tv House Judiciary Hearing on Ethics Accountability and Transparency CSPAN August 9, 2019 3:32pm-5:10pm EDT
on television and online, c-span is your unfiltered view of government so you can make up your own mind. brought to you as a public service by your cable or satellite provider. >> next testimony from law professors about ethics and refusals in federal courts. code of conduct for the supreme court. chrisman and johnson of georgia chaired the hearing. held by house judiciary subcommittee. >> the subcommittee will come to order without objection the chair is also rise to declare recess of the subcommittee at any time. we welcome everyone to this morning's hearing on the federal judiciary and the 21st century ideas for promoting ethics accountability and transparency. i will now recognize myself for an opening statement. good morning and welcome today
would begin the first in a series of hearings on the state of the federal judiciary in the 21st century. in this hearing we will investigate ideas for promoting ethics, accountability, and transparency in the federal courts. we focus on these ideas in our first hearing on the judiciary because they flow from two foundational principles of due process. first that no one can be a judge in his own case. second, to " form a supreme court justice felix frankfurter ", justice must satisfy the appearance of justice". justice must satisfy the appearance of justice. both rules embody the understanding that the constitution's implicit promise of equal justice under law
depends on at least two things that our court must be fair, independent and impartial and that we must also believe that our courts are fair, independent, and impartial. justice must satisfy the appearance of justice it might take a second but we intuitively understand that. it means that as the supreme court recently explained "both the appearance and reality of impartial justice are necessary to the public legitimacy of judicial pronouncements and thus the rule of law itself". i think that's why people are so surprised when they learned that the supreme court isn't bound by a code of ethics unlike nearly every other court in america. it just doesn't fit with their understanding of what it means to be a judge let alone a justice of the united states supreme court. that's why it's so concerning
when a justice does something prohibited by the code of ethics they don't follow and that every other judge does. that's why i was proud to introduce hr 1057 the supreme court ethics act which would require a code of ethics floor at the supreme court. i was also heartened to learn from justice eleanor kagan recent testimony that the supreme court may also be discussing whether to adopt a code of ethics on its own. this would be a welcome development and i hope that this hearing and the show support for my bill will encourage this discussion to continue in earnest. i'd like to turn to the second principle framing today's hearing. that no one can be a judge of their own case. everyone understands this. that's why people find it so troubling that when a potential conflict of interest arises
each justice decides for him or herself whether or not to be recused from the case without anyone else reviewing their decision. the same basic concern arises when people learn that if they think a lower court judges too biased to fairly decide the case that same judge is the one who decides whether he or she needs to step aside. the fact that judges don't normally explain these decisions doesn't make things any better. i think it's clear that these problems aren't resolved if we think a judge or justice made the right decision or even when we reflect on the competence and integrity of each judge of each and every judge. we are talking about the rule of law. that means rules and laws, not
outcomes or individuals. that brings us to you, this is a distinguished panel and i very much look forward to hearing your ideas on how congress and this subcommittee can help the court solve these problems. i also want to hear any concerns you might have and i am especially interested in your thoughts on the constitutional principles at play when congress establishes rules for judicial conduct and procedure. i hope you will be willing to work with us as we move forward from this hearing. thank you and i look forward to your testimony. >> it is now my pleasure to recognize the ranking member of the subcommittee. the gentleman from alabama mississippi. >> thank you to all of our distinguished witnesses to come saturday. i've seen firsthand the importance of the judiciary and i'm proud of the subcommittee will help ensure the structure
tools and resources to efficiently and effectively. people all across the united states turned to the federal court system to settle disputes and adjudicate cases fair and impartial manner. our courts deal with intricate issues and complex law to reach a decision based on the merits of the case and it's important that the public interest is judicial decisions today is titled the federal judiciary in the 21st century. ideas for promoting accountability and transparency specifically we will be testing the code of conduct for the supreme court justices posting judge injustices by financial disclosures online posting of recusal notices and a reason for the recusal online. congress should constantly be considering how we can work with the federal judiciary to greater transparency and efficiency and am interested in hearing our witnesses this morning.
however, i have concerns with the possible negative consequences from these proposals. current proposals would require the judicial conference to create a code of conduct for federal judges and justices. this is both questionable and repetitive. federal judges are currently already covered by the judicial conference's code of conduct and the judicial conference does not oversee the supreme court. it seems strange that we would have lower court judges creating a code of conduct for the highest court in the land. there are also concerned that requiring a code of conduct for the supreme court would be unconstitutional. i also understand that chief justice roberts is working on a code of conduct for the supreme court justices and would like to learn more about the progress that's been made in that effort. there have been concerns raised with posting judge's financial disclosure aligned with the high profile and sometimes contentious decisions that
judges might make the safety and security
concerns. i'm from alabama and i remember quite vividly when judge robert dan serving on the 11th circuit court of appeals was assassinated. the security concerns are not hypothetical and they are very real. judges face the dangers from the disgruntled former defendants and plaintiffs in which it cautiously when making more personal information available that can be used for safety of judges". disclosures of recusal explanations are listed judges recusal also raised concern. that is cases for a variety of reasons. many of which might be personal and disclosure could be used by future to gain an advantage. there is no requirement that members of congress explain why they exchange from voting and i think many colleagues would be opposed to such as recent see what impact such a requirement might have. in closing, we should always
look at ways to ensure the
courts are transparent efficient and effective when adjudicating cases the concerns with these proposed changes. i would caution that we should be sure to robustly scrutinize any legislative proposals for possible negative consequences and long-term implications for our judicial system. i want to thank our witnesses for their time particularly on an early friday file morning for being here. thank you very much mr. chairman, i yield back. >> thank you congresswoman. i'm pleased to recognize the chairman of the full committee the gentleman from new york, mr. nadler, for his opening statement. >> thank you mr. chairman for holding this important hearing today. the federal judiciary's pillar of the initial government institution nearly synonymous of upholding the rule of law. when congress is a coequal branch conducts oversight of
the court with hearing such as this one is with the following goal in mind. to promote and protect this institution in order to save judicial independence and maintain public in our courts. the federal judiciary is the envy of the world. ensuring this harder is maintained. today's hearing is a part of this process. it suggests we are entire books appropriate for judiciary in the 21st century. now that we are squarely situated in the information age in which we are accustomed to accessing practically any information the click of a button we should ask whether there needs to be greater transparency with respect to information regarding the federal judiciary. for example, should we require that judges financial disclosure forms which could indicate potential conflicts of interest were usually accessible. public disclosures be made when the judge chooses not to recuse him or herself from a case
ensuring that the public's trust in judiciary remains strong. a key question for today's hearing is what is in anything ãbwhat can we do to ensure that every judge and every courts decisions regarding ethics and recusal are transparently made procedurally fair. what can we do to make sure those decisions are understandable and accessible to the public. i'm glad to say there seems to be bipartisan commitment to a further action. last congress in judiciary committee passed by voice note judiciary room act which included provision requiring judicial conference and develop a code of conduct that would apply to all federal judges. including justices of the supreme court. this congress to bills hr 1 before the people act in hr 1057 the supreme court ethics act of 2019 introduced by my colleague chairman johnson includes an identical
provision. the room act also included the provision requiring the supreme court to post a short online explanation with justice rick uses her or himself the case. i'm interested to hear the use of the witnesses on that provision. the future hearing will examine proposals to increase public access to the courts such as the electronic courts record three format drinking member colleges introduced legislation to make court proceedings publicly accessible by live or same-day audio or video along the lines of the court act which of introduced in prior years. what i'm interested in seeing what can be done to strengthen the court make no mistake i respect the difficult and important job that all federal judges and justices perform every day. reckless sustained attacks on the integrity and legally seal individual justices and judges have become all too common. physical threats against federal judges and other court offices are dramatically increased.
