tv House Judiciary Hearing on Ethics Accountability and Transparency CSPAN July 29, 2019 10:59am-12:37pm EDT
consumers using this product. we need to work together to make sure no underage consumers use this product. it's terrible for our business, terrible for public health, terrible for our reputation. none of this is good stuff. >> watch tonight on c-span, online at c-span.org or listen wherever you are with the free c-span radio app. a house subcommittee recently held a hearing to examine ethics and recusal laws in the federal courts and whether the supreme court should have a formal code of conduct. this is an hour and 35 minutes. subcommittee will come to order without objection the chair is authorized to declare a recess of the subcommittee at any time. we welcome everyone to this
morning's hearing on the federal judiciary in the 21st century for promoting, accountable, ethics and trips. i recognize myself for an opening statement. today we 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 an 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 quart felix frankfurter, quote, justice must satisfy the appearance of justice, end quote.
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, quote, both the appearance and reality of impartial justice are necessary to the public legitimacy of judicial pronouncements and thus the rule of law itself. end quote. i think that's why people are so surprised when they learn 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 with what it means to be a judge let alone a justice of the united states supreme court and that's why it's so concerning when a justice does something prohibited by the code of ethics they continue to follow and that every other judge does. that is why i was proud to introduce hr-1057 the supreme court ethics act which would require a code of ethics for the supreme court. i was also heartened to learn from justice kagan's recent testimony that the supreme court may also be discussing whether to adopt a code of ethics on its own. this would be a welcomed development and i hope that this hearing and the shove support for my bill will encourage this discussion to continue in earnest. i would 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 a case without anyone else reviewing their decision. the same basic concern rises when people learn when they think a lower court judge is too biassed to fairly decide their 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 -- 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're talking about the rule of law. and that means rules and laws, not outcomes or individuals. and that bring 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 courts solve these problems. also, i want to hear any concerns you might have, and i'm especially interested in your thoughts on the constitutional principles at play when congress establishes rules for judicial conduct and procedure. i hope you'll be willing to work with us as we move forward from this hearing. thank you. i look forward to your testimony. and it is now my pleasure to recognize the ranking member of the subcommittee, the gentle woman from alabama for her opening statement. >> thank you chairman johnson
and thank you to all of our distinguished witnesses for coming in to testify today. i've seen firsthand the importance of the judiciary and i'm proud to make sure the courts have the tools and resources to make sure they operate effectively. people all across the united states turn to federal court system to settle disputes and adjudicate cases in a fair and impartial manner. our courts deal with complex law to reach a decision based on the merits of the case and it's important that the public has trust in these judicial decisions. today's hearing is titled the federal judiciary in the 21st century. ideas for promoting ethic, accountability and transparency. specifically we'll discuss at this hearing a code of conduct for the supreme court justices posting justices and judges posting disclosure online and posting recusal notices and
reason for recusal online. congress should consider how we can work with the federal judiciary for greater trips and efficiency and i'm interested in hearing from our witnesses this morning. however, i have concerns with the positive 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 concerns 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 has been made in that effort. there have been concerns raised about posting judges financial disclosures online. with the high-profile and sometimes contentious decisions that judges must make there are unique safety and security concerns. i'm from alabama and i remember quite vividly when judge robert vance serving on the 11th circuit court of appeals was assassinated. these security concerns are not hypothetical and they are very real. judges face dangers from disgruntled former defendants and plaintiffs and we should act cautiously when making more personal information available that could be used to threaten the safety of judges and their loved ones. disclosures ever recusal explanation or a list of judges reasons raise concerns. judges may recuse themselves from cases for a variety of reasons many of which may be personal and disclosure could be used by future litigants to gain an advantage.
there's no requirement that members of congress explain why they abstained from voting and i think many of my colleagues would be opposed to such a requirement. we should fully examine what impact such a requirement might have. in closing while we should always look at ways to ensure that the courts are transparent, efficient and effective when adjudicating cases i have deep concerns with these proposed changes. i would caution that we should be sure to robustly screw at the n -- scrutinize any changes to our judicial system. i want to thank our witnesses for their time particularly on an early friday fly out morning for being here. so thank you very much, mr. chairman, and i yield back. >> thank you, congresswoman. i'm now pleased to recognize the chairman of the full committee, the judge from new york for his opening statement. >> thank you, mr. chairman for holding this important hearing
today. the federal judiciary is a pillar of our government. it's synonymous with upholding the rule of law. when congress is a co-equal branch conducts oversight of the courts with a hearing such as this one, it is with the following goal in mind. to promote and protect this vital institution in order to safe guard judicial independence and maintain public confidence in our courts. a federal judiciary is the envy of the world. congress has an interest in ensuring that this hard earned reputation is maintained. today's hearing is part of that process. as the hearing title suggests we're considering what is appropriate for a judiciary in the 21st century. now that we have squarely situated in the information age, in which we are accustomed to accessing practically any information with the click of a button we should ask whether there needs greater trips with respect to information regarding the federal judiciary. for example should we require
the judges financial disclosure forms which could indicate potential conflict of interest be more easily accessible. what sort of public disclosure should be made when a judge chooses not to recuse himself from case. these questions go the heart of ensuring the public's trust in the judiciary remains strong. similarly a key question for today's hearing is what if anything can the congress and courts do to enfor forforce eth conduct. what can we do every decision is transparentally made and fair. what can we do to make sure they are underable and accessible to the public. i'm glad to see there's bipartisan commitment for further action. last congress the judiciary committee passed bay voice vote the judiciary rule act which includeed a provision requiring the judicial conference to develop a code of conduct that would apply to all federal judges including justices of the
supreme court. this congress two hills hr-1 and hr 1057 introduced by my colleague chairman johnson includes an identical provision. it includeed a proigs requiring the supreme court to post a short online splangs when a justice recuses himself from a case. i'm interested to hear the views of our witnesses on that provision. i hope a future hearing will examine proposals as access to the courts such as the reform act or legislation to make court proceedings publicly accessible. identify introduced in prior years. i'm interested in seeing what can be done to strengthen the courts make no mistake, i respect the difficult and important job that all federal judges and justices perform every day.
