4 million.
Then we see an additional $6 million of more security
funding that the Court is asking for. This is their 2024 budget
request. The Supreme Court, it's asking for $4 million in
security funding from one source, and another $6 million over
and above: 4 plus 6 equals 10; $10 million of security funding
that the Court is specifically asking for this year in their
budget request. And that just happens to be, magically, the
exact same number that my Democrat colleagues want to deny the
Supreme Court unless they stop their judicial recalcitrance and
submit to the compulsion of this body.
So in other words, the threat is, we will deny you security
unless you do what we want. Let me say it again. We will deny
you security unless you do what we want. We had an assassin
come to the home of Justice Kavanaugh and try to murder him. We
have had credible threats on the lives of other Justices. And
now Members of this body say we will deny you security for you,
your families, your children, unless you do what we want.
Extraordinary. Extraordinary.
Judge Mukasey, can I just ask you, longtime distinguished
jurist, former Attorney General of this country, do you think
it's appropriate to threaten the security of Justices of the
United States and their families in order to get them to comply
with the wishes of this body?
Judge Mukasey. No.
Senator Hawley. Have you heard of something like this being
done before?
Judge Mukasey. I have not.
Senator Hawley. I haven't either. And I have to say, at a
time when we have had three different credible assassination
attempts or threats against Justices, we still have people
illegally going to the Justices' home to attempt to influence
their decisions in cases. No one has been prosecuted for those
violations.
We have constant threats and danger to their children. We
had radicals post publicly the school location of one of the
Justices' children. And in that context, to say that we will
deny them millions of dollars in security funding unless they
do what this body wants, I think is the height of
irresponsibility. And frankly, I can't believe that I'm seeing
it.
I guess it's just of a piece with what we've seen from the
Majority Leader who said that--what was it? Schumer, he said,
Kavanaugh and Gorsuch, that, ``you will reap the whirlwind.''
Well, I guess we're reaping the whirlwind now. That they're
just on their own unless this judicial recalcitrance stops. I
hope that we don't have to see another assassination attempt. I
hope we don't have to have a Justice actually killed before
this body will take judicial security seriously and stop its
attempts to coerce an independent branch of Government. Thank
you, Mr. Chairman.
Chair Durbin. Since the assertion has been stated and
repeated here, I want to make it clear that it was the
Democrats who led the charge to pass the Daniel Anderl Judicial
Security and Privacy Act last Congress after the taking of the
life of Judge Esther Salas' son at their home. That bill was
held up on the Senate floor for nearly 1 year by a Republican
Senator, unfortunately. The cause of security for our members
of the judiciary is bipartisan.
Senator Padilla.
Senator Padilla. Thank you, Mr. Chair. You know, I continue
this important and timely dialogue. As the Supreme Court itself
stated in Buckley v. Valeo, quote, ``of almost equal concern as
the danger of actual quid pro quo arrangements is the impact of
the appearance of corruption,'' end quote.
While this case dealt with financial contributions to
elected government officials, the same logic applies to
appointed judges. There's very serious concern of actual
corruption in the absence of strictly enforced, rigorous
ethical standards for our judges.
But as the Buckley opinion made clear, there's also a
serious concern that public trust in our highest court is
damaged even by the appearance of impropriety, weakening the
faith in our judicial institutions as a whole. Now, what's
more, as a former Federal judge and advisor to Vice President
Mike Pence--speaking of Mike Luttig here, he said in a
statement to this Committee--not some far left or whatever
tagline some of my Republican colleagues would assign to Mr.
Luttig. He said, quote, ``this is emphatically not a partisan
political issue and must not become one,'' end quote. And I
agree.
This is an issue of importance to all Americans. My first
question is this, and I'll address it to Professor Frost. Can
you explain the effect of when judges take actions that call
into question their own ethical standards, and how that impacts
public faith in the courts?
Professor Frost. Yes. It does so in two ways. First, when
the law is binding on the Justice and the Justice does not
follow it, I think it both undermines the integrity of the
court system and also raises the question of whether the
Justice is following the law in all the other cases because, of
course, the Justice is responsible for administering the law.
And second, you made the point about the appearance of
impropriety. So I think it's very important for judges and
Justices to be aware that even if they are doing nothing
personally wrong, they're not trying to be bribed if they
create the appearance of that to others, that is a problem for
the legitimacy of the judiciary.
Senator Padilla. So even the appearance of impropriety can
be just as damaging as actual impropriety when it comes to the
public trust in our court system?
