[Senate Hearing 118-42]
[From the U.S. Government Publishing Office]
S. Hrg. 118-42
ENSURING AN IMPARTIAL JUDICIARY:
SUPREME COURT ETHICS, RECUSAL,
AND TRANSPARENCY ACT OF 2023
=======================================================================
HEARING
before the
SUBCOMMITTEE ON FEDERAL COURTS, OVERSIGHT,
AGENCY ACTION, AND FEDERAL RIGHTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
JUNE 14, 2023
__________
Serial No. J-118-23
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
______
U.S. GOVERNMENT PUBLISHING OFFICE
52-711 WASHINGTON : 2024
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
Subcommittee on Federal Courts, Oversight, Agency Action, and Federal
Rights
SHELDON WHITEHOUSE, Rhode Island, Chair
DIANNE FEINSTEIN, California JOHN KENNEDY, Louisiana, Ranking
RICHARD BLUMENTHAL, Connecticut Member
MAZIE K. HIRONO, Hawaii CHARLES E. GRASSLEY, Iowa
CORY A. BOOKER, New Jersey MICHAEL S. LEE, Utah
ALEX PADILLA, California TED CRUZ, Texas
PETER WELCH, Vermont THOM TILLIS, North Carolina
JOSH HAWLEY, Missouri
Annie Owens, Democratic Chief Counsel
Nathan Williams, Republican Chief Counsel
C O N T E N T S
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JUNE 14, 2023, 2:02 P.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Whitehouse, Hon. Sheldon, a U.S. Senator from the State of Rhode
Island 1
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 3
WITNESSES
Witness List..................................................... 23
Mascott, Jennifer, assistant professor of law, and co-executive
director, The C. Boyden Gray Center for the Study of the
Administrative State, Antonin Scalia Law School, George Mason
University, Arlington, Virginia................................ 6
prepared statement........................................... 24
Sample, James J., professor of law, Maurice A. Deane School of
Law, Hofstra University, Hempstead, New York................... 8
prepared statement........................................... 29
Sherman, Donald K., executive vice president and chief counsel,
Citizens for Responsibility & Ethics in Washington, Washington,
DC............................................................. 4
prepared statement........................................... 47
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
Submitted by Chair Whitehouse:
Alliance for Justice, statement, June 14, 2023............... 60
Geyh, Charles G., testimony, June 14, 2023................... 65
Project On Government Oversight, statement, June 14, 2023.... 73
ENSURING AN IMPARTIAL JUDICIARY:
SUPREME COURT ETHICS, RECUSAL,
AND TRANSPARENCY ACT OF 2023
----------
WEDNESDAY, JUNE 14, 2023
United States Senate,
Subcommittee on Federal Courts, Oversight, Agency
Action, and Federal Rights,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice at 2:02 p.m., in
Room 226, Dirksen Senate Office Building, Hon. Sheldon
Whitehouse, Chair of the Subcommittee, presiding.
Present: Senators Whitehouse [presiding], Blumenthal,
Hirono, Padilla, and Welch.
Also present: Chair Durbin.
OPENING STATEMENT OF HON. SHELDON WHITEHOUSE,
A U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Chair Whitehouse. Good afternoon, everyone. There is a good
deal of complicated scheduling going on in the Senate, which is
particularly busy right now. So, we may or may not be joined by
Ranking Member Kennedy, as he has other obligations. But I've
been cleared by his team to proceed with the hearing. If he can
make it here, I'll give him the chance to make an opening
statement at a convenient juncture. But in the meantime, the
witnesses are ready, and I'm cleared to proceed, and so we will
go forward.
Two weeks ago, in a speech to the American Law Institute,
Chief Justice Roberts said he wanted to assure people he was
committed to making certain that the Supreme Court would adhere
to the highest standards of conduct. More important, the Chief
Justice acknowledged the Court has more to do, that Justices
are continuing to look at things they can do to give practical
effect to that ethics commitment, and that he's confident that
there are ways to do that, ways to do more.
The Chief Justice is right that there are plenty of ways
the Court could fix its ethics problems. Bogus personal
hospitality, obvious conflicts of interests, phony front-group
amici, these are all areas ripe for repair. As Chairman of this
Subcommittee, I've pointed out these problems and offered up
solutions more times than I can count. But still, we wait for
the Court to do something, anything, to show that it takes its
ethics seriously.
The American people are tired of waiting. A new poll
released the same day as the Chief Justice's remarks shows that
almost 60 percent of Americans disprove of the way--disapprove
of the way the Supreme Court is doing its job, and that
Americans are more likely to think that the Justices' honesty
and ethical standards were low or very low. For an institution
that depends on the public's faith to carry out its functions,
that is unsettling territory.
If the Supreme Court isn't going to do anything to restore
the public's trust, then it's up to us in Congress. Today,
we're going to talk about real solutions to real ethics
problems, the Supreme Court Ethics, Recusal, and Transparency
Act. This Committee has covered at past hearings how the bill
would address problems like Justice Thomas' failure to disclose
gifts and travel from a billionaire Republican donor. We've
also discussed how my bill would create a transparent process
for enforcing ethics rules at the Court.
Today's hearing will focus on how this bill would address
recusals and conflicts of interest. From the very first days of
this Republic, Congress has regulated judicial conflicts of
interest to help preserve the judiciary's integrity. Recusal
and conflicts laws on the books expressly apply to the Supreme
Court. It's time for Congress to step back in to fortify the
administration of these laws.
Case in point, for more than a year now, Justice Thomas has
refused to recuse from cases involving January 6 or the 2020
Election. In the first instance, Justice Thomas voted to stop
the January 6 Committee from getting access to White House
communications that may have included Justice Thomas' wife's
texts to the White House chief of staff about overturning the
2020 Election. The lawfulness of that failure to recuse depends
on a fact. What did Justice Thomas know about his wife's
insurrection activities, and when did he know it?
After more than a year, Justice Thomas has still never been
obliged to answer that question. We don't know the answer to
that essential fact. In no other court would such an essential
question of fact go unanswered.
Questions of recusal and conflict of interest are
intertwined.
So, we need to know more about front groups that helped
appoint Trump's Justices and then appear as litigants before
those same Justices. And recent reporting shows ties among
right wing operative Leonard Leo, billionaire mega-donor Harlan
Crow, and Justice Thomas--again often implicated in the filing
of amicus briefs without links disclosed. To these concerns and
others, the response of the Court has been secrecy and silence.
My bill would end the practice of Supreme Court Justices
judging their own conflicts of interest, require better
disclosure and transparency so the public knows when a Justice
has a connection to a party or amicus before the Court, and
require judges to explain their recusal decisions for everyone
to see. As we hear from today's witnesses about why these
reforms are needed, we should all keep in mind a maxim so old
that it is in Latin: nemo judex in sua causa, ``No one should
be a judge in their own case.''
With that, without Senator Kennedy here, I won't yield to
him for his opening remarks. But the Chairman of the Senate
Judiciary Committee, Senator Durbin, is here, and I would
invite him to make any opening remarks he should care to
deliver. Thank you for being here, Mr. Chairman.