we cannot ignore these realities. as both branches considered judicial branch keeps pace with evolving standards of transparency and accountability in a modern democracy. we must be mindful of the safety of our judges and the women and men who assist the courts in fulfilling their responsibilities. it started we had to branches that work together to try to arrive at an appropriate approach to the difficult issue of balancing transparency and other concerns such as safety. i hope we can continue that dialogue in light of the changing times. to that end i look forward to hearing from our distinguished witnesses on these important topics. thank you again mr. chairman, i yield back. >> thank you congressman nadler. i now recognize the distinguished ranking member of the full committee the gentleman from georgia representative collins for his opening statement. >> thank you mr. chairman. i'm glad you are holding this hearing i think it's a great
time i'm glad to have the witnesses here on a friday morning. what a way to start the weekend. this is a subcommittee holding the committee so congress can promote ethics, transparency. the federal judiciary is held itself to the high standards of the legal profession which is enabled for democracy. it's built a level of institutional trust to continue and control in the arbitrary and some of the most bitter disputes in order to maintain that trust words must ensure they are transparent and accountable to the american people. while i generally support the idea the supreme court should have its own code of conduct i have concerns with the proposals that have been performed by the majority. many concerns are specific to the function of the supreme court in the highest court in the land difficult questions remain such as who would administer the code and endorsing the code of congress
would mean lower in instead of imposing i would like to work with the chief justice to adopt the code of conduct if the counselor 3d realities of being is getting a bit accountability.our dancing and availability of judges financial closure would certainly be an improvement unique and security concerns mostly spoke up especially eloquently fire ranking member. federal judges must be considered larger cost to hariston for those of us who have worked in the court system is more and more not only from the prosecutor standpoint the defense standpoint and the judges and for those of us who work in the courts they became families is that we know each other we work with each other and this has become more and more concerned and i want to make sure we consider that as we go forward. federal judges for lists.
they work in close proximity some of the most egregious defenders of our criminal justice system. the potential to put the judge at risk for the family by very real and very concerning. the public disclosure which the justices recusal explanation also intending consequences that can result of the parties leveraging their explanations benefit of current decline will show that's why we are here, that's why can't exist in after we have hearing. this is something for us to bring to the table and i'm glad you all were here and we will hear those statements. i look forward to the committee's work and what i think the chairman not only the subcommittee but the ranking committee of subcommittee as well but the full committee chairman as well. i look forward to a wonderful hearing. i yield the floor. >> thank you congressman collins. i will now introduce today's witnesses.
amanda frost is a professor of law at the american university washington college of law. she writes and teaches in the fields of constitutional law, immigration, and citizenship law, federal courts of jurisdiction and judicial ethics. she has written numerous academic articles in such publications as the duke law journal and the northwestern law review. her nonacademic work has been featured in publications such as the atlantic and the new york times. before entering academia professor frost clerked for judge raymond a raymond randolph on the u.s. court of appeals for the dc circuit and was a staff attorney at public citizen. she has both her ba and jd from harvard and was a fulbright scholar. welcome. gabe ross is the executive director of fix the court, a nonpartisan organization solely focused on modernizing the
federal judiciary. originally from nashville tennessee mr. roth began his career as a producer at the nbc affiliate in jacksonville florida. he has a ba from washington university in st. louis and an ms in journalism from northwestern university. welcome sir. russell wheeler is a visiting fellow in the brookings institution's governance studies program and president of the governance institute. he is also an adjunct professor at american university washington college of law and a fellow of the university of denver institute for the advancement of the american legal system. previously he was the deputy director of the federal judicial center which he first joined in 1977. before that he also worked at
the national center for state courts and united states supreme court. he has written extensively on the united states courts including on judicial ethics stop mr. wheeler has a phd in political science from the university of chicago and a ba from augustana college in illinois. welcome sir. professor charles gardner j is the john f can billing professor of law at the indiana university morro school of law in bloomington indiana. he invites his writings on judicial conduct ethics and selection independence, accountability, and administration include more than 70 books book chapters, articles, reports and other
publications. prior to entering academia in 1991 he served as counsel to the house judiciary committee subcommittee on courts and property and the administration of justice. under chairman robert w kasten meyer. professor jay has both his ba and jd from the university of wisconsin welcome professors. welcome back home. we welcome all of our distinguished witnesses and thank them for participating in today's hearing. before proceeding with testimony i hereby remind each witness that all of your written and oral statements made to the subcommittee in connection with this hearing are subject to penalties of perjury pursuant to 18 usc section 1001 which may result in the imposition of a fine or imprisonment of up to five years or both. please note that each of your
written statements will be entered into the record in its entirety and accordingly i ask that you summarize your testimony in five minutes. to help you stay within that time there is a timing light on your table when the light switch from green to yellow you have one minute to conclude your testimony when the light turns red it signals you are five minutes have expired. professor frost, you may begin. >>. >> thank you chairman johnson. ranking member robie and members of the subcommittee. my name is amanda frost and i'm a professor of law at american university washington college of law where i teach and write in the areas of civil procedure, federal courts, and judicial ethics. one of this country's great strengths is federal courts. fluid politically insulated third branch of government that serves not only to check the other two branches of government but also to decide legal questions affecting millions of americans.
although all federal judges yield great authority in particular the nine justices on the u.s. supreme court are powerful because their decisions apply nationwide and in constitutional cases are reimbursable. for that reason it is essential both that the judges on these courts are fair and impartial and that they be perceived by the public as being fair and impartial. the purpose of the ethics and recusal laws we are here to discuss today is not only to protect litigants and society from potentially biased or conflicted decisions, but also to protect the judiciary itself. from being tarnished by allegations of impropriety. protecting the court's reputation is particularly important today when gallup polls have shown that the public's confidence in the courts has declined over the last few decades.