Professor Frost. Yes. And in fact, the code of conduct that
applies only to the lower courts, in which the Supreme Court
does not have to follow, specifically states that: that the
appearance of impropriety is as much of a problem as actual
impropriety.
Senator Padilla. So, speaking of, according to Federal
statute, all judges are required to recuse themselves when they
either have a financial interest in the outcome of a case or
where there's otherwise a strong possibility that their
decision could be biased.
The Chief Justice, along with some of today's witnesses,
argue that the Supreme Court cannot be subject to sensible,
robust recusal rules because the Constitution demands that all
nine sit and recusal would invite gamesmanship over which
Justices might hear a case. That's the argument, anyway. I'll
address this question to Mr. Payne. Is it accurate that nine
Justices always make decisions together?
Mr. Payne. No. Sometimes Justices recuse, and all nine are
not active on a case. But I also will point out the important
point, that recusal does not necessarily mean that the judge
has to get off of the case if you have a procedure where the
recusal disclosure, that is, the rationale for not recusing is
made public, or the decision to recuse is made public. That
also can provide what the public is looking for with
transparency.
Senator Padilla. So I want to bring together the earlier
topic in question of actual impropriety versus perceived
impropriety, and now the dynamic of recusal. Back to Professor
Frost.
Bloomberg recently reported that Harlan Crow, the
billionaire Republican donor that gave Justice Thomas hundreds
of thousands of dollars' worth of gifts and travel over two
decades, had a financial interest in a case appealed to the
Supreme Court in 2005. And that there's no indication that
Justice Thomas recused himself from that matter.
In your opinion, how does a situation such as this, with
the absence of recusal, impact the public's faith and trust in
the Court system?
Professor Frost. Yes. Again, it's two problems. One,
there's the possibility, or certainly the public would be
reasonable to think that there might be bias when there's a
financial interest by a Justice in a case that that Justice is
hearing.
And second, there's the broader point of it's just
disturbing to see any Justice not follow a law that applies to
them. They're responsible for administering the laws, and they
should follow the laws that apply to them.
Senator Padilla. Thank you very much. Thank you, Mr. Chair.
Chair Durbin. Senator Welch.
Senator Welch. Thank you, Mr. Chairman. We have two
competing narratives here. We have 5 witnesses and two
opinions. Three witnesses believe that it's within the power of
Congress to act. Two witnesses believe it's a violation of
separation of powers. We have a dispute here and disagreement
among, basically, Republicans and Democrats about what the
motivation is of an ethical investigation, whether it's just a
proxy for the competing views about what the outcome of the
decisions were.
I happen to strongly believe that the Court--or pardon me,
the Congress does have authority, and I won't rehash that. But
I would ask this. Wouldn't it simply be wise for the Chief
Justice, who is the steward of the public reputation of the
Court, on his own volition, to adopt a strong code of conduct
that the Court would adhere to? Attorney General Mukasey.
Judge Mukasey. One-word answer, no. Because the strong code
of conduct that you hypothesize would then have to be enforced
with a mechanism that would involve the questioning of
individual Justices. He has in his letter to this Committee, he
has outlined the procedures that are used in cases of recusal.
Senator Welch. So let me ask this----
Judge Mukasey. He's outlined the fact that they file the
same disclosure reports that----
Senator Welch. So if he had----
Judge Mukasey [continuing]. Other judges file.
Senator Welch [continuing]. A code of conduct that included
a Supreme Court Justice cannot take a bribe. Something that
they can't do. You would say that would be improper because
they would be subject to enforcement outside of the Court?
Judge Mukasey. No. I would say that would be redundant
because----
Senator Welch. Mr. Payne----
Judge Mukasey [continuing]. They are subject to the same
laws of general application that apply to----
Senator Welch. Okay. Thank you.
Judge Mukasey [continuing]. Federal employees. They could
be prosecuted----
Senator Welch. Thank you. Mr. Payne.
Judge Mukasey [continuing]. And they could be impeached.
That's not the same question.
Senator Welch. Thank you. Do you have a view as to whether
it would be prudent for the Chief Justice of the Supreme Court
as the steward of its reputation to promulgate--or pardon me,
I'll ask you, Mr. Dupree--a code of conduct that would apply to
all?
Mr. Dupree. I think the Chief Justice, at least, Justice
Kagan when she testified before the House several years ago,
she said that the Supreme Court was actually considering doing
that. They obviously haven't----
Senator Welch. No, I'm just----
Mr. Dupree [continuing]. Done that.