OPENING STATEMENT OF HON. RICHARD J. DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Chair Durbin. Thanks to you as Chairman of the Court
Subcommittee, Senator Whitehouse, for holding this important
hearing today. I want to thank the witnesses for their
participation as well. This is the third hearing we've had this
year on the topic of judicial ethics. We're serious about
finding real solutions to the ethical shortcomings of the
Supreme Court.
It was February 2012, 2012, when I first sent a letter to
Chief Justice Roberts calling for the Court to step up and
adopt an enforceable code of ethical conduct. I've been pushing
for this reform for more than a decade. It is long overdue. We
need to restore public confidence and trust in our Supreme
Court. That cannot be done when they operate in the dark and in
secrecy.
Today's hearing will discuss recusal, transparency. We've
seen interesting movement on this issue in the Supreme Court
with at least one Justice, Justice Elena Kagan. She's now
providing public explanations for her recusal decision. She
gets it. She understands that when the American people
understand her thought process, it lends credibility to her
final result. And the same thing's true for the rest of the
Court.
The obvious question is, Will another Justice follow suit,
Justice Kagan? Will Chief Justice Roberts step in to ensure
other Justices do so for transparency's sake? I've said before,
and it bears repeating, the problem of ethics and disclosure in
the Supreme Court can be cured before the end of the day by one
person.
Chief Justice Roberts of the Roberts Court, as it will go
down in history, has the authority and the opportunity to step
in and get this done now rather than let this problem linger
and even get worse with the conduct of some of the Justices. He
can do it, and he should. This Committee will continue to
pursue this issue because it is critically important to our
responsibility under the Constitution when it comes to the
Supreme Court.
Now, a few weeks ago, Chief Justice Roberts gave a speech
where he said, and I quote, ``He's committed to making certain
that we as a court adhere to the highest standards of
conduct.'' I couldn't believe it. I thought he spoke up. Maybe
he's finally going to do something about this. Well, he should
do something, and he should do it now. Take the steps before
the Supreme Court takes its summer recess to carry out the
commitment he made in that speech.
Let's not have another summer of Justices jetting off for
luxury junkets under an inadequate set of ethics rules. I've
said it before. It's worth repeating. The highest court in the
land shouldn't have the lowest ethical standards. If the Court
won't act, Congress must. Thank you, Chairman.
Chair Whitehouse. Thank you very much, Chairman Durbin. I
will now introduce the witnesses and turn to them each after
the introductions for 5-minute opening statements. If your
written testimony is longer than that, it will be made a matter
of record. But I'd urge you to confine yourself to the 5-minute
time window so that we can proceed to the questioning part of
the hearing.
First, Donald Sherman is the senior vice president and
general counsel at Citizens for Responsibility & Ethics in
Washington. Mr. Sherman oversees CREW's legal efforts to
improve transparency and accountability within the Federal
Government, including through ethics reform. Mr. Sherman
previously served as counsel for the House Ethics Committee and
has held several roles in Congress and the executive branch,
including chief oversight counsel on the House Committee on
Oversight and Government Reform, senior counsel on the Senate
Homeland Security and Government Affairs Committee, and chief
of staff and senior counsel for oversight and investigations in
the Department of Housing and Urban Development's Office of
General Counsel.
Professor Jennifer Mascott is an assistant professor of law
at the Antonin Scalia Law School of George Mason University and
the co-director of the C. Boyden Gray Center for the Study of
the Administrative State. Professor Mascott writes and teaches
in the areas of constitutional law, administrative law, and the
separation of powers and Federal courts. Professor Mascott
previously served as an Associate Deputy Attorney General in
the U.S. Justice Department and as Deputy Assistant Attorney
General within the Department's Office of Legal Counsel during
the Trump administration. Professor Mascott also clerked for
Justice Clarence Thomas, and before that, then-Judge Brett
Kavanaugh.
Professor James Sample is a professor of law at the Maurice
A. Deane School of Law at Hofstra University. Professor Sample
is an expert on the law of judicial recusal, judicial
elections, and the intersection of campaign finance and
judicial ethics. He's the coauthor of a leading text on
judicial ethics and has written numerous articles on the
history of and issues related to judicial recusal. Professor
Sample previously served as an attorney in the Democracy
Program at the Brennan Center for Justice at New York
University School of Law. He also clerked for Judge Sidney
Thomas on the U.S. Court of Appeals for the Ninth Circuit. We
welcome all of you. Mr. Sherman, you may proceed.
STATEMENT OF DONALD K. SHERMAN, EXECUTIVE VICE PRESIDENT AND
CHIEF COUNSEL, CITIZENS FOR RESPONSIBILITY & ETHICS IN
WASHINGTON, WASHINGTON, DC
Mr. Sherman. Chairman Whitehouse, Ranking Member Kennedy,
and Members of the Subcommittee, thank you for the opportunity
to testify before you today about the Supreme Court Ethics,
Recusal, and Transparency Act and the urgent need for a clear,
transparent, and binding recusal regime for the Supreme Court.
I am here representing Citizens for Responsibility & Ethics in
Washington, a nonpartisan, nonprofit organization devoted to
ensuring the integrity of our government institutions.
Today, there is a crisis of confidence in our Federal
judiciary. This crisis is the result of a number of overlapping
failures, but chief among them is the judiciary's apparent
inability to abide by the rules of ethical conduct their high
office demands. As The Wall Street Journal reported in 2021,
over a 9-year period, more than 130 Federal judges presided
over 650 cases in which they had a material financial interest
in one of the parties.
More recently, the public has learned of unreported gifts
accepted by Justice Clarence Thomas from a billionaire
political benefactor and of a decades-long campaign by wealthy
activists to purchase unparalleled access to the Supreme Court.
Sadly, these scandals were entirely preventable. For decades,
liberal and conservative Justices alike have tested the limits
of this lax ethical regime, while activists and advocates,
regardless of ideology, have exploited every gap they can find.
Like many Americans, I have long regarded the Federal
judiciary with great reverence and even awe. I recall fondly
every fleeting interaction I have had with the High Court, from
attending my first oral argument to visiting chambers and
touring the highest court in the land. Even after years of
ethics problems facing the judiciary, many organizations,
including my own, were hesitant to sound the alarm because we
often litigate in the Federal courts.
That reluctance combined with the benign neglect of many in
Congress have also contributed to the current crisis.
Unfortunately, our collective reverence for the Court has
resulted in giving undue deference to the nine Justices for
their ethical compliance. The Wall Street Journal's reporting
and recent revelations of ethical issues impacting Justices
across the ideological spectrum have made the case for reform
undeniable.
The SCERT Act takes a number of actions to respond to this
crisis, each of which will promote the independence of and
rebuild public confidence in the judiciary. In particular, the
SCERT Act would reshape the Supreme Court's recusal regime in a
constitutionally appropriate manner, adding transparency and
accountability to an opaque and broken system.