there are two changes to existing ethics rules and laws that can help to improve the public's confidence in the courts as well as the quality of the court's decision making. first the code of conduct provides ethical guidelines for judges currently does not apply to the nine justices on the u.s. supreme court. likewise, the judicial conduct and disability act of 1980, which authorizes investigations into allegations of misconduct by judges and also authorizes sanctions in appropriate cases also does not apply to the u.s. supreme court. the omission of the supreme court justices from the ethical rules that govern the rest of the federal judiciary undermines the goal of these laws. to protect the reputation of the third branch of government. congress can and should change this. some people argue that there is no reason to expand these laws to apply to the justices because some justices have publicly stated they follow the
code of conduct. a voluntary compliance is not equivalent to a mandatory ethics standard. either in the eyes of the public or experience shown in the eyes of the justices themselves. we do not have to look far to find many specific examples of conduct by justices that violates specific provisions of the code. for instance, justices scalia and clarence thomas have spoken at fundraising events for the federalist society which is in conflict with canon 4c of the code's provision stating that the judge "will not be a speaker, guest of honor, or featured on the program of the fundraiser. more recently political statements by justice ruth bader ginsburg, criticizing then candidate donald trump, and overtly partisan statements by judges brett kavanaugh during his confirmation
hearings appear to violate several of the cannons including canon 5 prohibition against making statements regarding political candidates or engaging in political activity.in short, we cannot rely on the justices to police themselves. second, congress should amend the recusal statute 28 usc section 455. to require at a minimum the judges and justices provide an explanation for their decision to recuse or remain on a case when challenged. in addition, congress should put in place or encourage judges to put in place procedures to refer rica recusal request to another judge on the court in at least some cases. both of these changes are well within congresses constitutional authority congress is already enacted myriad pieces of legislation regarding ethics recusal and judicial administration. as is appropriate under the necessary and proper clause of the constitution. as most justices themselves
recognize, the judiciary reputation is essential to its institutional legitimacy, that is to the public's respect for and willingness to abide by its decisions. the changes i've discussed would bolster the court's reputation and safeguard its integrity and thus strengthen and not diminish the third branch of government. thank you for your attention and i look forward to your questions. >> thank you, you came in right at five minutes. thank you. mr. roth, you may begin sir. >> chairman johnson, ranking member robie and members of the subcommittee, thank you for the invitation to testify today. my name is gabe roth and i'm the executive director of fix the court, national nonpartisan organization that advocates for greater transparency and accountability in our federal courts.i want to be clear from the start, none of the
measures we are calling for today on ethics recusal and disclosures would require a significant change in the way the courts conduct themselves. the supreme court already said it holds itself to a high ethical standard here we are merely asking the right the standards down so we can see and understand them. every federal judge and justice already. financial disclosure report each year which eventually is made available to the public. we are merely asking that they make the public on the internet. it all judges and justices recuse themselves from petitions and cases when appropriate and for particular reasons.all we are asking is for them to share with us the general category of conflict that calls them to conclude that recusal was necessary. it's the summer, we are not trying to assign the judiciary a lot of additional work. we just want them to show their work. the work they say they are all doing to make sure they are meeting the high ethical standards that the public wants to hold them to. now onto proposals.
first on whether the supreme court should have a fine new binding code of conduct. do i believe the scotus ethics code. the judge or justice from speaking publicly about a presidential candidate were accepting gifts from a well-known political donor? would it make a judge or justice reconsider appearing at the annual fundraiser for part of an organization or sitting on a case involving a publishing company who has just paid her? maybe. that's as good as i can give you. maybe. that's simply better than trusting that the ethically murky practices that are not covered by the recusal statute will suddenly stop occurring each year. ...
executive branch at the office of government ethics and standards of ethical conduct for branch employees. it follows the framework at least in efficacy. second on whether i annual financial disclosures should be posted online. congress and the executive branch already permit a portion to be posted online so we know it should be done. when it comes to disclosures they should not be left to act as a middleman, first obtaining the files from the disclosure office and converting them to pdf file files and posting them online as we did last week. primary sources should be posted by the primary source. current disclosure regulations the members of the public or wish to obtain a disclosure must request on their form promising they will use the information for commercial purpose or to obtain a lien against the judge but there's no reason that box should be placed online. the ideas for disclosures are brought up the judicial conference inevitably cites
these concerns as a reason for opposition. i'm happy to do a top-down security review in the fy 20 budget has the additional budget to protect the judiciary but also believe we can find a way to balance privacy. a public's reasonable desire to know within a reasonable amount of time whether it's judges and justices are trying to hide something from their 30 300 million constituents. finally on why judges and justices explanation should be made public, the exercise of fewer word for refusal notice would not only improve institutional accountability, it would assist the justices to speak more about their conflict of interest. when we were founded four years ago we have identified several refusals with justices scalia and roberts should have disqualified
themselves from hearings. the supreme court used the list things like refusals to stop this practice in 1964 for reason i can't figure out. this should be resumed in a more direct manner by asking each judge to refer to language of the recusal statute when announcing his or her refusal triggered by something like one's finances. pretty simple. chairman johnson, ranking member roby and members of the subcommittee thank you for the opportunity to testify. it's an honor to work with you over the past few years under a proposal that would build a more open and accountable judiciary and i look forward to answering any questions you may have >> thank you mister frost, you came in earlier than professor frost did. mister wheeler . >> thank you mister chairman. member roby. i have laid out my positions in a statement and i won't belabor this in any great detail here but would refer you to the statement but in brief i believe the supreme court should have a code of conduct for no other reason than its own self interest
but with deference mister chairman, i don't think it's a good idea to ask the judicial conference of the united states to develop a code for the court that runs counter i think to the statutorygovernance structure for the federal courts that congress has created . i have written and i believe that judges should explain the reason for refusal on the record for transparency, for a pellet purposes and also to create a common-law of recusal, but i do worry a bit about requiring such a statement in matters of nonfinancial conflicts, embarrassing details that judges might decide to sq recusal rather than reveal those matters on the record so i think any rule has to find an exception to protect judges in that circumstance. i acknowledge that the federal judiciary where i
worked for most of my career is a bit transparency adverse . i took note in my statement of a judicial conference's reluctance until several years ago to post online the so-called biden records, reports of cases that hadbeen delayed , most of them delayed and the bench trials that had been delayed identifying those by name. those are now online but it took a while for that to happen. i do believe however in the area of financial disclosure forms a little less transparency is desirable and i think the judicial branch has hit the right balance in itsdecisions to provide disclosure statements on a case-by-case basis , appropriately redacted for the particular requester. and finally, as mister ash wanted me to comment about it, about the professional