Senator Welch [continuing]. Asking, you know, as a citizen,
you know, we have different points of view, but what is the
problem with the Supreme Court Justice saying, ``Let's have a
code of conduct that applies to all of us''?
Mr. Dupree. I think the problem, at least the potential
problem, would be the one that Judge Mukasey identified. Which
is to say, what is the enforcement mechanism? Is there going to
be some superior tribunal to the Supreme Court----
Senator Welch. I think that----
Mr. Dupree [continuing]. That is going to disqualify
Justices.
Senator Welch [continuing]. Puzzles the average Vermonter.
But I want to go on to another issue. There's been discussion
that there is an agenda here because many on our side disagree
with some of the Court decisions. Let me just admit, I am one
of those who disagrees with a lot of the Court decisions.
We've talked here about separation of powers. Which I agree
with. But we've also talked about checks and balances. And my
view is that the erosion of support for the Court has less to
do with the ethical issues and more to do with the public sense
that it has completely disregarded the rights of the majority
through their elected representatives to pass laws to protect
the public interest.
Now, I'll ask you again, Attorney General. The Supreme
Court has done this before, in my view. The Dred Scott
decision. They said African Americans couldn't be citizens,
they said Congress could not legislate against slavery in the
territories. Historically, do you agree with that decision?
Judge Mukasey. With Dred Scott?
Senator Welch. Yes.
Judge Mukasey. Hell no.
Senator Welch. Good. But that was the Court interfering
with the authority of Congress to legislate on what was a
majority point of view to start pushing back on slavery.
Judge Mukasey. That was the Court making a disastrous----
Senator Welch. That's correct.
Judge Mukasey [continuing]. Error.
Senator Welch. And in the Bruen decision, which was where
the New York legislature was attempting to protect its own
citizens from the violence of rampant gun violence, the Supreme
Court said they didn't have authority to do that. And that is
completely divorced from what the majority of American citizens
want about gun safety. What say you about that?
Judge Mukasey. What I say about that is that the Bruen
decision stands on its own rationale. And it does not have to
do with denying anybody's rights, or denying anybody's----
Senator Welch. It denied----
Judge Mukasey [continuing]. Protection.
Senator Welch [continuing]. The legislature the right to
protect the citizens who elected them. What about----
Judge Mukasey. What it says----
Senator Welch [continuing]. The Lochner decision. No, let
me ask about the Lochner decision.
Judge Mukasey. Which has been overruled.
Senator Welch. At the beginning of the Progressive Era--
yes, it was overruled, thank goodness.
Judge Mukasey. By the Supreme Court.
Senator Welch. At the beginning of the Progressive Era, the
Court, according to Holmes--who I happen to think was a pretty
good Justice, and he was a dissenter--said that what was the
rationale of the Court's decision prohibiting the New York
legislature from protecting the workers from working 60 hours a
week, that that was based on the Court's adherence to not a
legal principle, but to an economic doctrine of laissez faire.
Do you agree with that decision?
Judge Mukasey. With the dissent or with Lochner?
Senator Welch. With the basis of the decision where the
Court essentially interfered with the legislative capacity to
pass laws in this case to protect against abuse of wage and
hour regulations imposed by the employer?
Judge Mukasey. I don't agree with it. And more to the
point, the Supreme Court didn't agree with it because they
reversed Lochner.
Senator Welch. But here's the point that I would want to
make, and I appreciate your pushback here. The checks and
balances component of the Constitution is being disregarded.
The Congress is not autonomous. We are all elected, and we
reflect different points of view. But this Congress, as in the
Lochner Congress, as in the Dred Scott Congress, has the
authority and the responsibility to act on behalf of the
citizens who elected them, and not have that impeded by a
Supreme Court unless there's something unconstitutional. The
decision-making authority of the Court, we're not contesting. I
yield back. And I apologize for going over my time.
Chair Durbin. Senator Tillis.
Senator Tillis. Mr. Chair, I think it's the only day where
Senator Welch shouldn't have to apologize. It's his birthday.
Happy birthday.
Senator Welch. Thank you.
Senator Tillis. Thank you all for being here. I actually
came with some prepared comments to talk about what I thought
was covered very well by Senator Graham and Senator Kennedy. So
I'm not going to talk about the current state of affairs. But I
think that our behaviors, and the behaviors of some people in
this country have created a really toxic and very dangerous
environment for the Supreme Court and the judiciary down the
line.