The SCERT Act's enhanced recusal provisions would create a
more robust process for identifying and deciding recusals to
ensure the Justices' independence in their work on behalf of
the public. After all, they are Government employees. This is
my third time testifying before Congress about judicial ethics.
And I want to proactively address some of the questions that I
have heard before and expect to hear today.
First, the need for ethics reform at the Supreme Court is
not a partisan issue. I've been an ethics lawyer for more than
a decade. But you don't need to be an expert to appreciate
what's wrong with judges ruling on cases where they have
conflicts of interest or with making their own recusal
decisions.
Second, I have also been Black in America my entire life. I
am absolutely certain that Justice Thomas has faced racism in
his. I am also absolutely certain that bolstering ethics rules
that will apply to every Justice, regardless of ideology, is
not racist. The idea that these necessary reforms are political
or retaliatory is equally absurd. While we cannot dismiss
Justice Thomas' egregious ethical problems, it is also true
that former Justices Ginsburg, Breyer, and others have heard
cases where they likely should have recused.
Even more troubling, every single one of the current
Justices has rebuffed basic oversight and reform, arguing that
we should just trust them to make their own recusal decisions
despite years of scandal at the Court. So, while it is
regrettable that some politicians have directed incendiary
rhetoric at Justices they oppose, one cannot acknowledge the
ethical blunders by both liberal and conservative Justices in
recent years and credibly defend this untenable status quo.
In closing, despite having the power of judicial review and
enjoying life tenure, Federal judges have substantially fewer
ethical checks than their counterparts in the legislative and
executive branches. And the highest court in the land has the
lowest standards regarding conflicts and recusals. It is now
abundantly clear that the Justices cannot or will not
effectively regulate themselves.
Your favorite liberal icon and your favorite conservative
hero on the Court need binding ethics rules that include a
transparent and independent recusal process. The SCERT Act does
just that. Thank you for the opportunity to testify on this
important topic. I look forward to your questions.
[The prepared statement of Mr. Sherman appears as a
submission for the record.]
Chair Whitehouse. Thank you very much, Mr. Sherman. We now
turn to Professor Mascott.
STATEMENT OF JENNIFER MASCOTT, ASSISTANT PROFESSOR OF LAW, AND
CO-EXECUTIVE DIRECTOR, THE C. BOYDEN GRAY CENTER FOR THE STUDY
OF THE ADMINISTRATIVE STATE, ANTONIN SCALIA LAW SCHOOL, GEORGE
MASON UNIVERSITY, ARLINGTON, VIRGINIA
Professor Mascott. Chairman Whitehouse, Ranking Member
Kennedy, Members of the Subcommittee, thank you for having me
here to testify today. I'm Jennifer Mascott, a professor at
Scalia Law School. But I'm testifying in my individual academic
capacity, and so my views obviously don't reflect the views of
my academic institution.
I was last here before this Committee about 12 months ago,
right after the--or right--yes, right after the leak of the
Dobbs opinion and when we were at that point going to discuss
Chairman Whitehouse's legislation. But the discussion took a
little different turn. And sadly, personally, since that time,
my husband unexpectedly fell ill of pancreatic cancer and
passed away just a few weeks ago in February. So, I'm glad
today to have the opportunity to be back before you----
Chair Whitehouse. We welcome you back.
Professor Mascott [continuing]. After that circumstance.
Thank you. So, today I've been asked to talk a little bit about
any separation of powers questions that might arise in looking
at regulation of procedure with the Supreme Court. Congress
obviously has a very important constitutional role to play
related to the Federal judiciary.
Congress is responsible, obviously, for establishing
inferior Federal tribunals, and since the Judiciary Act of
1789, has taken significant action to regulate and address the
procedure and subject matter jurisdiction of Federal courts,
including the Supreme Court. But Congress' power in this area
with the Federal judiciary is pegged to its authority to
establish inferior tribunals and also its necessary and proper
power to enact laws to carry into execution the vesting of
Federal judicial power in the Supreme Court and other Federal
tribunals.
And so, it's not an unbounded authority, necessarily, to
regulate all actions of various judges and Justices. And since
1789, this body has had a practice of leaving the courts with
significant discretion in regulating procedure and also
administration of their own affairs.
Two additional principles in the constitutional structure
that I think are relevant to the discussion today include the
concept of the Supreme Court sitting over inferior tribunals,
the concept of a hierarchical system within Article III, and
then also the more constrained role of the judiciary to resolve
discrete cases and controversies in contrast to this body and
the executive which are elected by the American people. And so,
I think those principles come up and touch on several aspects
of the draft legislation.
First, the legislation has some provisions in it providing
for notice and comment procedures when the Supreme Court looks
at its own procedural mechanisms and recusal rules and ethical
codes. And so, in contrast to this body and the executive
branch where the public, through the electoral process and
commenting, has a much more direct role in procedures, the
Supreme Court and the Federal judiciary, by the terms of the
Constitution and the constitutional structure, were set aside
to be impartial, as the title of this hearing reflects, and
judges given tenure protection and salary protection so that
they would not be too swayed by the public. And so, I think
it's important to think through whether there is tension
between having the public comment on ethical codes of the
Supreme Court, which we want to stand apart from political
considerations and mores.
In addition, the aspects of the draft bill enable
individual members of the public, even apparently in cases,
situations where they don't necessarily have a case before the
Supreme Court, to raise individual ethics complaints and try to
initiate investigation into various aspects of judicial or
Supreme Court affairs or recusal decisions that also may create
tension with the notion of an impartial judiciary that's set
aside from the political process.
And then, finally, aspects of the bill that give lower
court judges a role in overseeing or approving of various
Justices' decisions, whether to recuse or how to handle their
role in a particular case, also may set in tension with the
constitutional structure. As a policy matter, too, I think it's
good to think about whether it makes sense at this point to
significantly increase regulation of the judiciary, which by
many metrics I would argue is actually working quite well.
President Biden, at the start of his administration,
established a commission to review and look at the Supreme
Court, and in courts in general, and its structure and how it's
operating. And that commission did not coalesce around a single
significant change that needs to be made. Close to 40 percent--
more than 35 percent of decisions or judgments each year over
the past 10 years issued by the Supreme Court are unanimous.
And Congress has many tools at its disposal to regulate
practice of courts through subject matter, jurisdiction, and
other procedures that have a much more long-standing historical
providence than some of the disclosure and recusal provisions
in this particular bill. Thank you. I look forward to
discussing this further and answering questions.
[The prepared statement of Professor Mascott appears as a
submission for the record.]
Chair Whitehouse. I think you just set the Subcommittee
record for the most amount of testimony in 5 minutes.
[Laughter.]
Chair Whitehouse. Well done and congratulations. Professor
Sample?
STATEMENT OF JAMES J. SAMPLE, PROFESSOR OF LAW, MAURICE A.
