[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

                              ----------                              

                        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

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]