And that's what we need to be aware of. We have to stop
this here because it won't end here. We'll have protests at
district judges' houses. We will have circuit court judges
stalked. I mean, we've got a serious challenge here, and I
think it's in large part on Congress to de-escalate the
situation.
But, Mr. Dupree and Professor Frost, in y'all's opening
statements, you looked like you were preparing your opening
remarks for a debate on the constitutionality of what we're
considering here. And so I'm going to create an ad hoc debate
between the two of you and maybe allow others, if you want to
raise your hand and opine.
But you laid out in 5 or 6 minutes a very strong case for
saying that any actions we would take here could arguably be
unconstitutional. I do think stipulating to what Professor
Frost said in her opening comments, there is clearly a role for
Congress to play, and we have in the past with creating the
structure for the Article III branch that was mandated under
the Constitution.
But I'm kind of curious about Professor Frost's idea of
where the line goes because I could have read your comments to
say that all of the proposals that are before us in the Senate
and the House would pass constitutional muster.
I think the one that I found most interesting that I'd like
your opinion on is the proposal--I don't recall the bill
number--that really created the structure where circuit and
district courts were really going to be empowered to govern the
proceedings of the Supreme Court. Maybe if you're aware of this
particular bill, we can go right to your rebuttal. But that
seems to be far afield from anything that the Founding Fathers
would have conceived congressional action being appropriate.
Would you elaborate that on that for 30 seconds?
Mr. Dupree. Absolutely, Senator, and thank you for the
question. The first point is yes, I mean, I think it just is
self-evident that you can't constitutionally have a system in
which the Congress vests inferior tribunals in our Federal
judiciary with supervisory authority over the United States
Supreme Court.
As you know, and as this Committee knows, you know, the
opening of Article III of our Constitution vests the judicial
power in one Supreme Court, and such lower courts as the
Congress may from time to time ordain and establish.
And so I think the Framers necessarily understood that we
have a pyramid. We have one court at the top, we have inferior
tribunals below it. And it stands to reason that you cannot
vest those inferior tribunals with supervisory authority,
including the power to disqualify from a case the Supreme Court
Justices.
Senator Tillis. Okay. Professor Frost.
Professor Frost. Yes. So if the legislation you're
referring to says that the judges on the lower courts will be
reviewing the ethical conduct of the Justices, that is maybe
their financial reporting and not their recusal decisions, I
don't see a constitutional problem. The same way there's not a
constitutional problem with a Justice being prosecuted if they
commit a crime like any other judge.
So, no, the lower courts couldn't review the Supreme
Court's decisions for the reasons that Mr. Dupree just gave,
but they certainly could review their ethical conduct off the
Bench as a constitutional mandate.
Senator Tillis. What do you think about the--you know, we
are the political body. We were envisioned to be that. And
right now, they seem to be all doing very well. But it would
just seem to me that you'd be creating a framework to where the
outside could game it and divide the courts.
I mean, suddenly you'd have a group of district court
judges who would have one agenda that they would be advancing.
You would have others, another agenda, and probably some of the
middle, not unlike what we have here on any policy matter. But
it just seems ripe for really seeding the field with the
politicization of the Court. Starts with ethics, but where does
it go from there?
Mr. Dupree. Well, I think that's a very serious concern,
Senator, I would say in two respects. One is that there's a
serious concern that litigants could try to game the system to
determine the Justices who would be hearing their case. In
other words, some of the proposals before the Congress right
now would allow third parties to challenge the ability of a
Justice to participate in a decision.
And if that provision were to become law, I promise you,
someone who litigates regularly in the United States Supreme
Court round one of any litigation, would be trying to knock out
the Justices who you think might be opposed to you. That's
untenable.
Number two, the problem is if you create a system where
individuals are incentivized and encouraged to file ethical
complaints, I worry that long term, that ultimately----
Senator Tillis. It'll be a cottage----
Mr. Dupree [continuing]. Will corrode----
Senator Tillis [continuing]. Industry. We already have it
in other branches of Government. It will be a cottage industry.
It will be politicized. We will diminish, I think, the
integrity of the Article III branch as a result. You know, for
my part, I think the exchange of information here may be
helpful. What I think is more important is that I think that
the Supreme Court and clerks are watching this right now. We
have heard examples of instances of behavior at either end of
the ideological spectrum that was unacceptable behavior.