reckless attacks on the integrity and legitimacy of judges and justices have become too common. physical threats have increased as well. we cannot ignore these real realities. as both houses decide how the judicial branch keep pace with accountability in a modern democracy we must be mindful of the safety of our judges. we have two branches to work at an appropriate approach. i hope we can continue that dialogue in light of the changing times. in the end i look forward to hear from all our switched witnesses. thank you again, mr. chairman. i yield back the balance of my time. >> thank you, congressman nadler. i now recognize the distinguished ranking member of
the full committee, the gentleman from georgia, represent collins for his opening statement. >> thank you. i appreciate that. i'm glad you're holding this hearing. i think it's important. i'm glad to have these witnesses on a friday morning. again, this is a subcommittee that's holding this hearing so congress can promote ethic, accountability and transparency in the federal judiciary. we ensure all americans have access to a fair access to judiciary resolve. in order to maintain trust courts must ensure they are transparent and accountable to litigants and the american people. while i support the idea that a supreme court should have its own code of conduct i have some concerns with the proposal that has been put forward by the
majority. many of these concerns are specific to the function of the supreme court as the highest court in the land. difficult questions remain such as who would administer the code applicable to the supreme court. it would mean lower court judges would be evaluating the conduct of justices. instead of imposing our will on the court i would like to work the chief justice. while increased transparency and availability of judges would be an improvement for judicial transparency, unique security concerns mostly, spoken by our ranking member is a concern that federal judges must be considered judges lives are constantly at risk. for those of us who have worked in the court system we see this more and more not only from the prosecutor's standpoint, the defense standpoint and judges. and for those of us who worked in the courts that becomes a family. we know each other, we work with
each other and this has become more and more of a concern that i want to make sure we consider that. while it's true members of congress and the president's financial disclosure is posted online. judges work with some of the most egregious offenders in our system. to put a judge at risk by a disgruntled litigant is very real and very concerning. it could result in the parties leveraging prior explanations to the benefit of a current client. proposed recusal requirements raise similar concerns. that's why we're here. that's why congress exists. this is why we have hearings. i'm glad you are all here and i'm glad we'll hear from those who statements have been forwarded to us. i look forward to this committee's work. i thank the chair, not only this subcommittee, but the subcommittee as well and the
full committee chairman and look forward to a wonderful hearing. i yield back. >> thank you, congressman collins. i will now introduce today's witnesses. professor 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 and jurisdiction and judicial ethics. she has numerous academic articles in such publications as the duke law journal and northwestern law review. her non-academic work has been featured in public jakes such as the atlantic and "new york times". before entering academia she clerked for a. raymond randolph on the u.s. court of appeals for the d.c. circuit and was a staff attorney at public citizen. she has both her b. a. and j.d.
from harvard and was a fulbright scholar. gabe roth 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 b. a. from washington university in st. louis, and an m.s. 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 is a fellow of denver's institute for the advancement of america's legal system. he is in his second term as a
public member of the administrative conference of the united states. 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 the united states supreme court. he has written extensively on the united states courts, including on judicial ethics. mr. wheeler has a ph.d. in political skooicience from the university of chicago and a b. a. from the college in illinois. welcome, sir. professor charles gardner geyh is the john f. kimberling university of law in bloomington, indiana. his writings on judicial conduct, conduct, selection,
independence, accountability and administration include more than 70 books, book chapters, articles, reports and other publications. prior to enter academia in 1991 he served as counsel to the house judiciary committee and administration. professor geyh has both his b. a. and j.d. from the university of wisconsin. welcome professor. welcome back home. now, we welcome all of our distinguished witnesses and thank them for participating in today's hearing. before proceeding with testimony, i here by 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 1001 which may result in
the point signatures 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 you summarize your testimony within five minutes. to help you stay within that time there's a timing light on your table. when the light switches from green to yellow you have one minute to conclude your testimony. when the light turns red it signals your five minutes have expired. professor frost, you may begin. >> thank you, chairman johnson. ranking member and members of the subcommittee. my name is amanda frost. 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 it's federal courts. the 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 wield 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 irreversib irreversible. for that reason it's 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're here to discuss today is not only to protect litigants and society from potentially biassed 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 gallop polls have shown that the public's confidence in the courts has decline over the last few decades. there are two changes to existing ethics rules and laws that could 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 which 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 admission of the -- the omission of the justices undermine the goal of these laws to protect the reputation of the
third branch of government. congress can and should change this. now, some people argue that there's no reason to expand these laws to apply to the justices because some justices have publicly stated that they follow the code of conduct. but voluntary complyians is photo equivalent to a mandatory ethics standard in the eyes of the public or the eyes of the justices themselves. we do not have to look far to find many specific examples of conduct by justices that violate specific provisions of the code. for instance, justice calia and clarence thomas have spoken at fundraising events stating a judge quote may not be a speaker, a guest of honor or featured on the program of a fundraiser. more recently, political
statements by justice ruth baden ginsburg criticizing president trump and statements by justice kavanaugh appear to violate several of the canons 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 that 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 recusal request to another judge on the court at least in some cases. both of these changes are well within congress' constitutional authority.
congress has already enacted myriad pieces of legislation regarding recusal and judicial administration as is appropriate under the necessary and proper clause of the constitution. as most justices themselves recognize the judiciary's reputation is essential to its institutional legitimacy, that is to the public's respect and willingness to abide by its decisions. the changes i have discussed would bolster the court's reputation and safeguard its integrity and thus will 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 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 a national nonpartisan organization that advocates for greater trips and accountability in our federal court. i want to be clear from the start. none of the measures we are calling for today on ethics recusals and disclosures would require a significant change in the way the courts conduct themselves. the supreme court already says it holds itself to a high ethical standard. here we're merely asking they write those towards down so we can see and understand them. every federal judge and justice already fills out a financial disclosure error each year which eventual is made available to the public. we are merely asking that they make them public on the internet. all judges and justices recuse themselves from petition and cases when appropriate and for particular reasons. all we're asking is for them to share with us the general category of conflict that cause them to conclude that a recusal was necessary. look, it's the summer. we're 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 already doing to ensure they are meeting the high ethical standards that the public wants to hold them to. now on to the proposals. first, on whether the supreme court should have a informational binding code of conduct. do i believe a conduct code would stop a justice from speak about a presidential candidate or accepting gifts, would it make him stop appearing at a fundraiser. maybe. that's as good as i can give you. maybe. that simply is better than trusting these murky practices that are not covered by the recusal statute will suddenly stop occurring. i present these examples not to single out any one justice but to demonstrate the high court's opinion may be final its members are not infallible. this mortality invadely acknowledged by other courts and other governments.