blind trust, whether judges should be required to put their holdings into a blind trust which i think is an ideal well worth considering but at the moment it runs into the statutory mandate that judges keep themselves informed about their personal and fiduciary financial interests. i don't think you can reconcile one with the other so the statutory adjustment i think is in order. but let me say more broadly i came to this subject as you indicated mister chairman as deputy director of thefederal judicial center. particularly in support of the work of the so-called briar committee . chief justice rehnquist appointed at the urging of former chairman of the committee mister sensenbrenner and that prior committee produced a revamped and more aggressive administration of the judicial conduct and disability. and that work though i became aware of the tensions involved in effecting effective judicial ethics policies. the code of conduct for us judges tells judges and i
think quite properly so that they should be subject to restrictions on theirbehavior at the ordinary citizen would find burdensome and they should accept those restrictions willingly . i agree with that. but i also think those restrictions can't be so obtrusive as to discourage qualified individuals who accept the appointment to the federal bench for staying on the federal judiciary and balancing these tensions, i suggest is not easy. some may think these are easy questions to resolve, i don't think there is a questions to resolve. given the importance of the values that state, importance of judicial independence and accountability in the other and other tensions , other values that are intentions . so these tensions are easy to balance, i appreciate the subcommittee's efforts to take them on and deal with them and i be happy to try to answer any questions you may have . >> and you came well under
five minutes, thank you so much. professor case. >> thank you mister chairman. i feel as though i did not see it all and win thecontest for being the briefest . it's a pleasure to appear before the subcommittee. i once served as counsel and i really do look back with a fair amount of pride at the extent to which the subcommittee worked together to produce bipartisan reform and i really believe that the issues before the subcommittee today are of the same sort that allows for that same opportunity and i want to focus on that. i'm going to in some ways to go off script because i wanted to begin my talking about why it's important to have a code of conduct for the supreme court but to a man and woman on your side of the aisle here i think there's a consensus that it is important, it's just a question of how do we get there from here and again, i would agree i think with miss roby that ideally the solution is the best that is for the supreme court to
adopt a code for itself. that is the optimal solution. however, there in mind and i think it's reason, it's there to be a skeptic because we now have these days all of which has reports that have adopted codes of conduct, the lower courts all about the codes of conduct, the only court in the us that having gotten to it the us supreme court so i think there's value in keeping the pressure on, in other words to work withthem to try to get them to promulgate their own code but to recognize that the back of it all , the second best option in my judgment is for this body to pass legislation directing the supreme court's to promulgate its own code of conduct. no but i do not favor the idea of having the judicial conference do it for the reason that mister wheeler and others have suggested that i do think directing the court to do it would be a perfectly fine and it sound idea. the issue then is without the
constitutional. is there a concern with that and i think the answer is any yes. the article 1 section 8 authorizes congress to make all laws necessary and proper for carrying into execution all powers vested in the government of the united states and a plain reading of that provisions any authorizes congress to establish a supreme court's separately and if you look back to the very first congress , they did just that. in the 17, judiciary act of 1789 establish a supreme court's, determine its side, spelled out its duties and included a low, unique for all judges to take to ensure that the supreme and lower courts were comprised of judges more committed to principles that define our democracy since the beginning of western civilization and i'm quoting from the 1789 oh that congress asked judges to swear to. i do solemnly swear that i
will administer justice without respect to persons and will do equal right to the poor and rich and will faithfully and impartially discharge and perform all the duties incumbent on the according to the best of my abilities and agreeable to the constitutions and laws of the united states, so help me god. this is a code of conduct. this is a short code of conduct that justices are swearing to and if congress has the authority to require judges to take an oath to abide by court ethical precepts at that point, i don't see why they have, when they don't also have the power to ask the court to elaborate on the ethical precepts to which they are willing to abide. judicial conference as i say has expressed concerns about doing that, i'm with you on that. i'm on board with the notion the judicial conference couldn't be that body. courts develop their own of conduct, the supreme court shouldn't sell one yet. thesecond point is financial disclosure . to me the problem begins in this day and age making information available to the public making available online.
it's the way we do business in the 21st century.the judicial conference is objected to posting judges financial disclosure statements on the website citing privacy concerns and i urge you to work with the judicial conference to resolve those and in that regard i would ask one question. at this point, i can go on to the judicial conference for the ao and say give me reports on every one of the federal judges and in due course i would get them with private information redacted. i can post onto the web so what i want to know is what privacy concern is associated with cutting out the middleman and then them posting redacted information with all of thesecurity and private information taken out and posted. to me, i think that the issue and there's got to be a way we can fix this . what have to do with this disqualification reform, judges have an obligation to provide reasons for the decisions they make and when they decide to disqualify themselves from your case they're duty-bound to hear the public has a right to know why and it is a little different than with
abstaining as a legislature because you're under no obligation, no ethical duty to participate to vote. the judges have an ethical obligation to participate unless disqualified. i understand the judicial conference is concerned but i think my suggestion would be one thing that a report that mister wheeler was responsible for writing, one possibility is to go with a checkbox approach which requires judges to identify the grounds for the statutory grounds for disqualification without going into the detail but i'll collaborating on the privacy, again we can make this work . thank you. >> thank you, professor. three out of 48 bad. >> i did my best. >> i appreciated, thank you. we will now proceed under the
five minute rule with questions. i will begin by recognizing myself for five minutes, professors frost and geyh. you're confident congress has both the authority and obligation to regulate the federal judiciary's ethics and recusal practices, is that correct? >> yes. >> what do you make of chief justice's suggestion to the contrary mark. >> could you explain, by that you mean his suggestions to the contrary that the congress doesn't have the authority? i interpret what the chief justice is said as saying it is an open question, in other words we've never gotten to this, not that they don't have the authority and me, you can read that two ways. one is as a warning. don't go there because it may be unconstitutional. the other is our system works because for 200 years chief justice at this for 200 years
we have a custom of abiding by these practices without exception and i think that custom is what explains why this has never been resolved in the positive area is not a problem, for 50 years the disqualifications that it has been in place and no one has challenged itsuccessfully or otherwise . i think that's what's going on. >> i'll just add officer j already said it eloquently in both of our written testimony that there are one of the ways in which we determine the constitutionality of congresses action is to look at history, what congress has done in that part of constitutional analysis and we can see since the very first congress and the actions of the first congress are particularly informative when it comes to the constitutionality of congressional action. from the very beginning congress thought it had the authority and took action to regulate the courts. both somewhat intrusive administrative division like
the quorum requirements, the date of succession and also matters relating directly to ethics such as oath which professor jay just mentioned so that history shows the permissible. >> what message does it send at the supreme court has refused to adopt a code of ethics and what are the long-term risks associated with the court's refusal or failure to do so? >>. >> message it sends obviously is not a great one because i don't think we want, part of what i care about here is not just the reality of impartial and fair justice but the public perception ofthe courts which i think is , what someone at risk today for many reasons beyond just the subject we are. so i think it's unfortunate that the courts have so far been reluctant to adopt a code of conduct for itself. hearings like this i think are valuable, pushing hopefully the agenda of those nine justices to rethink that and there have been some