I, for one, hope that this does nothing more than turn into
an oversight hearing, not something that lays the groundwork
for congressional action. And that the Supreme Court who
rightfully declined with the concurrence of all Justices not to
come before the Committee. That would be a political circus,
and almost unprecedented in terms of American history to have a
hearing of that nature with the Chief Justice.
So I just hope--what I care about most is not your
confidence in the judicial system, not necessarily the
confidence of any one Member here, but the confidence of the
American people. And I do hope that this process has been
instructive to an Article III branch who should independently,
in the same way that I have an office code of conduct that all
my staff had to read and affirm every year.
I don't know how many Senate offices have that. Probably
not many. But I think that they could update, refresh, and
address the concerns without requiring any congressional
action. And if they act in the near term, maybe this Committee
could be instructive. Thank you for your time.
Chair Durbin. Senator Ossoff.
Senator Ossoff. Thank you, Mr. Chairman. And thank you to
our panelists for joining the Committee today. Judge Fogel, the
Judicial Conference has issued a code of conduct which applies
to the district and circuit courts. Correct?
Judge Fogel. Yes.
Senator Ossoff. And as I understand it, one of the tenets
of that code is that judges should avoid any conduct that can
lead even to the appearance of a conflict of interest. Correct?
Judge Fogel. That's correct.
Senator Ossoff. And why is that important?
Judge Fogel. Because if there's an appearance of a conflict
of interest or an appearance of impropriety, then the people
who are affected by the decisions that that judge or judges
make rightly lack confidence in it. They suspect that it's not
a fair decision. That there are improper influences.
Senator Ossoff. The appearance of a conflict of interest--
--
Judge Fogel. That's correct.
Senator Ossoff [continuing]. Can undermine public
confidence in the integrity of the judiciary. Correct?
Judge Fogel. That's correct.
Senator Ossoff. Judge Mukasey, putting aside the question
of how such a code of conduct might be applied to the Supreme
Court, and I recognize and acknowledge that there are
separation of powers and constitutional concerns that need to
be carefully weighed in considering the design of such a
system. Do you agree with Judge Fogel that the appearance of a
conflict of interest can reasonably undermine public confidence
in the impartiality of a judiciary, whether it's a district, or
a circuit, or the Supreme Court?
Judge Mukasey. Of course. So long as you articulate what it
is that appears. People often say the appearance of conflict
and feel that that's just kind of a nice, vague term that they
can use to cover a concern about something else. I think if you
allege, in particular, as to a particular Supreme Court Justice
that there is an appearance of a conflict, or an appearance of
impropriety, you have some obligation to articulate what it is
that appears. Otherwise----
Senator Ossoff. Would you agree, Judge--forgive me, you
agree, Judge Mukasey, with the principle----
Judge Mukasey. Yes.
Senator Ossoff [continuing]. That, as for district and
circuit court judges, where they are advised and governed in
part by a judicial code of conduct through the Judicial
Conference that they should avoid any appearance of conflict of
interest or impropriety because it can reasonably undermine
public confidence in the impartiality of a judiciary, that the
public could also reasonably, depending upon the facts, lose
confidence in the integrity of the Supreme Court depending upon
the conduct of Justices?
Judge Mukasey. Right. And it has to be reasonable. I recall
writing on that subject when I was asked to recuse myself
because I am a Jew and a Zionist from judging a case involving
some terrorists. I refused. And I wrote rather long and
elaborately on that topic.
Senator Ossoff. That's right. But you did not, Judge
Mukasey--and I ask this rhetorically, and I know the answer is
no. You did not, as a judge, or do not as a judge accept
foreign travel and hundreds of thousands of dollars from
politically active parties. Correct?
Judge Mukasey. No, I did not.
Senator Ossoff. And I think reasonably you might have been
concerned that such conduct would have created some public
concern about your impartiality and probably would have avoided
that conduct even if it weren't strictly illegal for that
reason. Correct?
Judge Mukasey. I was never offered that conduct because I
don't know people who----
Senator Ossoff. But that wasn't my question. My question
is, as a judge you quite reasonably and properly would avoid
accepting such lavish gifts because of the concern that it
could create public doubt in the impartiality of your judgment.
Is that right?
Judge Mukasey. The only time that I accepted travel and
accommodations was from a seminar in economics that I found
enormously valuable that was then obliterated because it was
said that that created the appearance of conflict.