DEANE SCHOOL OF LAW, HOFSTRA UNIVERSITY, HEMPSTEAD, NEW YORK
Professor Sample. Chairman Whitehouse, Ranking Member
Kennedy, and Members of the Subcommittee, thank you for
inviting me to testify today. In our polarized political era,
the tendency is to see nearly every issue through a partisan
lens. Viewing robust judicial ethics rules as partisan,
however, is reductive at best and corrosive at worst. The acute
problems we face are not limited to jurists of any particular
ideological stripe.
As my written submission notes on the Supreme Court,
legitimate concerns can and have been raised as to jurists
across the ideological spectrum. As Erwin Chemerinsky
powerfully wrote in The New York Times just 2 days ago,
``Liberals and conservatives should want a Supreme Court that
is above reproach.'' Yes, there is variance in the severity and
regularity of the problems surrounding individual judges and
Justices. But fundamentally, and with extraordinarily rare
exception, the problem is not the people.
Though iconic figures, Supreme Court Justices are human
beings. They make mistakes. The problem, with only rare
exception, is not the people, but the system. So, what is the
central flaw?
Well, Section 455(a) of Chapter 28 of the United States
Code states that ``any Justice or judge of the United States
shall disqualify himself or herself in any proceeding in which
the judge's impartiality''--and now we get to the key phrase--
``might reasonably be questioned.'' The standard is, by its
terms, objective.
Indeed, if anything, it layers an excess of caution on top
of the objectivity by emphasizing that disqualification is
required whenever the judge's impartiality might reasonably be
questioned. Yet that objective standard is combined with a
nettlesome tension, even a contradiction. It is applied
entirely subjectively by the judge or Justice in his or her own
case. It should come as no surprise that the results of such a
system are inconsistent. In analogous circumstances, some
Justices recuse while others do not.
Section 5 of the proposed legislation would require jurists
presented with a recusal motion to either recuse or have the
question referred to an impartial panel of randomly selected
judges. In the case of the Supreme Court, the panel consists of
the other Justices of the Supreme Court. The proposed
legislation before you is not top-down congressional control of
granular details in a coequal branch.
On the contrary, Section 2 of the legislation merely
requires the Supreme Court to issue a code of conduct for
itself within 180 days. And doing so would merely level up the
Supreme Court so as to bring the highest court in the land more
in line with the stronger standards applicable in all lower
courts. Chairman Durbin's opening statement made this point
more eloquently and certainly more powerfully than I ever
could.
Similarly, Section 3 of the legislation mandates that
Justices disclose the same information concerning gifts,
income, and reimbursement as required of Members of Congress
and members of the executive branch. The current system,
particularly because of the lack of enforcement in the Supreme
Court, means that egregious failures to comply with existing
Federal law recur and recur without meaningful consequence.
Consider as a rhetorical question whether it makes any
sense to require less of the branch where impartiality is the
touchstone than we require of the two constituent branches. I
applaud the legislation before the Committee and the sustained
efforts to bring us to this day. The Supreme Court Ethics,
Recusal, and Transparency Act would protect litigants, promote
public confidence in the judiciary, and do so without
jeopardizing the Court's decisional core independence. The
legislation is necessary, measured, and constitutional. Thank
you.
[The prepared statement of Professor Sample appears as a
submission for the record.]
Chair Whitehouse. Thank you very much, Professor. For the
benefit of my colleagues, the order that I have is Whitehouse,
Durbin, Blumenthal, Hirono, Welch. And without objection, I
would like to add to the testimony a statement for the record
prepared by Professor Charles G. Geyh of the Indiana University
Maurer School of Law, and a statement of the Project on
Government Oversight.
[The information appears as submissions for the record.]
Chair Whitehouse. Professor Sample, let me turn to you.
Federal law currently contains a Provision 28, United States
Code, Section 455, that governs when judges should recuse
themselves from a case in which there is a conflict of
interest. Can you explain generally what that law requires?
Professor Sample. Yes, Mr. Chairman. Section 455 is the
language that I quoted a moment ago that says that ``a judge
shall recuse''--and it uses the language ``shall,'' which is
mandatory language, in contrast to some of the remarks that we
have--that the Committee has received from the Chief Justice
and others that make the standard sound as though it is merely
aspirational and subject to voluntary compliance. It says,
``whenever the judge or Justice's impartiality might reasonably
be questioned, the judge is required to recuse him or
herself.''
The practice in many lower courts and in many State courts
is to have those decisions reviewed. But at the Federal Court
of Appeals level, there isn't a procedure to do that. And at
the Supreme Court level, there is absolutely no procedure to do
that. And what happens is that we have unreviewable decisions
by the individuals who are acting as the judge in, in essence,
as you put it in your opening statement, their own case.
Chair Whitehouse. That law applies to Supreme Court
Justices?
Professor Sample. Yes, it does.
Chair Whitehouse. And obviously, Congress passed that law.
Professor Sample. Correct.
Chair Whitehouse. Has the Supreme Court ever ruled that
this law, or any other recusal law, or, for that matter, the
Ethics in Government Act, was unconstitutional or that it can't
apply to the Justices?
Professor Sample. No, the Supreme Court has never ruled in
that manner.
Chair Whitehouse. Indeed, have Justices not complied with
it?
Professor Sample. Most of the time, they have complied with
it.
Chair Whitehouse. Without objection?
Professor Sample. Without objection.
Chair Whitehouse. Let me turn to Mr. Sherman with an
example. This relates to disclosure and when conflicts of
interest should be presented to the parties and the public so
that an informed recusal conversation can transpire.
In 2020, the right wing flagship political organization of
the Koch brothers, Americans for Prosperity, spent at least a
million dollars on what it called a full-scale campaign to
confirm Judge Amy Coney Barrett, including hundreds of
thousands of phone calls and emails, ads, op-eds, and a website
called uniteforbarrett.com.
Americans for Prosperity had run similar campaigns,
spending millions for all the Trump Justices. At the same time,
there was a case pending before the Supreme Court that was
brought by the virtual alter ego of Americans for Prosperity.
This organization was called Americans for Prosperity
Foundation.
For those of you who are not familiar with the state-of-
the-art in dark money political influence tactics in America,
the latest and greatest is to set up a 501(c)(3) and a
501(c)(4) that are effective twins that have the same donors,
the same staff, the same address. They're indistinguishable.
And this is the relationship between Americans for Prosperity
and Americans for Prosperity Foundation. They share officers,
directors, an address, and virtually, certainly donors.
Although, because of dark money protections, they don't
disclose. What sort of disclosures should have been made to the
parties in the Americans for Prosperity Foundation case about
that relationship in order for people to make a determination
as to whether there was a conflict of interest in one corporate
entity appearing before the Court of a twinned corporate entity
that had spent millions of dollars to get those Justices onto
the Court who were hearing the case?
Mr. Sherman. Under existing law?
Chair Whitehouse. In terms of what the proper course of
justice would suggest. Let's put it that way.