the top courts in every state is modeled after this. congress as you well know has an opposite ethics committee and official conduct, the executive branch has an office of government ethics and standards of ethical conduct. i want follows the supreme court should at least have an ethics code. second on whether annual financial disclosure should be posted online. congress and the executive branch permit a version of their disclosures posted online. primary sources should be posted by the primary source. current disclosure regulations state members of the public who wish to obtain a disclosure must check a box on their request form promising they won't use the information for any commercial purpose or to obtain
a lien against a judge. the judicial conference cites privacy concerns as the reason for opposition. i share these concerns. i'm happy that scotus is doing a top down security review and the fy-'20 budget has money to protect the judiciary. but we can find a way to balance privacy with the public's reasonable desire to know within a reasonable amount of time whether its judges or justices are trying to hide something like gifts. finally on why judges and justices recusal explanation should be made public. the exercise of pending a few words to a recusal notice would not only improve institutional accountability it would assist the justices to think about their conflict of interest. justice scalia, and chief justice robert should have
according to recusal statute should have disqualified them from hearing a case but did not. this practice should be resumed in a more direct manner by asking each judge or justice to refer back to the language of the recusal statute when announcing their recusal triggered by something like one's finances. chairman johnson, ranking member and members the subcommittee thank you again for the opportunity to testify. i'm honored to work with the subcommittee on proposals that would build a more open and accountable judiciary and i look forward to answering any questions you may have. >> thank you, mr. roth. you came in a little bit earlier than professor frost did. thank you. mr. wheeler. >> thank you, mr. chairman. ranking member. appreciate the chance to appear before you today. i have laid out my positions in my statement and i won't belabor
those in any great detail here but refer to you the statement. but in brief i believe the supreme court should have a code of conduct, if for no other reason than it's own self-interest but with deference, mr. 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 run counter, i think, to the statutory governance structure for the federal courts that congress has created. i have written and i believe that judges should explain their reasons for recusal on the record. for transparency. for appellate 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 skew recusal rather than reveal those
matters on record. i think there has to be 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 averse. i took note of the judiciary' reluctance until several years ago to post online so-called biden reports, reports of cases that have been delayed, motions that have been delayed and bench trials that have 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 its decision to provide disclosure statements on a case by case basis, appropriately redacted
for the particular request. finally, because i've been asked to comment on it, about the question of blind trust, whether judges should be required to put their holdings in a baseline trust is an idea well worth considering but it runs into the statutory mandate that judges keep themselves informed about their personal and fiduciary interest. some just is in order. i came to this subject as you indicated, mr. chair mapp, as deputy director of the federal judicial center, particularly in support of the work of the so-call so-call so-called breyer committee. and that the breyer committee produced a revamped and more aggressive administration of judicial conduct and disability
act. in that work, though, i became aware of the tensions involved in effecting effective judicial ethics policy. the code of conduct for u.s. judges tells judges and i think most properly so they would be upsect to restrictions on their behavior that the ordinary citizen would find burdensome and find those restrictions willingly. i agree with that. i also think those restrictions can't be so obtrusive as to discourage qualified individuals from accepting appointment to the federal bench, or 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 they are easy to resolve given the importantians of the values at stake, importance of judicial independence on one hand, judicial accountability on the other and other tension, other values that are incontention.
so these are not easy to bicyey balance. >> thank you very much. you came well under five minutes. thank you so much. professor geyh. >> thank you, mr. chairman. thank you, mr. chairman. i feel as though i should not speak at all and win the contest for being the briefest. it's a pleasure to appear before the subcommittee. i once served as counsel. i really do look back with a fair amount of pride at the extent to which this subcommittee worked together to produce bipartisan reform and i really believe that tissues before the subcommittee today are of the same sort that allows for that some the opportunity and i want to focus on that. i'll in some ways try to go off script because i want to begin by talking about why it's important to have a code of conduct for the supreme court but to the man and woman on your
side of the dais and here it's important to ask how do we get there from here. ideally the solution is the best bet is for the supreme court to adopt a code for itself. i think that is the optimal solution. however, bear in mind and i think it's fair to be skeptical because we now have 50 states all of which have supreme courts that adopted codes of conduct, lower courts adopted codes of conduct the only court that hasn't got to it is the supreme court. there's some value in keeping the pressure on them. to get them to promulgate their own code. at the back of it second best option in my judgment is for this body to pass legislation directing the supreme court to promulgate its own code of conduct. note that i do not favor the idea of having the judicial conference do it for the reasons that mr. wheeler and others have
suggested, but i do think directing the court to do it would be a perfectly fine and sound idea. the issue then is would that be constitutional? is there a concern with that? i think the answer is, to me, clearly yes. article i 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 provision authorizes congress to establish a supreme court that's fit for duty. if you look back to the very first congress, they did just that. in the judiciary act of 1789 it established a supreme court, determined its size, spelled out its duties and include a special oath a unique oath for all judges to take. to make sure they were committed to our democracy.
i'm referring to the oath. i do solemnly swear that i will administer justice without respect to persons and will do equal the right the poor and rich and faithfully impartially discharge and perform all the duties incumbent upon notice the best of my abilities agreeing to the constitution 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. if congress has the authority to require whys to take an oath to abide by ethical precepts, i don't know why they have the right to ask to elaborate. the judicial conference as i say has expressed concerns about it doing that. i'm with you on that. i'm on board with the notion that the judicial conference shouldn't be that body. courts develop their own codes of conduct.