Senator Ossoff. And Judge Mukasey, I'm not in any way
questioning or even seeking to interrogate your personal
conduct. What I'm asking you is that as a judge, is it fair to
say that you most likely would have declined an offer of
foreign travel worth hundreds of thousands of dollars because
quite reasonably, you would have had the concern that public
disclosure of such travel could have undermined public
confidence in the impartiality of your judgment?
Judge Mukasey. Simply because it amounted to--I mean, if
somebody took me--I mean, if I were a district judge and
somebody wanted to fly me on his private plane on a vacation
with his family, and I were friendly with that person. Would I
have refused and endangered the friendship? I'm not sure that I
would have.
Senator Ossoff. I think the American public sees that kind
of conduct and quite reasonably asks the question whether it's
appropriate. And my impression is that most judges at the
district and circuit level considering the guidance in the
judicial code of conduct--but, Judge Fogel, I don't know if you
agree with me--would refrain from such acceptance for that very
reason.
Judge Fogel. Well, I think it's interesting, Senator. The
California Code of Conduct which is very similar to the Federal
one, there actually is guidance. That when you receive social
hospitality, you receive a gift like we're talking about here,
that you should consider the size of the gift. That's one of
the factors you should consider. So that it's one thing if
somebody takes you out to dinner. It's another thing if
somebody flies you on a private jet to some faraway place.
That actually is not in the Federal code of conduct. I
think it is one of the hard ethical questions here, is--you
know, you can focus on whether one's accepting a gift like that
should be disclosed, which is something that's under the Ethics
and Government Act.
And then there's the question of whether the sheer size of
the gift creates an appearance. And I think there are different
opinions about that. But I think when you're talking about the
appearance of impropriety, you need to look at the entire
context. And I agree with Judge Mukasey that what is a
reasonable question about whether the gift or the hospitality
or whatever it is, is so large that it raises issues of undue
influence. I think it's a holistic type of inquiry.
Senator Ossoff. Thank you, Judge Fogel.
Chair Durbin. Senator Blackburn.
Senator Blackburn. Thank you, Mr. Chairman. Before I begin
my questions, I know that a lot of my colleagues have addressed
what they see as the hypocrisy of this hearing, and the
continued effort by our colleagues across the aisle to
politicize, or smear, or delegitimize the Supreme Court. And I
find that disappointing, especially when you look at what has
transpired in the past year with our Justices and the threats,
the assassination attempts, the protest outside of their home,
simply because people disagree with the decisions that they
have reached. And I find it just completely inappropriate.
General Mukasey, I want to come to you and talk for a
moment about the safety of the Justices. And Section 1507,
which some of my colleagues have raised today, that section
makes it illegal to protest outside of a judge's residence if
the intent is to influence that judge's decision-making.
And we've heard what the protesters outside of the
Justices' homes were saying post the Dobbs decision. Things
like, and I'm quoting some of those, ``If you take away our
choices, we will riot.'' And another one they would chant was,
``No privacy for us, no peace for you.''
In other words, if the Justices were not going to vote
their way on Roe and Casey, then the protesters were going to
keep the harassment up. And as we have heard, they have done
that as they have protested Roe v. Wade, as they have protested
the Dobbs decision.
And despite all of this, the Biden DOJ has refused to
enforce Section 1507. And that's why I introduced the
Protecting Our Supreme Court Justices Act, which increases the
jail time for anyone who tries to influence a judge's decision-
making in this manner.
And I would just like to ask you what more can we do to
send this message that what they're doing is wrong--to allow
these protesters outside of these Justices' homes. And you've
got Justices that I know fear for not only their safety, but
the safety of their families. And we've talked about that
today. And I do see increasing that jail time from a year to 5
years as one step that we can take. And we should pass that and
protect our Justices.
Judge Mukasey. Well, increasing the penalty may very well
be appropriate, but I think that the key here is there have
been no arrests in those cases. None. Zero. Nada. And to say
that that's within the control of the marshals who provide the
safety, I think really doesn't pass the laugh test. And to
suggest that somehow these people are exercising First
Amendment rights when First Amendment rights are subject to
place, time, and manner restrictions, is really disingenuous.
If you had arrests, I'm not entirely sure that increasing the
penalty would be necessary. But in any event, it starts with
that.
Senator Blackburn. It would be nice to see some people held
to account for what they are doing. Does anyone else on the
panel have a thought on what ought to be done? Would arrest
send the proper message that what they're doing is
inappropriate?
