[Congressional Record Volume 170, Number 144 (Tuesday, September 17, 2024)]
[Senate]
[Pages S6072-S6073]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                            Judicial Ethics

  Mr. President, on another matter, free speech has been an animating 
principle for my entire career here in the Senate. I am second to no 
one in my defense of the First Amendment. So I have found the recent 
habit of the Federal judiciary's bureaucracy to try and abridge its 
protections alarming, to say the least.
  The courts are where citizens go to have their free speech rights 
vindicated against censorious government officials. I know this from 
experience. I sued to stop the anti-speech campaign finance rules 
signed into law by President Bush, and I took it all the way to the 
Supreme Court.
  But where do people go when the courts decide to behave like any 
other branch of government? When they put other interests over the 
First Amendment? Even having to ask the question is troubling.
  Two of my colleagues and I recently wrote to the head of the Standing 
Committee on Federal Rules to express our opposition to the proposed 
amendment to the rules governing appellate courts. The amendment is the 
result of persistent bullying of the Senate Democrats, and it would 
force parties seeking to be heard as friends of the court to disclose 
their donors in certain instances.
  The forced disclosure of donors is a longstanding offense against the 
First Amendment. This has been abundantly clear since Justice Harlan 
eloquently explained it in NAACP v. Alabama. The courts only tolerate 
forced disclosure in cases of actual candidate electioneering to ensure 
election integrity. But court cases aren't elections, and friends of 
the court are not candidates. The fact that the Appellate Rules 
Committee doesn't understand this and wants to chill free speech by 
mandating donor disclosure is a shocking reversal of NAACP v. Alabama.

[[Page S6073]]

  That is why my colleagues and I encouraged the Standing Committee, 
the Judicial Conference, and the Supreme Court to scrap--scrap--this 
unconstitutional amendment.
  Unfortunately, there is even more. Another committee in the judiciary 
bureaucracy, the Codes of Conduct Committee, recently amended one of 
its advisory opinions to prevent law clerks from seeking political 
employment. This is the same committee that tried to ban Federal judges 
from joining the nonpartisan Federalist Society while allowing them to 
join the highly partisan and leftwing American Bar Association. The 
committee reversed itself on that boneheaded decision after an uproar, 
an uproar from the judges of all political stripes.
  In its new advisory opinion, the committee concluded that clerks 
could seek employment from law firms, impact litigators, elected 
officials, and the government, but they cannot even talk to political 
parties or candidates for office about a job. Doing so, they conclude, 
``risks linking the judge's chambers to political activity, which could 
compromise the independence of the judiciary.''
  Consider just how absurd this is. First, political activity is at the 
core of freedom of speech. To single it out for a special disability 
among clerks seeking employment turns the First Amendment on its head. 
Prohibiting a clerk from discussing employment options with the Harris 
campaign because it might make ``the judiciary'' look bad hurts the 
clerk's constitutional rights in order to preserve some theoretical, 
attenuated interest.
  Second, it is indeed a special disability and one that has no 
correspondence to the real world. Why is the ``link'' any more 
problematic when a clerk wants to talk to a Republican campaign, which 
is prohibited, but not when she wants to talk to an elected Republican, 
which is allowed? What about seeking employment as a political 
appointee in a highly partisan Garland Justice Department? Do the large 
law firms to which the Democratic Party outsources its campaign 
litigation not provide a ``link'' to the judiciary?
  Indeed, one prominent law firm, the Elias Law Group, explicitly 
claims that its goal is to elect Democrats. And yet a clerk can 
presumably seek employment there but not from the Democratic National 
Committee? These are distinctions without differences.
  But wait, there is more. Last week, the Judiciary Conference, in its 
zeal to take a hard line against misconduct in the workplace, referred 
a disgraced former judge to the House for impeachment. Yes, that is 
right. They referred a private citizen for impeachment.
  Without getting into the merits of the allegations against the former 
judge--other than to note that they caused him to resign in disgrace--
this was a remarkable action by the Federal bureaucracy. They were 
surely aware that whether or not you can impeach a former official is 
hotly disputed, but they referred it anyway.
  In other words, while trying to make a point about one political 
issue--workplace misconduct in the judiciary--they ended up making a 
point about another one--the impeachment of former officials. And for 
what? Forty sitting Senators have already said that you can't do this 
as a matter of constitutional law, thereby making the conviction all 
but impossible.
  The judiciary itself is under increasing attack from Democrats who 
want to destroy it as an independent branch of government, and the 
judicial bureaucracy seems desperate to appear apolitical. It has been 
taking affirmative steps to virtue signal on issues that matter to 
Democrats, from Federalist Society membership to single-judge divisions 
to amicus disclosure.
  It would be one thing if this were empty virtue signaling, but we are 
talking about behavior increasingly in tension with constitutional 
provisions, including First Amendment rights.
  So my advice to the Judicial Conference is this: The way to avoid 
getting involved in politics is to avoid getting involved in politics.