second point that's at issue is financial disclosure. to me the core problem begins with in this day and age making information available to the public means make it available online. it's the way we do business in the 21st century. they cite 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 or the al 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 then post that on to the web. what i want to know what privacy concern is associated with cutting out the middle man and then them posting redacted information with all of the security and private information taken out and posted? to he me i think that's the issue and i think there's a way we can fix this. last point has to do with this
qualification reform. judges have an obligation to provide reasons for decisions they make and when they decide to disqualify themselves from hearing a case they are otherwise duty bound to hear the public has a right to know why. it's different than abstaining as a ledge the you're the because you're under no obligation no ethical duty to participate, to vote. the judges have an thiccal obligation to participate unless disqualified. i under the concern but my suggestion would be one thing with a report that mr. wheeler was responsible for writes, one possibility is to go with a check box approach which requires judges to identify the grounds for the statutory grounds for disqualifieration without going into the details, without elaborating. we can make this work. thank you. >> thank you, professor. three out of four ain't bad. >> i did my best. >> i appreciate it.
thank you. we'll now proceed under the five minute rule with questions. i'll begin which recognizing myself for five minutes. professors frost and geyh. it sounds like you are both quite confident congress has both the authority and obligation to regulate the federal judiciary's ethics and recusal practices. is that correct? >> yes. >> yes. >> what do you make of chief justice's suggestion to the contrary? >> could you explain? by that you mean his suggestions to the contrary that the congress doesn't have authority? >> correct. >> i interpret what the chief justice said it is an open question. in other words, we've never gotten to this, not that they don't have the authority. and to me you can read that two
ways. one is as a warning, you know, that don't go there because it may be unconstitutional. the other is that our system works because for 200 years, and the chief justice adds 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. it's not that it's a problem. for 50 wears the disqualification statute has been in place and no one has challenged it successfully or otherwise and i think that's what's going on. >> all right. thank you. professor? >> professor geyh said it elow consequently that one of the ways in which we test or determine the constitutionality of congress' action is to look at history. we can see that since the very first congress and the actions of the first congress are particularly informative when it comes to the constitutionality of congressional action that from the very beginning congress
thought hit the authority and took acsthon register late the courts. some intrusive decisions like size, quorum requirements, dates of its session and matters like the oath which professor geyh just mentioned. the history shows it's permissible. >> what message does it send that 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? >> well, the message it sends obviously is not a great one because i don't think -- part of what i care about here is not just the reality of impartial and fair justice but the public's perception of the court which i think -- somewhat at risk today for many reasons beyond the subject of this hearing. so i think it's unfortunate that the court has so far been reluctant to adopt a code of
conduct for itself. hearings like this i think are very valuable in pushing, hopefully the agenda of those nine justices to rethink that and there have been some suggestions by the court that it is now seriously conducting adopting a code. a message it has sent thus far is unfortunate bust i hope we're at a moment where it's reconsidering that position and adopt a code for itself. >> we're in an era where the legitimacy of the court is constantly questioned and the public's faith in the supreme court has eroded. is the kind of legislation we're discussing here today appropriate in this environment, mr. wheeler? is it appropriate that we're discussing this legislation? if you'll cut on your microphone. >> by all means. that's what congress is here for, as my colleagues have said. congress has been regulating the federal courts in various ways
since the founding. i think it can only contribute to a better understanding of what the federal courts are all about. i think that's a pretty obvious proposition. >> mr. roth do you believe that 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. faith in the court is something that is being discussed more and more and the idea -- you know it's something people don't realize when you talk about the supreme court, you think about certain opinions, certain historic opinions, what they are doing now. but when you tell them they don't have a binding code of conduct like the rest of the judiciary makes people think why is that? almost makes it seem like there's something fishy when there probably isn't. it's just that what every other court has done and the supreme court is a court and should do it as well.
>> thank you. so as to not violate my own five minute rule i'm going to yield back the balance of my time and call upon the ranking member, congresswoman roby for her yes, sir. >> this is for all of you and if you could be brief because we do only have five minutes. judges oversee case with the most egregious offenders in our criminal justice system and the u.s. marshal service said posting financial disclosures online would identify family, locations and other information making judges and justices vulnerable to attacks. so how can we appropriately mitigate the danger these disclosures might create? just go down the line, please. >> obviously the safety of our whys simplify paramount importance. redactions and working carefully with judges and coming up with a list of structures and guidelines for those redactions
would alleviate that problem. >> i tend to agree. you know, you can't be an organization that advocates for the transparency without being an organization that advocates for greater security. they go hand-in-hand with the u.s. supreme court police and u.s. marshal's office. there's a way to make sure justices safety is paramount. financial disclosure reports are constitutional and chief justice rehnquist said they are he is okay with them being posted online. maybe we have an opportunity via congress since it hasn't happened by the u.s. courts themselves to move it forward while balancing privacy. >> i don't have much to add to that. it is a question of balance. the judicial conference current position is that it releases financial disclosure statements on a case by case basis, doesn't release them electronically free of charge.
i think that's the proper policy. this is a tough question. if it were easy, we would have resolved it a long time ago. it is a difficult question, i acknowledge it, important for congress to work with the court for a sensible solution. professor geyh, before you answer, the marshal services stated all judges and justices would create a serious security risk so in your testimony i would ask you more specifically why should we not give deference to those security risks? >> we should give deference to security risks, my thing is it requires a follow-up question and a conversation. if we accept interest groups are currently requesting and they are, they are requesting disclosure statements and then publishing them online, this is already happening. and to what extent posting it, cutting out the middleman won't effect that. in other words, this is a redaction problem. redact all information that threatens privacy of judges.
and safety of judges. absolutely. but if you have to publicly disclose redacted stuff, i don't think it makes a difference whether the judicial conference posted it online or interest groups currently doing it request it, and post them online themselves. >> and then professor frost, would disclosure of potential conflicts that don't justify recusal encourage parties to file more affirmatifrivolous pa how would this impact already overcrowded dockets? >> well, of course, parties have incentives themselves not to file frivolous appeals regarding recusal. it is a sensitive topic. to file such a motion as a lawyer that appears regularly before the same judges, that's a difficult thing for a lawyer to do, i was a practicing lawyer many years, one hesitates to do it. there's already great incentive to file a motion to recuse. in terms of appeals, the cost
that the lawyer has to expend and the reputational hit strikes me as something that wouldn't be a big problem. if it is a frivolous appeal, it can be resolved quickly. be a big problem. if it's a truly frif reduce appeal it can be resolved quickly. >> judges and justices recusal explanations were publicly available. what safeguard exists to prevent forum shopping? >> i think that if you know, if you're a judge, well, you can't forum 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 is not -- if you have a judge who has a financial conflict, first of all, you may learn that in the annual financial disclosure reports when they come out, secondly, if you learn it in an early stage of the case, that's fine. i mean, that's the statute working.