Mr. Dupree. I think both branches, frankly, have an
important role to play in protecting, you know, the brethren,
so to speak, on Article III, the Supreme Court. I think that
the executive, as Judge Mukasey said, can play a much more
aggressive role in law enforcement, both in protecting the
Justices, particularly when they're in their homes,
particularly when threats are directed at the children of the
Justices. They can make arrests, and they can just basically
take those law enforcement responsibilities seriously.
I mean, I think we all can recognize that peaceful protest
has an honored role in our society. And, you know, you want to
protest on the steps of the Supreme Court, that's one thing.
But if you're targeting the Justices in their home and their
children, I mean, that goes well beyond the line of any----
Senator Blackburn. Let me ask you this then. What about
Senator Schumer's threat when you heard it? Of course, we've
talked about that some today. Do you see that as an ethical
breach of conduct of one branch of Government to another?
Mr. Dupree. Well, I think if you have a United States
Senator, you know, on the steps of the Supreme Court saying
what, I think, most reasonable people interpreted as a threat
to individual Justices by name, if they don't vote a particular
way and vote the way that the Senator prefers, that they will,
you know, inherit the whirlwind, or reap the whirlwind, or
whatever he said, that's obviously not appropriate. I mean, you
can't have a system that functions when you have Members of the
Senate standing on the steps of the Supreme Court threatening
the Justices in particular cases.
Senator Blackburn. That's right. Three co-equal branches.
And that's part of the point, I think, that is so important to
make, Mr. Chairman. That we recognize that. Thank you all.
Chair Durbin. Thanks, Senator. Mr. Payne, you've asked for
a chance to respond, if I understand it, to----
Mr. Payne. Yes.
Chair Durbin [continuing]. Questions raised earlier.
Mr. Payne. Yes. Just simply clarifying that when Senator
Kennedy asked me about tweets that I made, I didn't make the
tweets myself. It wasn't my words. But it was pointed out to me
that I did retweet a news article that did have additional
commentary with that retweet. So I just want to clarify that
for the record.
Chair Durbin. Thank you. I also want to clarify that when I
had sent the letter of invitation to Chief Justice Roberts, he
responded directly to me. The other Justices signed on to his
ethics statement that was accompanying that response. So they
did not technically decline an invitation. It never was offered
to them. I said to Senate, in my invitation to the Chief
Justice, he could come join us, or any member of the Court
could as well. So point of clarification.
I'm going to close this by saying, thank you, and allowing
Senator Whitehouse, if he has anything he wants to add at this
point.
Senator Whitehouse. Thank you. I think what we have here is
a situation in which very clear policies and procedures exist
in the judicial branch of Government and are generally
administered through the circuit courts of appeal. And they
include very basic things like having a place where a complaint
about a judge's ethics can be lodged. The Supreme Court doesn't
have that.
They include very basic things like having staff people
assigned to review any complaints that come in, sort out what
makes sense and what doesn't. Do the usual filtering that
people have to do of complaints that come in. I think every
circuit court does that. The Supreme Court does not.
Beyond that, once you've done the filtration, if it looks
like a complaint has merit, a staff attorney's work with regard
to the other Federal judges is to take a look at the complaint
and to do a little bit of a factual investigation so there's a
record to decide what's true and what isn't. And that can
include asking a question of the judge about what their
recollection is of the situation or what their justification is
so their factual record gets made. Again, the Supreme Court
doesn't do that.
I think there's plenty of room well within even the more
extreme views here to see this as to--forgive me, Mr. Dupree,
but I consider these to be noncore duties of the Court--to
comply with these statutes that are permissible to regulate.
The Court has already agreed to follow, and respect, and comply
with the Judicial Conference rules and procedures.
It doesn't seem much to have them also ask, not just
comply, but ask what does it take to comply and get an answer
in advance so they know whether it's complied or not. In fact,
that's what Judge Fogel's Financial Disclosure Committee was
set up to do.
And to take it another step further, to make the advice
that they get--which could perfectly easily be from other
judges, it's just advice--public so that there's a clear
contrast between what every other judge has to live by for
rules and what the Justices arrogate to themselves is the rules
that they have to live by.
And I'll close by reminding everyone of Ben Franklin's Poor
Richard's Almanac, which advised that the best way to show that
a crooked stick is crooked is to put a straight stick down next
to it. And I think the circuit courts of appeal and the way
they behave right now, overseeing the ethical conduct of
Federal judges, presents that straight stick. Thank you very
much, Chairman, for the hearing.