suggestions by the courts that it is now seriously considering adopting a code. the message that has sent so far is unfortunate but i'm hoping we're at a moment where it's reconsidering that position and what about the code for itself. >> we are in an era where the legitimacy of the courts is confidently questioned. and the public's faith in the supreme court has eroded area it's the kind of legislation we're discussing here today appropriate in this environment? mister wheeler? >> is it appropriate that we are discussing this legislation? and if you'll put on your microphone. >> by all means. that's what congress is here for as my colleagues have said. i was has been regulating the courts in various ways since the founding and i think can only contribute to a better understanding of what the federal courts are all about . i think that's a pretty obvious proposition. >> mister roth, do you
believe the implementation of a code of conduct for the supreme court would change the institution and if so, how? >> i believe it would change the institution for the better. facing the course is something that we are being discussed more and more and the idea, it's something that people don't realize when you talk about the supreme court, you think about certain opinions, certain historic opinions, what they're doing now but when you tell them all, they don't have a binding code of conduct like the rest of the federal judiciary and it makes people think what is that? and it's almost makes it seem like there's something fishy when there probably isn't it's just that this is what every other court has done in the supreme court is a court what it should do is law . >> thank you, so as not to violate my own five rule, i'm going to your back the balance of my time and call upon the ranking member, commerce woman rowley for questions . >> thank the german and this
is for all of you and if you could just be because we only have fiveminutes . judges oversee cases as offenders in our criminal justice system and the us marshall started to say that passing financial disclosures online would identify family, location and other information making judges and justices vulnerable., so how can we appropriately mitigate the danger these disclosures might create? and go down the line, please. >> obviously the safety of our judges is of paramount importance. i think red actions and working carefully with judges and coming up with a list of structures and guidelines for those red actions would alleviate that problem.>> i tend to agree that you can't
be in an organization that advocates for transparency without being an organization that advocates for greater security and i think those two things go hand-in-hand both with the supreme court police and us marshall services working together to ensure that the justices safety remains paramount and given the fact that the supreme court has already said interface called the point in that financial disclosure reports are constitutional and chief justice rehnquist has said he's okay with them being posted online. i think we have an opportunity for the us courts themselvesto move that forward while balancing privacy . >> i don't have much to add to that. it's obviously justa question of balance . of course, the court's current position is that to release financial disclosure statements on a case-by-case
basis doesn't release them free of charge. i think that's the proper policy but this is one of those tough questions. if it were easy we would have resulted a long time ago. the difficult question and i acknowledge that it important for congress to work with the courts to do a sensible solution . >> you answered the marshall service stated that public disclosure of all judges and justices would create a serious security, so in your testimony i would ask you more specifically why should we not give deference to this risk? >> we should give deference to security risks. i think it requires a follow-up question than the conversation because i think if we accept that interest groups are currently requesting and they are, they're requesting disclosure statements and publishing them online. this is already happening. and to what extent and posting it, cutting out the middleman is not a fact that. this is a redaction problem, with actual information the privacy of judges. and the safety of judges,
absolutely but if you've got to publiclydisclose the red and stuff, i don't think it makes a difference whether the judicial conference posted online or whether interest groups are currently doing it requested and post them online themselves . >> officer frost, with the disclosure of the essential conflicts that do not justify a recusal encouraged parties to file more frivolous appeals of the judge's decision not to recuse themselves and howwould this impact already overcrowded dockets ? >> the parties have incentives themselves not to file frivolous appeals regarding recusal. a recusal is a very sensitive topic and the filesystem engine as a lawyer years regularly before the same judges, that's a difficult thing for a lawyer to do. i was a practicing lawyer for many years and what i hesitate todo it so there's a great disincentive to file a motion to recuse . take a frivolous appeal seems to me something in terms of cost and the time the lawyer would have to spend and the reputational that lawyer would take strike me as something that would not be a
big problem. and of course it's a truly pluralist appeal can be resolved quickly. >> mister roth, as justices and judges refusal and excuse for publicly available, what safeguards exist to prevent form shopping? >> i think that if you know, if you're a judge and okay, you can't form shop if you're at the supreme court obviously because that's the only option. this is going to be like a retrospective thing so it's not, if you have a judge who has a financial conflict, personal you may learn that an annual financial disclosure reports when it come out and secondly, if you learned in an early stage of the case , that's fine. that's the statute working. >> there are no protections. particularly when you're talking about the lower court level . but okay, i'm going to move on.
>> similarly, did you got me off? i'll come back around to. >> thank you ma'am. next we will have prime ministerquestioning from the chairman of the full committee , congressman ratliff from new york. >> thank you mister chairman. professor frost, how would you enforce code of ethics on the supreme court? >> the question. i guess iwould say one step at a time.my first goal for the supreme court would be to have a code of ethics . the cause of its prominence and its, they have public
attention the justices for their daily activities. i would hope one enforcement mechanism would be that they would buy into it and agreed to it, they came up with it, they sign on to it, now binding on them, they would follow it. if that doesn't happen the second line of defense is there's a great deal of public attention focused on those nine people and the criticism would have more bike and go further they were violating provisions of the code. the next that this should we have some sort of enforcement mechanism like we do for the lower court judges often work with the judicial conduct in disabilities act -mark i'm open to having that discussion, i want us to be careful but i guess i'd say one step at a time. but get a code in place first . >> anybody else want to answer that question? >> about the enforcement of the code? first i'd understand the code itself is exasperation and i don't regard it as my good friend amanda frost says as binding but to set up a disciplinary mechanism, i think is just a cure worse than any disease of occasional misconduct by the courts. you have a disciplinary mechanism in which people file complaints with the justices themselves.would then set up some sort of a mechanism to resolve the complaint as a person with
additionalcouncils and the judicial conduct and disability . in a body that's collegiality is being strained already i don't think injecting that kind of thing into the court makes a lot of sense. the alternative is to have lower court judges received the complaint and their there's the potential for even more misuse. sometimes a section on a judge whose found to have been committed misconduct is a reason for a caseload for a while, you want to have lower court judges telling the supreme court justice you have to sit out a couple of cases. imagine the consequences of that . there are a lot of instances of supreme court justices engaging in questionable conduct, i detail them and they try to fix it with imposing that part of the mechanism seems to me to be folly. >> thank you professor frost, what signal would send to supreme court's that progress cannot pass laws regulating judicial ethics?
>> i think that would be extremely troubling. i was troubled by chief justice roberts 2011 report in part because he was commenting on a legal issue that might come before him. and because in that report he suggested, he didn't state outright but suggested there might be a constitutional problem should congress impose ethics legislation. i'm hopeful now that perhaps upon rethinking this issue and perhaps in consultation with its colleagues they are moving to a different position, not the congress lacks the constitutional authority but let's not test that issue. how do we avoid testing that issue? we create a code for ourselves. that's what i'm hopeful this conversation is leading towards . >> what would the consequence be to our constitutional structure if the supreme court did such a law?