>> i mean, there are no protections, particularly when you talk about lower court level. but i'm going to move on. similarly -- you cut me off? i'll come back for round two. thanks. >> thank you, madam. next we have five minutes of questioning from the chairman of full committee, congressman nadler from new york. >> thank you, mr. chairman. professor frost, how would you enforce code of ethics on the supreme court? >> that's a tough question. i guess i would say one step at a time. my first goal for the supreme court would be to have a code of ethics, because of its prominence and public attention, the justices get for daily
activities, i would hope one enforcement mechanism would be that they would buy into it, agree to it, they came up with it, signed onto it, it's now binding on that, they would follow it. if that doesn't happen, second line of defense is there's a great deal of public attention focused on those nine people and criticism would have more bite and go further if they were violating provisions of the code. now, the next step is should we have some enforcement mechanism like we do for the lower court judges with the judicial conduct and disabilities act? i am open to having that discussion. it is a complicated question. i would want us to be careful. i guess i would say, one step at a time. let's get a code in place first. >> can anybody else answer that question? >> about enforcement of the code? first, we have to understand the code itself is exasperational. i don't regard it as my good friend as amanda frost as binding, but to set up a disciplinary mechanism, i think is a cure worse than any disease
of occasional misconduct by courts. you could have a disciplinary mechanism in which people file complaints with justices themselves, then set up a mechanism to resolve the complaints as occurs with the judicial council under the judicial conduct and disability act in a body that's collegi collegiality is strained already. i don't think injecting that thing into the court makes a lot of sense. the alternative is to have lower court judges receive the complaints and there's potential for more mischief. sometimes a sanction on a judge that's found to have committed misconduct is relieve them of their case load for a while. you want lower court judges telling a supreme court justice to sit out a couple of cases? imagine the consequences of that. as i say, there are a lot of instances of supreme court justices engaging in questionable conduct. i've detailed them in my article and subject. to try to fix it with imposing that kind of mechanism seems to
be folly. >> thank you. professor frost, what signal would it send if the supreme court decided that congress can't pass laws regulating judicial ethics or procedure? >> i think that would be extremely troubling. i was troubled by chief justice roberts' 2011 report, i mean, in part because he was commenting on a legal issue that might come before him. in that report he suggested, he didn't state outright, but suggested there might be a constitutional problem should congress impose ethics legislation. i am hopeful now that perhaps on rethinking the issue and maybe in consultation with his colleagues they're moving to a different position, not that congress lacks 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 consequences be to the constitutional structure if the supreme court issued such a
ruling? >> well, there's been lots of fascinating examples in this nation's history of what i will call showdowns between the congress and courts. sometimes the courts back off, sometimes congress backs off. what typically happens is the american people in some way, shape or form decide through their views of the two institutions, and frankly if the supreme court were to issue such a self dealing opinion that said congress, which is supposed to under the constitution regulate us in all sorts of ways, lacks authority to keep us ethically within bounds, i would hope that in part the public reaction would be powerful and would affect the court. there are lots of examples and scholarship to show the court responds to public opinion. >> i know that. finally on this subject, for
professor frost and geyh, how do you see judicial ethics and reforms within the separation of powers doctrine. or did you answer that. >> i will make one point. i care normally about independence of the court. to use the term professor jay used, decisional independence. i would be very upset to see congress try to control 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 here. we're talking about regulating the court as an institution and that's appropriate and well within the bounds of what congress has always done. so i care very much about protecting separation of powers when it comes to decisional independence, and it is appropriate and within the constitution structure for congress to oversee the institution of the courts through such legislation as we have been discussing. >> thank you. >> thank you. we will now hear five minutes of questions from the gentleman from arizona, mr. biggs. >> thank you, mr. chairman. i appreciate all of you being
here, it has been very interesting. i want to go with what professor frost was just talking about because as you sit here and we're talking of the judiciary act of 1979, where we did -- congress set a precedent of getting in and basically setting up a court from very fine-tuning, administrative issues setting it up, you get to the point of separation of powers. we talk about this all the time anyway, at least in my group in congress we do. where do we set boundaries. what do you see as legitimate check on the independent judiciary from this branch? and that's all of you did -- be as brief as you can but as extensive as you can, knowing i might have some follow-up questions for you. >> well, i think the array is pretty significant, the 100 ton
gun is the power to impeach and remove judges. there's power over the budget to make sure they're not engaging in wasteful spending, there's power to establish lower courts by implication, disestablish lower courts, and regulate their operations fairly extensively, the practice, procedure. >> and jurisdiction. >> what? >> and their jurisdiction. >> yes. i mean, and their jurisdiction, yes. i think there's also power of necessary and proper power to make sure they have the framework necessary to create judicial conference of the united states, to create administrative office, create the federal judicial center where russell used to work. i think that's kind of the array. at the supreme court to manage its jurisdiction as well. >> one other thing, if that's the power of oversite, congress says the authority to oversee operation of the federal courts and should exercise it, good for the federal courts to have someone looking at their operations, that's important as well.