Chair Durbin. Thanks, Senator Whitehouse. I'm going to
close with a personal note. It was my good fortune as a college
student to be an intern in the office of the United States
Senator named Paul Douglas from Illinois. And he inspired me to
aspire to this life. He was, I think, the penultimate leader
when it came to questions of ethics and took it to a level that
many in elected office in the 1960s wouldn't consider.
He never accepted a gift worth more than $2.50. $2.50. And
he made an annual disclosure in detail of his net worth and his
income tax returns. Very few, if any, others did it. One person
did, his disciple, Paul Simon, whom I also worked with for many
years.
I picked up that tradition of making a complete detailed
income disclosure, net worth disclosure every single year. I
don't know that anybody even notices. My wife did for a few
years when we had no money. But no one else really notices
that. My goal is to try to make enough disclosures so the
questions of my own ethical judgment would at least have to
consider that disclosure.
I don't know what it takes to restore people's faith in our
Government or our courts. But this was a good-faith hearing on
an issue that I raised 11 years ago. It had nothing to do with
President Trump. He wasn't the President at the time. It had
nothing to do with the agenda of the Court today. That was long
before that ever happened. I still think this is a valid point.
What I hear from the Committee today is it's a partisan
point. This is now a Democratic cause. I don't think Judge
Luttig, or Judge Fogel, or others, Mr. Tribe, came to this on a
political basis. They are looking for a matter of principle and
I still think it's valid.
I made my first entree on this issue after the Justice
Thomas disclosures with a personal letter. First with a phone
call, then with a personal letter to the Chief Justice. I
respect him. I really think this is his Court and he can make
of it what he wishes. And he had a chance to use us if he
wanted to. He didn't choose to. Or some other means to restore
the confidence of the American people, at least partially, in
the Court.
So I hope that regardless of what comes of this matter and
these pending matters of legislation, that the Court will in
fact heal itself by the Justices' leader--the Chief Justice as
leader of the effort. We're going to have a number of
statements in the record that will be added with the unanimous
consent.
[The information appears as submissions for the record.]
And there may be some questions coming your way. It's rare,
but it happens. And if you receive them, I hope you'll respond
quickly. Thanks very much for your patience today. The hearing
stands adjourned.
[Whereupon, at 1:19 p.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
A P P E N D I X
Submitted by Chair Durbin:
Accountable.US, statement....................................... 119
Alliance for Justice, statement................................. 124
Bauer, Bob, and Rodriguez, Cristina, letter..................... 127
Citizens for Responsibilityand Ethics in Washington (CREW),
statement..................................................... 129
Durbin, Hon. Richard J., et al., letter to Hon. John Roberts,
Chief Justice of the United States Supreme Court, February 13,
2012.......................................................... 150
Fix the Court, statement........................................ 152
King, Hon. Angus S., Jr., letter................................ 155
Leadership Conference on Civil and Human Rights, The, statement. 157
Luttig, Hon. J. Michael, letter................................. 162
NAACP Legal Defense and Educational Fund, Inc. (LDF), letter.... 167
NARAL Pro-Choice America, statement............................. 170
National Council of Jewish Women (NCJW), statement.............. 174
National Education Association, letter.......................... 177
People For the American Way, statement.......................... 178
Project On Government Oversight (POGO), letter.................. 184
Supreme Court Integrity Project (SCIP), statement............... 204
Tribe, Laurence H., letter...................................... 206
Submitted by Senator Whitehouse:
5 U.S.C. Sec. 13104, excerpt.................................... 212
Mauskopf, Roslynn R., letter, April 29, 2022.................... 213
Mauskopf, Roslynn R., letter, March 23, 2023.................... 218
Mauskopf, Roslynn R., letter, April 18, 2023.................... 221
New York Times, The, article.................................... 222
Torrey, Ethan V., letter, July 12, 2021......................... 227
Whitehouse, Hon. Sheldon, letter, August 30, 2021............... 230
Whitehouse, Hon. Sheldon, letter, April 18, 2022................ 234
Whitehouse, Hon. Sheldon, letter, April 27, 2023................ 237
Whitehouse, Hon. Sheldon, and Graham, Hon. Lindsey O., letter... 242
Submitted by Senator Cruz:
U.S. Senators' letter to the U.S. Senate Committee on
Appropriations................................................ 244
Wall Street Journal, The, article............................... 249
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[all]