>> there's been fascinating examples in this nation's history of what i will call the showdown between congress and the courts and sometimes the courts back off and sometimes congress backs off. what typically happens if the american people in some way shape or form decide through their use of these two institutions and frankly if the supreme court were to issue a self stealing opinion that said congress which is supposed to under the constitution regulate us in all sorts ofways, lacks the authority to keep us ethically within bounds , i would hope that in part the public reaction would be powerful and would affect the court and there's lots of examples and scholarship to show thecourt response to public opinion . >> and finally, on this subject, for professor frost and geyh, how do you see judicial ethics recusal within the separation of powers act? or did you just answer that? >>: one point which is i care enormously about the independence of the court and to use the term professor jay
has used, situational independence. i'd be upset to see congress try to control the decisions of the court by penalizing the court for issuing decisions whose outcomes they don't like. that's not what we're talking about. we're talking about regulating the court as an institution and that is appropriate and well within the bounds of what congress has always done so i care very much about protecting theseparation of powers when it comes to the courts decisional independence and it's appropriate and within the constitution structure for congress to oversee the institution of the court to do such legislation . >> thank you. thank you, we will now here five minutes of questions from the gentleman from arizona. >> thank you mister chairman. i appreciate all of you being in this room,it's interesting and i want to go with professor frost was just talking about . as we sit here and we're talking and the judiciary act of 1789 where congress set a
precedent getting in and basically setting up a court from a very i would say some fine-tuning, some administrative issues and setting it up and you get to the point of separation of powers , and we talk about this, we talk about this all the time.at least in my group in congress we do. where do we set these boundaries? what do you see as the legitimate check on the independent judiciary from this branch? that's all of you and be as brief as you can but as extensive as you can, knowing that i might have some follow-up questions. >> i think the array is pretty significant. the 100 ton gun is empowered to impeach and remove judges. there's the power over the budget to make sure they're not engaging and wasteful spending, the power to establish lower court five establishment, disestablish
lower courts and regulate their operations extensively to practice procedure. >>and their jurisdiction . >> and their jurisdiction, yes. and i think that there's also the power to do necessary and proper power to make sure that they have the framework necessary to be the judicial conference of the united states, to create the federal judicial centerwhere russell used to work so i think that's kind of the array and at the supreme court level to manage its jurisdiction as well . >> that's the power of oversight, if congress has the authority to oversee operations of the lower court and it's good for the federal courts to have someone looking at their operations area that's important as well . >> and recent history bears that out because the government said in 1978 that the format of 1989 so every 20 or 30 years there's some form of judiciary which in
most cases applies both to the justicesand lower court judges . >> i agree with everything my fellow panelist said. i think this kind of legislation should not be viewed as diminishing or undermining the courts but of strengthening them and that's one of congresses roles to protect and strengthen the court . >> when we look at our recession, and it says specifically that the justices shall hold their offices during good behavior, if not lifetime but it's good behavior and expand on what you've been talking about this morning on the authority of the legislative branch to basically monitor or check bad behavior and we talked about it, we talked about some of it but if you would, and we're taking this right into the ethics of the supreme court justices and in particular. >> i think there's the argument of there being a gap between the high crimes and misdemeanors are subject to
removal for impeachment and less than good behavior. that is subject potentially to regulation and the traditional conduct and disability act of 1980 tries to fill that gap by creating a disciplinary mechanism within the federal judiciary which i think is and has been deemed constitutional for reasons that mister wheeler dave, i am on board with the notion that it's a bad idea to extend that to the supreme court, but i think that is that middle ground that is open to revelation by the congress. >> mister wheeler. >> i have nothing to add to that. so i'll take back my time. >> all right, so we're good there. and i appreciate you being here and look forward to the rest of this hearing. >> the dental yields back and we will recognize the other gentleman from arizona , mister stanton.
>> thank you very much chairman johnson, thank you for holding this hearing. i think the witnesses . i'm a new member of congress and i would surprise and even be shocked that there wasn't a code of conduct for the united states supreme court to build public confidence in that important institution . we can do this and do it right and strike the necessary balances. this is a question for all witnesses and in caperton versus massey the supreme court recognized judicial integrity is a state interest of the highest order and that judicial codes of conduct are quote, served to maintain the integrity of the judiciary and the rule of law. how do we square the statements with the court's refusal to adopt a code of conduct itself -mark . >> professor frost, want to jump in first? >> maybe human nature seem to play a role here. i think that is of course one of the interesting catch-22's of recusal where judges decide for themselves whether to recuse the supreme court
says we don't want a code of ethics but we will follow the one that exists that don't apply to us. i think it's difficult for the justices to both live up to their highest ideals and also toavoid public criticism, some of it unfair . for not following a code that was not designed for them i'm going to reference oppressor geyh's excellent testimony where he wrote how justice scalia and justice thomas spoke at a fundraiser, that clearly violates the code of conduct that chief justice roberts and said we all follow but the answer is not, perhaps that was appropriate to speak that fundraiser. that's an open question, very good when justices give public speeches at many different events to educate the public about what they do. the question is because the court itself had not come up with the code that was specific to those nine people and their preeminent role in our system of justice, they run the risk of violating the
code that maybe is appropriate to them. i'd rather see them come up with a code with a lot of public scrutiny and participation to make sure it's appropriate. that we have their highest ideals, their best goals for how to behave and then having signed on to it i would hope for the most part they would obey and if they didn't, we have i think a lot of public discussion and public controversy about why they didn't which hopefully would keep everybody in line . >> mister roth. >> to pick points, you talk about caperton, partof why this call the self-referential document. there are cases where they come out with a opinion that doesn't reflect back on themselves . there's a case in missouri said that says judges are for life, case that the press association, the steward and involving journalism and broadcasters and yet they don't allow cameras or live audio in the courtroom, similarly with massey, allowing how it's important, judicial ethics are but they don't have ethics so that to me means congress needs to step in and fill in the gap and write the code for them since they clearly don't feel
that interested in doing it themselves or if they say they did, i don't know if we should trust them, that's going to be a palpable code. >> the code is not justfor the benefit of the public to build confidence in the supreme court, it's also for the production of members of the supreme court themselves . >> i think that the key point and there's a view that the supreme court because it doesn't have a code is kind of a judicial ethics no man's land. and i think the court, it seems to me the court is its own self interest to adopt a code, but the rest all the arguments about why it doesn't have a code and exhibit a seriousness about this as we haven't seen. i'm not going to name names but sometimes the justices i've been asked about in hearings like this one, their ethical regulationsand frankly the answers they give are wrong . i don't understand what they're talking about but they give incorrect answers which i don't think is a sign
of their weakness, it's just they don't give attention to this matter as they should and they could fall out of it by adopting the code. it's not for me to tell the supreme court what to do but that's my view of it. >> in recent years, nominees to the us supreme court from both parties have been dragged through the mud in the nomination process. big money has been spent, a lot of dark money, big money has been spent from outside interests who want to influence the confirmation process. should congress do anything about that? professor? >> i completely agree the confirmation process is now deeply troubled and it is high time for that process to be revamped and restructured and for there to be a robust conversation followed by a set of principles and guidelines going forward. we don't want to see any justice go through the system we have in place now. it is bad for those justices and for the court so i very much hope that will change. >> what are your ideas?
next time. >> thank you. we will now here five minutes from the gentleman from virginia,mister klein . >> 90 mister chairman. i think i saw the gavel is quick today. i want to thank our witnesses for being here. i read your testimony with interest and i agree that transparency and accountability are critical for this operation of our courts. we need to encourage that and promote that and also i believe that it's a result question here but that congress does have the authority in one section 8 to regular the courts. i think that there's generally unanimity that the supreme court should operate under a code of conduct. the question is, should it be
, is it preferable to have it imposed by the supreme court or should we seek to impose it upon them and what are the unintended consequences of that -mark i think that leads us down a rabbit hole that professor frost spoke of that could potentially lead to a greater constitutional crisis than not imposing one but i would ask the witnesses really for just a yes, sir no answer. i think should thesupreme court have a code ofconduct, yes, sir no to mark . >> yes . >> yes. >> mister wheeler. >> of course, yes. >> and yes, sir no, it preferable for them to adopt their own code to us imposing one on them, yes, sir no? >> preferablefor them to adopt their own code . >> equally preferable. >> equally? >> yes. >> the court should adoptthe code itself . that's preferable of course.