>> recent history bears that out. ethics and government act of 1978 applied to justices in terms of disclosure, reform act of 1989, every 20, 30 years there's been some form of judiciary act which in most cases applies to justices and lower court judges. >> i agree with everything my fellow panelists said. i want to add this shouldn't be viewed as diminishing or undermining the court, and that's one of congress's roles, to protect the courts. >> we talk about, it says specifically that justices shall hold offices during good behavior, not lifetime but good behavior. expand on what you have been talking about this morning on the authority of the legislative branch to basically monitor or check bad behavior. we just talked about some of that. but if you would -- we're taking this right into the ethics of
the supreme court justices in particular. >> i mean, i think there's the argument of being a gap between the high crimes and misdemeanors that are subject to removal for impeachment and less than good behavior that is subject potentially to regulation, and judicial conduct and disability act of 1980 tries to fill the gap by creating a disciplinary mechanism within the federal judiciary, which i think is deemed constitutional for reasons that mr. wheeler gave. i am on board with the notion, it is a bad idea to extend that to the supreme court, but i think that's middle ground that's open to regulation by the congress. >> mr. wheeler. >> i have nothing to add to that. yield back my time. >> all right. so we're good there. all right. i appreciate you being here and look forward to the rest of the
hearing. >> the gentleman yields back. we will now recognize the other gentleman from arizona, mr. stanton. >> all right, thank you very much, chairman johnson, thank you for holding this important hearing. thank you to the witnesses. i'm a new member of congress, and i am surprised and shocked there isn't a code of conduct for a united states supreme court to build confidence, public confidence in that incredibly important institution. we can do this and do it right, strike the necessary balances. this is a question for all witnesses, in caperton v massey, the supreme court recognized, quote, judicial integrity is a state interest of the highest order, and that judicial codes of conduct serve to maintain judiciary and rule of law unquote. how do we square statements with court's refusal to don't a code of contact for itself? professor frost, jump in first? >> maybe human nature seems to
play a role here. i think that is one of the interesting catch 22s of recusal where judges decide for themselves whether to recuse or supreme court that says we don't want a code of ethics but will follow one that exists that doesn't apply to us. i think it's very difficult for the justices to both live up to their highest ideals and also to avoid public criticism, some of it unfair for not following a code that was not designed for them. i'm going to reference professor geyh's testimony where he recognized justice scalia and thomas spoke at a fundraiser. that violates code of conduct chief roberts said we all follow. perhaps it was appropriate to speak at that fundraiser. i think that's an open question. i think it is 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 a code that was specific to those nine people and their preeminent role in our system of justice, they run the risk of violating a code that maybe isn't appropriate to them. i would rather see them come up with a code, obviously with a lot of public scrutiny and public participation to make sure its appropriate. that would have their highest ideals, best goals for how to behave, then having signed on to it, i would hope for the most part they would obey it. and if they didn't, we would have a lot of public discussion and controversy about why they didn't which would hopefully keep everyone in line. >> all right. any other witnesses. mr. roth? >> two quick points. one, talk about caperton, there -- it's part of what we call self-referential documents. certain opinions that don't reflect back on themselves. a case in missouri saying it is okay to term limit judges yet it is for life. nebraska press association allowing journalism and broadcast journalism courtrooms, yet don't allow camera or live oddey in the courtroom.
similar with caperton v. massey, how it is important how judicial ethics are. that means congress needs to step in, fill the gap, write a code for them since they clearly don't feel that interested doing it themselves. if they say they did, i don't know if we necessarily should trust that it will be a high-level code. >> the code is not just for benefit of the public to build confidence in the supreme court, it is also for protection of members of the supreme court themselves. mr. wheeler? >> i think that's the key point. 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. i think the court would -- it seems to me the court is its own self-interest to don't a code, put to rest all these arguments about why it doesn't have a code and exhibit a seriousness about this which we haven't seen. sometimes the justice -- i'm not
going to name names but sometimes justices have been asked about ethical regulations and sometimes the answers are wrong. i'm not going to say they don't know what they are talking about which isn't a sign of weakness but that they don't pay as much attention as they should. could put a lot to rest by adopting a code. not for me to tell the supreme court what to do, but that's my view of it. >> sadly, recent years, nominees of the supreme court for 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 interest that want to influence the senate confirmation progress. should congress do anything about that? professor in >> i completely agree the confirmation process is now deeply troubled and that it is time, 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 the justices and bad for the court. i very much hope that will change. >> what are your ideas? no time. next time. >> thank you. we will now hear five minutes from the gentleman from virginia, mr. klein. >> thank you, mr. chairman. i think it is because it is a fly out day, 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 successful operation of the courts. we need to encourage them, promote that. i also believe it is a resolved question here, but congress does have authority in article one, section 8 to regulate the courts.
i think that there's general unan imt -- unanymitn, the supreme court should operate under a code of conduct. the question is should it be -- if preferable to have imposed by the supreme court or should we seek to impose upon them, and what are unintended consequences of that. i think that leads us down a rabbit hole that professor frost spoke of that could potentially lead to greater constitutional crisis than not imposing one. i would ask witnesses for a yes or no answer. i think should the supreme court have a code of conduct, yes or no? >> yes. >> mr. roth? >> yes. >> mr. wheeler? >> of course, yes. >> yes. >> and yes or no, is it preferable for them to adopt their own code to us imposing one on them, yes or no. >> it is preferable for them to adopt their own code.
>> i think equally preferable. >> equally? >> yes. >> the court should adopt the code itself. that's the preferable course. >> i agree. they should adopt their own code. >> okay. i noted from professor frost's testimony in your overview, recusal laws apply to the court, ethics and government act of '78, dealing with income report supplies to the court, ethics reform act of '89 applies to the court, the judicial council reform and judicial conduct and disability act of 1980 does not. that deals with complaints and review of complaints. do you think that should apply to the court? and if so, who should be filing complaints, how should they be reviewed, and are you, again,
opening something that is going to have umbrella intended consequences and make the operation of the courts more challenging, more subject to partisan attack. professor frost? >> as i just answered, yes, there should be a code of conduct for the court. i explain it is preferable for the court to come up with one, if it won't, this body should. your question is what about a mechanism to investigate and sanction the justices, obviously short of impeachment which is something this body can do, and there i would say that i think mr. 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 nine of them do, in fact, informally discipline each other, in history looking back at history, we have seen examples of justices refusing to allow a particular justice who they think may no longer be of sound mind to be the sole deciding
vote on a case. the justices protect themselves and sanction themselves a bit. i think also as both congress' oversight and members of the public, we should all be vigilant, speak out and criticize the court when it is overstepped, 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 giving to the nine themselves ability to investigate complaints through something like the judicial conduct and disability act. i think that would be worse than the problem we're trying to solve. >> isn't giving the judicial council or conference the ability to create this code exact that, oversight and influence? >> so i think i agree with my fellow panelists who said 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 body at the last instance could be one to come up with a code. i hesitate to have the judicial conference idot, because it does not regulate the supreme court. it's made up of judges overseen by the supreme court. it, itself, has said it doesn't think that rule is appropriate. >> very quickly, should we allow citizens to file complaints against supreme court justices for violations? >> the semantics, should we allow citizens to say this is a code of conduct in place, this is in the future where i imagine a code, and a justice violated it, yes, that should be a very loud, very public conversation when that happens. >> thank you. >> the next questioner will be the gentleman from florida,