Mr. Sherman. Certainly. I think, given the scenario that
you described, it certainly--it raises concerns about the
opacity of the arrangement and whether this organization is
using its funds to influence the Justice. And disclosure would
be advisable, but obviously isn't required under existing law,
but would be under the SCERT Act.
Chair Whitehouse. Yes. Here's another one. An amicus showed
up under the fictitious name, the Honest Elections Project.
That fictitious name organization bears a relationship of
virtual corporate identity to the Judicial Crisis Network,
which, like Americans for Prosperity, spent millions of dollars
in dark money to push for the confirmations of the Trump
nominees.
And they're coordinated by an individual named Leonard Leo,
who has been deeply involved in the selection of at least four
of the Supreme Court Justices. There was no disclosure made of
any of those relationships in the Honest Elections Project
amicus brief. Why is that wrong?
Mr. Sherman. Again, I think the public is certainly
entitled to information about who is mounting privately funded
campaigns to influence both who sits on the Court and then what
decisions they make when they're on it. But under existing law,
they're not required to do so. But certainly, under the SCERT
Act, there would be more disclosure required of amici.
Chair Whitehouse. Chairman Durbin.
Chair Durbin. Thanks, Senator. Mr. Sherman, when I heard
them describe your background, it involves some work on Capitol
Hill, did it not, with the House Ethics Committee?
Mr. Sherman. Correct.
Chair Durbin. So, let me give you a hypothetical and see if
you can help me get to a conclusion. Let's assume that, like
the Supreme Court Justices, our congressional recess starts
somewhere in August.
And a really good friend of mine of many years decides that
he wants to pay for my wife and myself to first fly on his
charter plane to a distant destination and then spend a week or
two on a very palatial yacht of his, and then he'll return me
home after I've had my vacation. What kind of responsibility do
I have as a Member of Congress to disclose any of that?
Mr. Sherman. Well, I think the first requirement you would
have is to call the Committee to seek approval to accept the
travel in the first place. But then you would have to disclose
the travel itself, if you were approved, the travel itself, the
amount of the travel, and the source, and who funded aspects of
the travel.
Chair Durbin. When you say disclosed, do you mean publicly
disclosed?
Mr. Sherman. Correct.
Chair Durbin. So, let me ask you if you know what rule
would apply to a district court judge, a Federal court judge
who had the same opportunity?
Mr. Sherman. In the Federal courts, my understanding is
that there is less disclosure requirement with respect to
privately funded travel. And at the Supreme Court, one, the
personal hospitality exception would cover a lot of this,
depending on the nature of the friendship, and it wouldn't have
to be disclosed at all.
Chair Durbin. So, there'd be no disclosure in the district
court level or the circuit court judges?
Mr. Sherman. I believe there would be at that level.
Chair Durbin. There would be disclosure?
Mr. Sherman. Yes.
Chair Durbin. And they have a code of ethics as well?
Mr. Sherman. Yes. They have a pretty lengthy binding code
of ethics. The Supreme Court does not, though they say that
they sometimes reference the former.
Chair Durbin. So, Justice Thomas, when he did not disclose
at the Supreme Court level, was he in violation of any law that
you think applies?
Mr. Sherman. Yes. So, with respect to Justice Thomas, while
personal hospitality need not be disclosed, there is a
requirement, if you're staying in somebody's home, for example,
you share a meal in their home. But the payment of his actual
travel to the location on the private jet, his travel on the
boats, especially because that travel, as we understand it, was
funded by a private company and not actually the hospitality of
Mr. Crow, needed to be disclosed and was a violation of Federal
law.
Chair Durbin. Professor Sample, I'm trying to wrestle with
the argument we hear from the other side, that this separation
of powers gives Congress little or no authority over this Court
created by the Constitution as opposed to the inferior courts.
And yet when you made reference to 28 U.S.C. 455, this was one
of the Federal statutes enacted by Congress to apply to the
Supreme Court, which apparently the Court at least nominally
follows. Is that correct?
Professor Sample. Correct.
Chair Durbin. Can you rationalize that thinking that
Congress has no authority over the Court, and yet the Court
follows what Congress says it should?
Professor Sample. I think, Senator, it's clear that
Congress does have authority to regulate the Supreme Court.
Indeed, separation of powers doesn't mean that one branch of
government is entirely independent of the others. Congress
regulates many aspects of the Supreme Court, including the size
of the Court, the salary of the Justices, its budget, the
quorum requirements.
As far back as the Judiciary Act of 1789, Congress has been
in the business of making manifest the Article III promise that
there will be a Supreme Court. But without Article I
legislation that this Congress can pass, that Article III
promise would be a parchment promise at best.
Chair Durbin. I'm sure I'm not saying this as they would,
but those on the other side argue that Congress has authority
when it comes to those elements you've just mentioned, but
doesn't have the authority to impact the decision-making of the
Court. They draw that line. Do you recognize that same
distinction?
Professor Sample. I think at the prior hearing, Professor
Amanda Frost did a nice job, in my view, and her written
testimony does a nice job laying out that the key core of the
judicial process is the power to decide cases and
controversies.
And so, a decision that intrudes on the core decisional
independence in the case of Smith v. Jones, if Congress were to
say that Smith has to win and Jones has to lose, that's a real
problem. That's an intrusion into the core of the judicial
power. The legislation that you and your colleagues have
proposed does not intrude into that core decisional
independence in any way.
Chair Durbin. Thank you. Senator Hirono.
Senator Hirono. What would we do without our staff to tell
us what's what? Well, welcome, everybody. I think this is a
very important issue because when we talk about the need for
the public to hold the court, especially the Supreme Court, in
high regard, you know, in spite of the fact that there's very
little we can do if the Supreme Court is doing things that we
don't agree with. But why, you know, I'm just curious,
especially maybe for Professor Sample, why is it important that
the public hold the Supreme Court in high regard?
Professor Sample. It's a very good question, Senator. And I
think that the answer is that democracy is fragile. It depends
on faith, trust, and goodwill, and it depends on confidence.
You know, famously, the Court lacks the power of the purse, and
it lacks the power of the sword. It depends on people believing
in its legitimacy for its rulings to be respected and followed
in a manner that is consistent with civilized society.
Senator Hirono. Would you agree, Mr. Sherman?
Mr. Sherman. I would. I would also say that the courts
exist so that there is a neutral arbiter to resolve disputes
between individuals and institutions. And if people don't have
faith that the courts are a neutral arbiter, then they won't
avail themselves of the courts, which is also a problem for
democracy.
Senator Hirono. I think availing themselves of the courts
if they do not have confidence in the objectivity and fairness
of the courts, I think that is a real concern. Now, I think we
made it play that the Congress does have the power and the
authority to shape the size, determine the size of the Supreme
Court. It holds the power of the purse over the Supreme Court.
It can require Justices to ride circuit, for example. So, I
would like to ask all three of you, does Congress have the
power to enact the SCERT Act? Mr. Sherman?
Mr. Sherman. Yes.
Senator Hirono. Professor--sorry, Mascott, do we have the
power to enact the SCERT Act?