>> they should adopt their owncode . >> i noted from professor frost testimony in your overview, the recusal laws apply to the court. the ethics and government act of 78 dealing with income reports applies to the court, ethics reform act of 89 apply to the court, the judicial council's reform and judicial conduct and disability act of 1980 does not. that deals with complaints and the review of complaints. do you think that shouldapply to the court and if so , who should be filing complaints, how should those be reviewed and are you again opening something that is going to happen unintended consequences and make the operation of the courts more challenging and more subject to partisan attack?
>> as i answered, there should be a code of conduct for the court area and i explained is preferable for the court to come up with one but it won't i would say his body should area your question is about a mechanism to investigate and sanction the justices, obviously short of impeachment which is something the body can do and there i say that i think mister wheeler who mentioned sometimes the cure can be worse than the disease, i would hesitate to create a disciplinary mechanism for the justices. first of all, i think the nine of them do in fact informally discipline each other, at least in history looking back at history, we've seen some example of justices refusing for example to allow a particular justice who they think they no longer be of sound mind to be the sole dividing boat on the case. the justices protect themselves and sanction themselves a bit area i think also as both congresses
oversight and members of the public weshould be vigilant and speak out and criticize the court when we think it's overstaffed and that is in a way a public censure and sanction. i would hesitate , i would be against having lower court judges have a method of overseeing the court or get into the nine themselves the ability to investigate complaints through something like judicial accountability act,that would be worse in the problem we're trying to solve . >> is giving the judicial council conference the ability to create this code exactly that oversight influence? >> i think i agree with my fellow panelists here who said that the judicial conference should not be charged with coming up with a code for the supreme court, rather the court itself should be encouraged to come up with a code or we could find this funny i think the last instance could be the one to come up with a code. i would hesitate have the judicial conference do it
because it does not regulate the supreme court, is made up of judges overseen by the supreme court and it itself has said it does not think that rule is appropriate. >> quickly, should we allow citizens to file complaints against a justice for violation? >> maybe the semantics,should we allow citizens to say there's a code of conduct in place? this is a future where i'm imagining such a code. there's a code in place and the justice has violated it, yes. that should be a loud and public conversation when it happens . >> our next questionerwill be a gentleman from florida , congressmandeutsch, five minutes . >> mister chairman, thanks to the witnesses for being here. the pinnacle of our nation judicial system, the united states supreme court doesn't have a written code of ethics . the only court in thejudicial branch that doesn't have a code of ethics , confounding the supreme court nine
lifetime members have spoken about but not yetdrafted and enacted a code and professor frost , it is i think little consolation that justices informally discipline each other from time to time. in order for the court to comply with conduct, every state court as we discussed today complies with the code of ethics and then enacted by the state. a lot of them on the aba model code. i've gotmany significant concerns about lack of judicial code of ethics for the supreme court's . but it's had a direct impact on the confirmation processof the newest justice , i'd like to explore that a bit . after judge kavanaugh was confirmed by the senate but before he was sworn in as a justice, justice roberts referred 15 complaints against judge kavanaugh to the circuit court of appeals, chief justice roberts instructed 10 circuit judicial council to review the complaints.
after 10 circuit judicial council commenced its review 15 complaints 283 but then on december 18, 10 circuit judicial council determined it didn't have to restriction to review the complaints due to judge kavanaugh being sworn in as a justice on the court so i'mchairman of the house ethics committee . we lose jurisdiction over members of this body, we lose jurisdiction to enforcethe rules of the house , the ethics rules when a member leaves the house of representatives.judges it seems now in the judicial branch of government, the ethics laws no longer are binding on judges once a judge is confirmed to a lifetime appointment in the united states supreme court. it doesn't seem quite right. i think it's understandable that people would be puzzled by this situation that we find ourselves in. specifically this process for
reviewing substantive ethics complaints against adding judges who ultimately are confirmed to become members of the supreme court so that specific situation i wonder if any witnesses have thoughts. yes, mister wheeler. >> all they're doing is applying the statute, the statute definition of judge to the act applies as a magistrate judge, district judge and circuit judge. excluded, supreme court so judge kaczynski resigned, resigned from the bench entirely the second circuit judicial council lost jurisdiction so too when justice kavanaughwas no longer a judge of the court of appeals , the statute law puts jurisdiction over him. you can amend the statute. >> what happened as a result? >> what happens to the investigation as a result mark. >> it died. it had no reason to exist.
>> i would quibble with the suggestion it had no reason to exist. there was a serious reason for it to exist. my question is if the confirmation had been delayed by year, how would that have , how would that investigation has proceeded under the existing law that applies to judges? >> up until that point he was confirmed and sworn in . well, just off-the-cuff i guess all i could say is off-the-cuff you have a messy situation on your hands. if you have someone pending for confirmation in the judicial council out in denver evaluating his conduct, during the confirmation hearing , i'm not going to spell out what's going to happen. it seems to me it would be quite a -- >> the judicial the judicial conference, the 10th circuit dismissed the complaint.
one of their committees and their still reviewing the complaints, that's still ongoing and i think that just over all we want to be sure that what the proposals we're doing today predate kavanaugh, they're not trying to single out any individual justice, we can go back years of talk about ethical complaints. there are things we can do to change the law so this should be getting a $200 pension, that's well within congress on its own that judges who retired in the last 10 years because of misconduct are still getting huge pensions and there's definitely language that could be inserted in the law but as soon as you become a justice that becomes a question, and extrajudicial question that's up to you guys but i don't see how you swear in still. >> we would now have five minutes of questions from the gentleman from pennsylvania , congressman russ and paula. >> i appreciate it.
i'm really troubled by a lot of the recommendations. i was a magisterial district judge area i was a rather young magisterial district judge but the disclosure of information is troubling. there was a district judge in pennsylvania whose father-in-law was killed because there was an assassination attempt on the district judge. we aredealing with bad individuals.you're sending people into jail , removing them of freedom. i think the disclosures are troubling. the recusal explanation is also, it's counterintuitive. as a judge you would only recuse for certain personal reasons.if you require a judge to then say why he or she is recusing, it would have theunintended consequence of keeping the judge on the case . because he or she might not want to say why there recusing themselves so i think there's an unintended consequence here that actually works what you're trying to do and actually forces a judge, put the judge in an uncomfortable position where they may, where they
otherwise wouldn't be in so i understand where you're coming from but i think it's not thought through and with that i'm going to yield to my colleague from alabama. >> you for yielding and i guess we're pushing up against votes being called so maybe no round two. i'm going to pick up where we left off, i was expressing concerns about forum shopping and similarly as i left off, could public explanations for recusal result in attorneys abusing those explanations ? to attempt to disqualify a judge from making them unfavorable? >> it's possible. if you have at&t versus net in the western district of texas, maybe they would want to sue.the eastern district that's already happening and in terms of getting judges off of cases, the judicial conference of the supreme court put forth an opinion saying that if your in amicus and you're putting this
amicus on the record, just to get a judge or justice off the case, you can submit that amicus. this is an ongoing conversation. there are a lot of missed refusals lately so this is what we come up with as a good response and then i don't think that one law is going to be the end to the story. >> the reason i'm bringing up these points is because it's very important as we are having this discussion at these have to be as i said in the opening statement very well thought out so it's interesting to see all of the different perspectives represented here on each of these issues and so again, i want to thank you all for being here today. i want to point out one other concern that was brought out in the letter dated june 19, 2019. on the judicial conference, james. and this is also a concern.
where were adjudged to specify the nature of every recusal explicitly already been mentioned multiple times about the security question but were by implication that a disqualification is not related to financial conflict, if that could be personal information needlessly against the litigant and or prejudice to the litigant before the judges colleagues and i think that also is a very important point to make as well, so i appreciate the gentleman yielding. i would like to mister chairman enter into the record this letter and i ask unanimous consent. >> without objection, so ordered . >> i feel back. >> i healed the remainder of my time . >> thank you. our next interrogator is the gentleman from tennessee, mister cohen, five minutes.