congressman deutch. five minutes. >> thank you, mr. chairman. thanks to witnesses for being here. the pinnacle of the judicial system, united states supreme court, doesn't have written court of ethics. only court within the judicial branch without a code of ethics, con founding that nine lifetime members have spoken about but have not drafted, enacted a code. professor frost, it is i think little consolation that they informally discipline each other from time to time. lower federal courts comply with conduct, every state court complies with code of ethics enacted by the state, modelled by the aba model code. i have got many significant concerns about lack of written judicial code of ethics for the supreme court, but it had a direct impact on confirmation process of the newest justice. i would like to explore that a bit. after judge cavanaugh was confirmed by the senate but before he was sworn in as justice, chief justice roberts
referred 15 complaints against judge cavanaugh to 10th circuit court of appeals, chief justice roberts instructed 10th circuit to review the complaints as the 10th circuit judicial council commenced its review, the 15 complaints grew to 82. then on december 18th, the 10th circuit judicial council determined it didn't have jurisdiction to review complaints due to judge cavanaugh being sworn in as justice on the supreme court. so i'm the chairman of the house ethics committee. we lose jurisdiction over members of this body, to enforce the 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, ethics laws are no longer binding on judges, once a judge is confirmed to a lifetime appointment of the united states
supreme court. it doesn't seem quite right. i think it is understandable that people would be puzzled by the situation that we find ourselves in, specifically this process for reviewing substantive ethics complaints against sitting judges, who ultimately are confirmed to become members of the supreme court. so that specific situation, i wonder if the witnesses have thoughts. yes? >> all the hearings applying the statute. the statute definition of judge to whom the act applies is a magistrate judge, bankruptcy judge, district judge, circuit judge, excludes supreme court. when the judge resigned his bench, second circuit judicial counsel lost jurisdiction, so too when cavanaugh was no longer judge of court of appeals. the statute lost jurisdiction over him.
you could amend the statute. >> what happened as a result? what happened to the investigation as a result? >> well, it died. it had no reason to exist. >> right. well, i would quibble with the suggestion it had no reason to exist. i mean, there was a serious reason for it to exist. my question is if the confirmation had been delayed by a year, how would that investigation have proceeded that's my question, under the existing law that applies to judges. >> up until the point he was confirmed and sworn in, well, just off the cuff, i guess all i can say is you have a messy situation on your hands, you have someone pending for confirmation and a judicial
council in denver evaluating his conduct during the confirmation hearing. i don't know what -- i'm not going to spell out what's going to happen. seems to me -- >> the judicial conference, 10th circuit kicked the complaint, kicked to judicial conference committee, they have several committees, they're still reviewing the complaints, that's still ongoing. i think overall, we want to be sure what the proposals we are doing today predate kavanaugh. they're not trying to single out any individual justice. you could go back 30 years and talk about ethical complaints. there are concerns. i think there are things we can do to change law. he shouldn't get $200,000 a year pension. that's well within congress. there are about a dozen justices that retired in ten years because of misconduct getting huge pensions. there's language could be inserted into law. as soon as you become a justice, that becomes a question, extra judicial question up to you guys. i don't see how you square the two.
>> thank you. we will now have five minutes of questions from the gentleman from pennsylvania. >> thank you. i appreciate it. i'm troubled by the recommendations. i was a magistrate judge, rather young, but disclosure of information is troubling. there was a district judge in pennsylvania who his father-in-law was killed because there was assassination attempt on the district judge. you're dealing with some bad individuals. you're sending people to jail. i think the disclosures are troubling. the recusal explanation is counterintuitive. as a judge, you only recuse for certain personal reasons. if you require a judge to say why he or she is recusing could have the unintended consequence of keeping the judge on the case, he or she might not want to say why they're recusing
themselves. i think there's unintended consequence that thwarts what you're trying to do, right, and forces a judge to -- puts a judge in uncomfortable position where they may -- otherwise wouldn't be in. i understand where you're coming from. i think it is not thought through. with that, i will yield to my colleague from alabama. >> thank you for yielding. i guess we're pushing up against votes called, maybe no round two. thank you. i am going to pick up where we left off. i was expressing concerns about forum shopping, and similarly, could public explanations for recusal result in attorneys abusing those explanations in an attempt to disqualify a judge they deem unfavorable? >> it is possible. i mean, to your example if you have an at&t versus smith in western district of texas, at&t is a big company, maybe they
want to sue the eastern district, i think that's already happening. in terms of trying to get judges off cases, the judicial conference put forth an opinion saying if you're an amicus and put this amicus on the record just to get a judge or justice off the case, you can't submit that amicus. i think there's -- look, this is an ongoing conversation. as lot of missed recusals recently, this is what we've come up with as a good response. i don't think that one law that's passed will be the end to the story. >> the reason i bring up these points, i think it is very important as we are having the discussion, these have to be as i said in opening statement very well thought out and discussed ideas. it is interesting to see all of the different perspectives represented here on each of these issues. i want to thank you all for being here. i want to point out another concern that was brought out in
a letter dated june 19, 2019, from the judicial conference signed by james duff. this is also a concern. we are adjudged to specify nature of every recusal explicitly, already mentioned multiple times about the security questions, but or by implication a disqualification is not related to financial conflict, the effect could be to expose personal information needlessly about the litigant and or prejudice the litigant before the judge's colleagues. i think that's also a very important point to make as well. i appreciate the gentleman yielding. i would like to, mr. chairman, enter into the record this letter. i ask for unanimous consent.
>> without a judge, so ordered. >> i yield back. >> thank you, i yield the remainder of my time. >> thank you. our next interrogator, the gentleman from tennessee, mr. cohen. five minutes. >> thank you. interrogator is not the right term. i came in late, i missed most of your earlier testimony. i would like to ask whoever wants to respond, have any of the justices said they were interested in doing their own? mr. roth? >> yes. at a hearing before the house appropriations subcommittee on financial services and general government, justice kagan reported that chief justice roberts was considering writing code for the judiciary, which is a positive step, but i would just counsel that given previous
activities, demonstrate future results, i think we would be in a different situation if congress were writing code. i would trust it more than from the judiciary itself. >> when was that? >> she mentioned that march this year. there hasn't been further information from the court since then. >> they have a lot of reskrixs or -- restrictions or requirements to give notice and limitations on moneys, mostly through congress and abide by them pretty much i guess, but don't file papers on the internet. is that right? >> that's right. i had to fill out a form which i have right here, by pen, have to fax it in, email it in, and within a few weeks, i'll get back those on a thumb drive. and then they're in a hard to read format, i changed format, and post them on fix the court.com. >> is the reason that the court considers long-standing judicial tradition important?