Professor Mascott. Well, without getting into all of the
details of the Act, I think the questions that I raised in my
earlier statement about the particular bill here are where or
who is involved in enforcing some of the rules and requirements
that are put into place. So, for example, putting lower court
judges----
Senator Hirono. Excuse me. We do have the power. There may
be some concerns about how things will be implemented or how,
you know, those kinds of concerns, but my question is simple.
Do we have the power to enact the SCERT Act? I would say
probably yes. Professor Sample?
Professor Sample. Yes.
Senator Hirono. Okay. One of the things that you testified
to, Mr. Sherman, really caught my attention when you referred
to The Wall Street Journal's 2021 Report, wherein 130 Federal
judges presided over more than 650 cases in which they had a
material financial interest. I'd like to know how did this come
to light that this kind of conflict existed in these instances?
Mr. Sherman. Well, as I understand it, The Wall Street
Journal spent a lot of time mining through an archaic system of
financial disclosures and identifying specific holdings that
judges had and the cases that were involved. In many cases the
judges claimed that they didn't know. This was one of the
reasons why Congress last year passed legislation to update and
automate that process.
Senator Hirono. So, are you saying that not having read
that article, that out of these instances, that there was not a
lot of recusal from these judges as they made decisions
regarding these cases in which they had a conflict?
Mr. Sherman. Correct.
Senator Hirono. So, Professor Sample, do you think that the
SCERT Act will remedy this kind of circumstance where the
judges are not paying enough attention to where they have
financial conflicts, which is probably the simplest conflict to
ascertain and thereby leading to their recusal?
Professor Sample. I think that the SCERT Act will do a
large part of the work to at least mitigate that problem. We
may still have remnants of the problem, but the SCERT Act would
do yeoman's work to prevent that kind of a scenario, requiring
judges to recuse themselves or, if they decline to do so, to
have those decisions reviewed by their peers.
The Wall Street Journal did a tremendous job in reporting
that piece and I think it shows one of the fundamental flaws,
which is that we are combining a system in which the judges are
already going to be the judges in their own case. And that is
only really a case if they've done the legwork in advance to
determine via fact finding that there might actually be a
direct pecuniary interest on their part. And that's a real
problem.
Senator Hirono. Mr. Chairman, if I may. I think the
pecuniary interest is really the most objective way that you
can define a conflict. But I would say there are also
relational conflicts, and so there may not be a pecuniary
interest. But if you're married to somebody who's taking a
position that is being challenged in court, that is a
relational conflict.
And I just want to mention I am very familiar with a case
that involved the State of Hawaii. And a major Act that was
being challenged, it was called the Land Reform Act. It went
all the way, 10 years, all the way to the U.S. Supreme Court.
And Justice Marshall recused himself because he was married to
a person who was born in Hawaii. That is a relational perceived
conflict. Thank you, Mr. Chairman.
Chair Durbin. Senator Blumenthal.
Senator Blumenthal. Thank you, Mr. Chairman. You know,
whenever these issues of ethics are discussed, I can't help but
thinking back to my days as a law clerk for Justice Harry
Blackmun who refused to have dinner with people who might
conceivably at some point in the future have a case before the
Supreme Court. Even if he was going to pay for dinner, he
refused to sit down with someone privately who might have a
case before the Supreme Court.
And we made fun of him a little bit, I have to admit, as
law clerks do behind the back sometimes of their Justices. But
even if he were somewhat more lax, I think the standards
overall have been reduced for the conduct of Supreme Court
Justices. At the time, Justice Douglas was regarded as an
outlier because he wrote books. He wrote books. Supreme Court
Justices don't write books. Of course, every Supreme Court
Justice now writes books.
So, I think that we're dealing here with a cultural change
that has really contributed to diminishing respect for the
Supreme Court. And, you know, to answer a little bit more, the
question that Chairman Durbin asked of Mr. Sample--Professor
Sample, you know, the Supreme Court has a mystique. You may
regard it as a mystique, not justified, in fact. But it is a
credibility, a trust, confidence that is so necessary for a
Court composed of nine people, unelected, presiding for life,
and able to strike down the will of a democratically elected
Congress.
It's extraordinary in a democracy. And so, I am really just
baffled by Chief Justice Roberts because he should know better.
And this controversy could be diffused if he were willing to
lead. And obviously, we've asked him to lead again and again
and again. But the failure to take the reins here, which could
easily supplant these kinds of measures if he were to
voluntarily impose some code of ethics and there would be
enforcement questions, but at least there would be a code of
ethics and the Judicial Conference or someone could enforce it.
You know, I don't want to be unfair to any particular
Justice because I recognize that these questions can be asked
of any or all of them. But thinking to Justice Thomas'
presiding over questions relating to January 6th in light of
his spouse's text messages to then-White House Counsel--White
House Chief of Staff Mark Meadows regarding theories of fraud
in the 2020 election and strategies to overturn the election.
And his insistence on refusing to recuse himself on matters
related to January 6th seems to me to flout Section 455
statutory requirements.
That's a statute that exists. No one should be above the
law. We all agree. So, I think that's a reason for the
diminishing public confidence in our Supreme Court at this
historic time and a historic low. And I have just about,
unfortunately, just about exhausted my time.
But let me ask you, Ms. Mascott, without asking you to
comment on Justice Thomas, isn't there some way for this body,
in the absence of leadership from the Supreme Court itself, to
insist that some standards be imposed? I understand fully your
argument about separation of powers, but where no decisional
outcome, where no substantive issue is determined, isn't there
a way for us to act?
Professor Mascott. Well, I mean, certainly, I think through
this hearing and through the policies that have been put in
place regulating the lower courts, this body has made clear
standards that it thinks should apply to recusal.
And it sounds as though, I think, from the Chief's
statement that he provided prior to the last hearing, that the
Supreme Court Justices are aware of concerns and are going to
continue to be careful, as they have been, in trying to police
and make their own, you know, decisions and be faithful to make
sure they're recusing in cases where they have involvement. I
mean, another very real procedure that we haven't discussed a
lot today, but I think has appropriate constraints and
obviously political costs for this body, which is why it's not
more used but, I mean, the Constitution, of course, does have
for wrongdoing an investigation, always has the impeachment
authority.
And so, I guess some of the concerns I think coming into
play here are when this body decides to not use that more
serious structure. Whether there are concerns in a body of nine
decisionmakers, as you all say, with too readily insisting that
one of those decisionmakers recuse and not participate in
exercising the judicial power, when we don't have evidence of
wrongdoing and we don't have reason to believe that the process
is actually not working.
Senator Blumenthal. My time is expired. Maybe we'll have a
second round.
Chair Whitehouse. Senator Padilla has arrived. And by
vaunted Senate principles of seniority, he is next, followed by
Senator Welch.
Senator Padilla. Thank you, Mr. Chair. As has been
discussed at this hearing--and I apologize for arriving late,
you know how it is, multiple votes and multiple committees--
it's clear that the current law governing recusal gives judges
and Justices a lot of discretion when making recusal decisions.