>> thank you mister chair, interrogator is not going to be the right term. i came late and i did miss most of your earlier testimony, i'd like to ask whoever wants to respond at any of the justices said that they were interested in doing their own? not or i can't read. >> yes, at a hearing before the house appropriations subcommittee on financial services and general government, justice kagan reported chief justice roberts is considering writing a code for the judiciary which is a positive step but i would counsel that given previous activities demonstrates future results, i think that we be in a better situation if it were congress writingthe code. i would trust that more if it were coming from the judiciary itself . >> when was that? >> she mentioned that in march of this year and there hasn't been any further
information from the board. >> they have a lot of restrictions or requirements to give notice and limitations on monies that are i guess mostly congress they abide bed and pretty much but they don't file the papers on the internet, is that right? >> that's right. i had to fill out a form which i have read here. my pen, i accident or email it in and within a few weeks, i'll get back those on a thumb drive and there in a very hard to read format so i changed the format and then post them . >> is the reason for that that the court considers long-standing judicial tradition important?>> i think it is. i've been told that there's metadata, there's personalizing information but there's not,make it a pdf and upload it .>> i want to say
that i have the utmost respect for justice roberts. i think i feel comfortable with his position. i feel confident that he will do the right thing and i prayed and i hope he does the right thing at the right time to paraphrase doctor john when the cases come before him to save the republic and i yield backgrounds of my time. >> i think the gentleman, we will now have five minutes from the gentleman louisiana. congressman johnson. >> thank you all for being here and i want to follow up on what a couple of my colleagues have pointed on with regard to the general idea of separation of powers and i had a couple of questions for mister wheeler. based on your time on the committee and general judicial center, how do you explain this to a layman, to a nonlawyer? does the congress have the positional authority to force the supreme court to adopt a code of conduct? >> i want to yield to my
colleagues who teach constitutional law but on the face of it i think it has the authority to require the code court to adopt a code of conduct. as a practical matter it would be much better if the court were to do it on its own . i can't add much to that. >> ideals of the other scholars and you cited i think in your written statement on 2011 year-end report authored by chief justice john roberts and in that report justice roberts discussed the constitutionality the constitutionality of congress treating a code of ethics for lower courts under article 3 and i wonder if you could expand on the concept of lower courts rated by congress and the constitutionalreasons for what code designed for lower courts may not apply to the supreme court . >> what chief justice roberts said in the report was as
professor jerry said we really don't know whether or not congress had the authority to impose the things on the supreme court. it hasn't been tested. but it's basic argument was the constitution created the supreme court, that puts it in a different posture from the so-called lower courts created by congress pursuant to constitutional authorization. that's where you left it . and you get scholars on both sides to examine whether or not that is a sound analysis . >> one more and in your testimony you stated that often thereason for recusal are fairly obvious and requiring reasons for all refusals could start judicial ethics regulations down a slippery slope . the reasons could involve delicate personality personal matters. what do you think would be the benefit ofmaking the judges personalmatters public ? there's a lot of concern about it . >> i can't see any particular benefit in making the details of some sort of salacious interchange of the judge or the judges spouse, i can't see any benefit of that. let me add one thing, this whole question of recusal is being wrestled within the
state real estate partly because of the conflicts created by judicial campaigning and financing but beyond that i think the states, other states like texas are looking seriously about recusal policies and it would behoove the courts and the congress to look at what the states are doing because they're being creative and very thoughtful in their analysis of this whole matter . >> this is a follow up on that but i was a practicing attorney for 20 years and it seems to me there would be a risk you can open a pandora's box if you start making publicly available explanations for recusal. attorneys might abuse that might take the explanations to attempt to disqualify a judge they deem unfavorable and you can see how that information could be misused, i think so that's one of the concerns. >> that's one of those difficult questions of balancing a couple of competing ballot interests . i have said, i'm on the record of saying by and large
just thought to state the reason for their recusal and there's severalreasons . transparency and to create a common law of recusal but there is a difficult matter in this narrow range of personal and perhaps salacious information that judges might not want to reveal if there's even the risk of not recusing them, they should . >> go ahead. >> just recently there's a judge in the fifth circuitwho recusal the case , james o and there was on the left that he was refusing because it took a little while to find out what we learned it's because his former law firm was involved in the case . >> ..
the traditional conference is responsible for governing lower court judges and they expect the justice of the supreme court to oversee those lower conference judges both as designated supervisors and of the high court said to me i think it's just a poor idea to have the supervisors regulate the supervisors. >> i tend to agree. i yield back. thank you. >> the next recognize annulment from california mr. correa for five minutes. >> thank you mr. speaker my want to thank you for holding this important hearing today and i want to thank her witnesses for being here today. checks and balances on the government is so critical especially in these times when the executive and of course our legislative branch are having issues. a question to all of you about financial disclosure. i hear what you're saying with
policing. to my knowledge there's no financial disclosures right now on line by members of the supreme court. is that correct? >> i had to get them to jump through hoops. >> my thought is if the person has been in elected office for a number of years i do a lot of work to make sure i'm fully transparent and i go further than what is required by the law to make sure that i comply with every norm of the law when it comes to financial transparency. it guides me in terms of where i send my personal resources because i try to avoid conflict of
and my answer to that is -- >> for me it's already there. you just have a research person that can put this stuff out. you do post it publicly but to me the problem we are having this odd argument we are having because as a practical matter these things are posted on line. it's just they are being posted by him instead of by the court
so what is the privacy problem with having the court just do it they post the same things they give to him and i don't see if they carefully redact all sense of information and publish the stuff that needs that the public has a right to see them why on line? >> so i we are not missing anything. >> i don't think so. >> there were a number comments about how making publicly available reasons for recusal and some of the financial data could be manipulated or abuse by lawyers. two quick points. >> if it's a big case you do your own research. >> second if you get a judge recuse you cannot then picked the replacement judge and third rule 11 of the federal rules of court procedure provides the ability to sanction lawyers and
this would be a classic example of that. those things protect us. >> chairman nye would just like to nominate you to write that letter to the supreme court asking that they adopt rules of ethics and with that i yield the remainder of my time. thank you. >> i think the gentleman and with that are hearing today is concluded. thanks to our distinguished witnesses for appearing and testifying. the objection all members will have five legislative days to complete additional written questions for the witnesses for additional materials for the record. the hearing is adjourned.