And there have been numerous instances of judges abusing
this discretion from district court and circuit court judges
failing to recuse themselves from cases in which they have a
financial interest, to Justice Thomas failing to recuse himself
from cases concerning January 6th despite his wife's documented
engagement with the organizers of the insurrection.
So, the legislation we're discussing today would begin to
fill those gaps by laying out specific instances in which a
judge or Justice must recuse themselves, including instances
where a party has given a gift or made a financial contribution
to a campaign supporting a Justice's confirmation. Mr. Sherman,
I'll ask you, why are these specific recusal provisions
necessary, and are there any other specific provisions that
Congress should consider?
Mr. Sherman. Well, I think they're necessary because as the
last several years have demonstrated, you know, again,
activists and advocates who want to influence the Court will
exploit every loophole possible, which is quite easy when there
is no binding code of conduct for the Supreme Court to abide
by.
I think the SCERT Act would address a lot of these concerns
by not only providing transparency, additional transparency,
with respect to the Justices' financial entanglements and
creating a duty to know across the Federal judiciary, but it
would also provide transparency with respect to amici who are
seeking to influence the Court, and then ultimately, as you
said, provide an independent and transparent process to
adjudicate recusals, which I think is where the public has
really grown frustrated and quite concerned about Justices and
judges ruling on cases in which they have a financial interest
or conflict of--or other conflict of interest.
Senator Padilla. Thank you. And there's certainly skeptics
out there who have expressed concern at the more stringent
judicial recusal requirements that we seek to put in place,
along with public explanations for recusal decisions, would
actually invite gamesmanship at the Supreme Court because
there's only nine Justices.
Again, the legislation we're talking about would reduce, I
believe, would reduce opportunities for such gamesmanship by
providing clear cut guidelines for when a conflict of interest
requires recusal, taking the guesswork out of the process. Now,
Federal judges want to hold themselves to a high ethical
standard. They claim that they hold themselves to a high
ethical standard.
Our legislation would make it easier for them to do that
and for the public to see that. Question for Professor Sample,
can you explain how clear guidelines for when recusal is called
for would lead to greater consistency and transparency in
recusal decisions?
Professor Sample. Yes, Senator. I think most prominently,
eliminating the judge as judge in his or her own case is an
important preliminary step. And at the Supreme Court level,
while, yes, in theory there is a gamesmanship concern, I think
it's worth noting that the Justices regularly decide cases on
issues of major national import all the time, and they often
disagree vehemently and still maintain a good working
relationship.
So, I don't think that the individual Justices out there
would be looking to game the system by recusing their fellow
Justices or voting, unless those recusals were truly warranted.
And I think if they are truly warranted, then the entire Nation
is served by those recusals. We've had situations, I mean, we
went over a year with only eight Justices on the Bench because
Congress refused to give Merrick Garland a hearing. The Court
managed to function with only eight Justices for more than a
year. I think they can manage to function with only eight
Justices in one particular case.
Senator Padilla. Excellent point. And I'm glad that in the
reporting from this hearing, it will be--that quote will be
attributed to you and not a Member of the Committee. Thank you
very much. Thank you, Mr. Chair.
Chair Whitehouse. The patient Senator Welch.
Senator Welch. Thank you very much. In response to a
question I think Senator Durbin asked, Professor Mascott, you
use the term impeachment? Are you serious? What are you talking
about? We should be impeaching judges? What did you mean by
that?
Professor Mascott. Oh, no. What I was saying is that the
Constitution, like it does in many instances, has very
challenging, finely grained procedures----
Senator Welch. No, I understand that, but we're talking
about a very concrete situation about a failure to report--the
reports of a Justice having been the beneficiary of very
expensive travel arrangements. So, I just don't know where that
word came from and what you're suggesting.
Professor Mascott. Well, I guess what I'm suggesting is
that there were questions being raised about congressional
regulation and investigation of alleged wrongdoing or concerns.
And so, what I was saying, which I would say if we were talking
about executive branch----
Senator Welch. All right. I'm going to, because we don't
have that much time. But here's what it sounds like you're
saying to me. We don't have the power legislatively to require
ethical disclosure, but we do have the power to impeach. Isn't
that a little overkill?
Professor Mascott. Specifically, what I said in my opening
statement is that the particular aspects of the bill that I
think create the most constitutional tension are the ones that
allow members of the public and members of lower courts----
Senator Welch. Okay. All right.
Professor Mascott [continuing]. To adjudicate decisions by
Supreme Court Justices.
Senator Welch. You're talking constitutional intention, how
about public credibility? I'm of the view that constitutional
protections are one thing, norms are another. And if there's
not credibility among the public for the institutions that are
here to serve it, Congress, Supreme Court, the Presidency, then
things fall apart.
Professor Mascott. I share with you concerns about, and I
think across the board, Federal institutions are----
Senator Welch. So, are you saying----
Professor Mascott [continuing]. Struggling with
credibility. And unfortunately, I think Congress' approval
rating is lower----
Senator Welch [continuing]. Do you think that the nine----
Professor Mascott. I'm sorry?
Senator Welch. Do you think that the nine people who occupy
the highest judicial positions in the country can maintain
credibility with the people they serve? And by the way, they're
public servants, too. They're not above the service
requirement. Do you think they can maintain credibility with
the public, or even deserve to, if they won't disclose when
they are the beneficiary of extraordinarily generous and
completely out-of-reach vacations that only they can get by
virtue of the position they hold?
Professor Mascott. I mean, in contrast to a lot of my, you
know----
Senator Welch. That's it.
Professor Mascott [continuing]. Colleagues, academic and
otherwise, I actually think all nine Justices admirably are
trying to apply the rule of law in every case according to the
constitutional theory----
Senator Welch. In one case, they didn't do it, if these
press reports are to be believed, and no one's challenged them.
Professor Mascott. Well no, I don't--no one has made an
accusation, actually. I don't think that the disclosure
requirements or anything about them has been related to any
decision in a case. So, I think that's another point of
connection that should be highlighted.
Senator Welch. So, if you've got an--if you've got, you
know, thousands of dollars in vacation benefits, but you
weren't pending before the Court, you don't think that's going
to raise public questions?
Professor Mascott. There was no--there was no--well----
Senator Welch. All right. I think I see where you're coming
from. I guess I'll respectfully disagree. I am extremely
worried about what's happening on the Supreme Court and what's
happening with the failure of the Chief Justice to do what
would relieve us of this public spectacle. I'm worried because
the Supreme Court has to be a credible institution in our
democracy. And I'm worried about how that's eroded with the
unwillingness of that Court to subject itself to the same
ethical requirements that 850 other Federal judges adhere to.
I'm worried about what has happened with the credibility of
the Court because of the spectacle of Supreme Court hearings
here and the unwillingness at one point of allowing a duly
elected President from having his nominee considered. And on
this question of separation of powers, I'm worried about
judicial abuse of legislative power by refusing to uphold a
bipartisan campaign finance law sponsored by John McCain, among
others, Russ Feingold, that was intended to restore credibility
to the election process. Those are my concerns.
Congress has a role to play. The Court has a role to play
with its ethics, and the Court has a role to play with
respecting the right of the majority to legislate decisions on
behalf of the public interest. I yield back.
Chair Whitehouse. Thank you. I'm going to ask an extra
question of Professor Sample and an extra question of Professor
Sherman. With respect to Professor Sample, the new Statement on
Ethics, Principles, and Practices that the Justices put forward
posits a duty to sit. Explain to me why it is preferable to
have a conflicted Justice sit on a case than to have the
conflicted Justice recused?
Professor Sample. Senator, I think the Statement on the
duty to sit is respectfully overstated, which is to say that we
have lots of empirical evidence, and we were referencing some
of that empirical evidence earlier. A recent Bloomberg study
indicated that Justices recused from approximately 3 percent of
the cases. So, the duty to sit is not trumping basic recusal
requirements in those cases.
We've explored the fact that we went more than a year with
only eight Justices on the Court, and the very same individuals
who are now championing this extraordinarily robust version of
the duty to sit didn't seem to have a problem with the Court
sitting with only eight Justices. I do not think that the duty
to sit argument holds water when measured against the
importance and the fundamental due process interest in an
impartial judiciary.
Chair Whitehouse. And Mr. Sherman, let me offer you another
hypothetical that appears to be actually the fact right now. We
have a Justice on the Supreme Court who has written a book from
which that Justice receives royalties that go directly to the
benefit of that Justice. A firm is helping that Justice sell
that book as agent and PR operation. It appears to be the only
book that that firm supports in that way.
And that firm, CRC Advisors, is run by the same Leonard Leo
who was responsible for orchestrating so-called Federalist
Society lists, which the Federalist Society has disavowed, for
running the ad campaigns behind the confirmations of the three
Trump appointees and whose network of front groups persistently
files briefs before the Supreme Court without disclosing any of
those links.
Setting aside all those links not being disclosed, what are
the problems with the ability of somebody in that position to
drive royalties into a Justice's pocket while organizing
massive purchases, perhaps even bulk purchases, who knows? And
why should there be--why should there not be disclosure of
these contractual relationships when cases come up in terms of
looking at recusal?
Mr. Sherman. There absolutely should be disclosure in the
situation that you described with respect to amici or parties
who are--effectively have the ability to funnel money to a
Justice. And again, without casting aspersions on the nature--
or the motivation of the relationship, the nature of it demands
disclosure, and it also demands an independent recusal process.
And, you know, I think if the SCERT Act is passed, one of
the things that will happen if the Justices have to sit in
judgment of each other is that there will be a chilling effect
on the kind of conduct that we have seen over the last few
years. Because the Justices, not only do they not want to sit
in judgment of each other, they don't want to force the other--
their colleagues to sit in judgment of them.
The reason why right now the Court is operating with carte
blanche is because every Justice has the individual decision to
decide on their--whether they should recuse or not, and they
don't have to disclose it at all. And if I may, I would just
add one thing about the duty to sit, which I also found
incredibly problematic and frankly, arrogant.
I would say that if the Justices were serious about this
duty to sit, then they would, of their own accord, enact
significant prophylactic measures to eliminate conflicts before
they arise. That could take the form of many different things,
including banning the ownership or sale of stocks by themselves
or their families. It could manifest itself in prophylactically
deciding to ban certain types of travel.
Again, the duty to sit is important. But if the Justices
were serious about their duty to sit, then they would take
significant measures to avoid conflicts in the first place.
What the Court is saying in this two--or, three-word statement
is that they feel empowered to sit despite a conflict, rather
than a duty, given their roles, to eliminate conflicts in the
first place.
Chair Whitehouse. Thank you very much. This has been a very
helpful hearing. I'm very grateful to all of the witnesses for
attending. I appreciate it very much.
In closing, I'd note that in terms of, you know, peers
sitting in judgment of one another, that's what we do in the
Senate. That's what the Senate Ethics Committee does. It
requires peers who serve on the Senate Ethics Committee to sit
in judgment of other Senators who have gotten in trouble.
And one of the ways in which you make that real is by
having talented staff and staff attorneys who go through the
process of finding out what the facts are so that a proper
decision can be made by the peers against or as to each other's
conduct. And in the case of the Supreme Court, not only do you
not have the peer review, if you will, you don't even have the
most elementary fact finding.
There is not a court in the country, in my estimation,
where if a recusal issue was properly raised, there would be no
way to determine what the facts actually were as to whether a
Justice or a judge should recuse or not. It simply doesn't
happen anywhere else. And the idea that the Court, setting
aside being unwilling to sit in judgment of itself, is
unwilling to even have facts found about itself, is so out of
kilter with basic premises of due process and proper procedure
and American rule of law that it's a little bit astounding to
me.
And the fact that we just don't ever get a proper, honest
answer about even the facts, setting aside what you then do
with them, is a little bit stunning. And I'd also note, in
closing, that there's a perfectly good Financial Disclosure
Committee that sits within the Judicial Conference.
And if the Justices have questions about whether their
conduct might violate the ethics rules, they've got an all-
judicial place to go where other judges would give them advice
and let them know, ``Whoops. No, you shouldn't do that.'' ``No,
you should probably have disclosed that.'' So, when we're
evaluating a Justice's determination to rely on what he, I
believe, called ``informal opinions of colleagues and others,''
that Justice was bypassing the actual judicial system through
which any Federal judge can get an advance private decision
about what they need to disclose.
And I think one of the reasons that so many other Federal
judges are so furious about where the Supreme Court now is, is
that they live within those rules. They file their questions
with the Code of Conduct Committee. They file their questions
with the Financial Disclosure Committee. They abide by the
results that they get. They don't have a hallway conversation
with a colleague about an ethics issue and then end up taking a
position that is virtually indefensible. And so there are many,
many ways in which this can be resolved.
I just want to say that I, for one, and I think most of my
Senate colleagues, and at least on the Democratic side so far
as we've heard today, are going to persist at this. We simply--
we are in an intolerable and indefensible situation. And if the
Court itself, or the Judicial Conference acting as the overseer
of the administrative aspect of the judicial branch, which this
falls into, won't act, then it leaves it to us to act.
The worst-case scenario is a Court whose credibility is in
freefall because it won't hold itself to standards that every
other Federal judge knows are proper. Thank you very much. If
anybody has--I don't know if there were any questions for the
record. No. Well, if there are any questions for the record,
they've got to be in by tomorrow.
Oh, we've got a whole week here. In budget, we're much
tougher. You got a week. If anybody has questions for the
record to ask the witnesses. If we get those questions, we will
pass the questions to you. We hope that we can get rapid
responses back to those questions. I appreciate very much the
dialogue that we've had today. I appreciate very much all of
you being here. And with that, hearing is concluded.
[Whereupon, at 3:16 p.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
A P P E N D I X
Additional Material Submitted for the Record
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