>> i think it is. it would be very easy for them -- i have been told there's metadata, personalizing information, there's not. make it a pdf, upload it. >> i want to say as we close, 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 pray and hope that he does the right thing at the right time to paraphrase dr. john when the cases come before him to save the republic. yield back the balance of my time. >> i thank the gentleman. we will now have five minutes from the gentleman from louisiana, congressman johnson. >> thank you very much, thank you for being here. i want to follow-up on a little bit of what a couple of my colleagues have pointed on, with regard to the general idea of separation of powers. i had a couple questions for mr. wheeler. based on your time on the briar committee and federal judicial center, how do you explain this
to a layman, to a nonlawyer that does the congress have the constitutional authority to force the supreme court to adopt a code of conduct? >> i probably want to yield to me colleagues, both of them teach constitutional law. on the face of it, it has authority to require the court to adopt a code of conduct, i think as a practical matter, would be better if the court did it on its own. can't add much to that. >> before you yield to the other scholars, let me ask you this. you cited in a written statement of 2011 year end report authored by chief justice john roberts, in that report justice roberts discussed constitutionality of congress creating a set of ethics for lower courts, but he made the point that it was per enumerated powers under article 3. i wonder if you can expand on concept of lower courts created by congress and some constitutional reasons why a code designed for lower courts may not necessarily apply to the
supreme court. >> what chief justice roberts said in the 2011 report was as the professor said, we really don't know whether congress has authority to impose these on the supreme court. it hasn't been tested. his basic argument was the constitution created the supreme court, puts it in a different posture than so-called lower courts created by congress pursuant to constitutional authorization. and that's where we left it. and scholars on both sides to examine whether or not that's a sound analysis. >> one more. in your testimony you stated that often reasons for recusal are fairly obvious, requiring reasons for all recusals could start judicial ethics regulation down a slippery slope because reasons could involve delicate personal matters. he was referencing some of that. what do you think would be the benefit of making a judge's personal matters public like that? i know there's a lot of concern about it.
>> i can't see any particular benefit making details of some sort of salacious interchange the judge or judge's spouse had. i can't see any benefit of that. one thing, this whole question of recusal is really being wrestled with is in the states, partly because of the conflicts created by judicial campaigning and financing. beyond that, i think the states, some of the states like texas are looking very seriously about recusal policies. i think it would behoove federal courts and congress to look at what states are doing, they're being creative and thoughtful in analysis of this whole matter. >> this is sort of a follow-up on that. i was a practicing attorney for 20 years, and seems to me that there would be a risk you could open a pandora's box if you make publicly available explanations for recusal. attorneys might abuse that. they might take explanations to attempt to disqualify a judge they deem unfavorable. you can see how that information
could be mostly sunny used misu. that's one of the concerns. >> no, that's one of the difficult questions of balancing, a couple of competing, valid interests. i'm on the record saying by and large, judges should state reasons for recusal. there are several reasons for transparency, for appellate review. i think there's a difficult matter, in the narrow range of personal and perhaps salacious material that judges may not want to reveal at the risk of not recusing when they should. >> also -- >> recently a judge refused a case, james hoe, there was up roar on the left, he's recusing -- no, his former -- it took a while to find out but we learned it was because his former law firm was involved in the case. it tamped down that partisanship. there's a positive, let's calm down, they're not abusing the system, we just don't know about it. certain elements among us will assume the worst. >> well said.
professor geyh, in your testimony you stated the subcommittee shouldn't pass legislation imposing code of ethics on its own, nor should we direct judicial conference to issued code of conduct applicable to the justices. why is that not the proper mechanism? >> the judicial conference is responsible for governing lower court judges, and they in effect, the justices of the supreme court oversee those judicial conference judges, both as designated supervisors of their circuits and as a high court. to me, i think it is a poor idea to have the supervisees regulate the ethics of the supervisors. >> i tend to agree. thank you. >> recognize mr. correa for five minutes. >> thank you, mr. chairman. i want to thank you for holding the most important hearing and want to thank witnesses for being here today. checks and balances, so darn
critical, especially in times the executive and, of course, our legislative branch are debating issues. question to all of you with reference to financial disclosure. i hear what you're saying with reference to self-policing. to my knowledge, there's no financial disclosures now online by members of the supreme court, is that correct? >> just the ones i put there myself. i had to get them to jump through hoops to get them. >> my thought is as a person that's been in elected office a number of years, i do a lot of work to make sure i am fully transparent. i even go further than what is required by law to make sure i comply with every nuance of the law when it comes to financial transparency. it guides me in terms of where i invest my personal resources because i try to avoid conflict of interest the best of my
ability. you said what's disclosed is what you put online. yet in campaigning, there's enough people doing op research out there that essentially know what every justice owns, what they do. to me the thought of, okay, it should be very simple and just self-police, i don't know who writes the letter or signs the letter to the supreme court saying write your own code of ethics, we have to figure that one out. number two, what's the down side to having full disclosure? having done it, there has to be a reason. it's very uncomfortable i know, but it should be done why? >> the reason that's been offered here is private information can jeopardize the judge's safety, and my answer is you have redactions. >> to me, it is already there. you just have an op research person that can put this out. >> maybe so. i understand where identifying relatives and family members of judges that could -- that you redact those, then you do post
it publicly. to me, the problem is we're having this odd, to me it is a rather odd argument we're having because as a practical matter, these things are posted online. it's just they are being posted by him instead of by the court. so why -- what's the privacy problem with having the court just do it? post the same things they give to him. and i don't see, if they carefully redact all sensitive information and just publish stuff that the public has a right to see, why online is it a problem i just don't get. >> so i'm not missing something? >> i don't think so. >> we're not missing anything. >> i want to add there are a number of comments about how making publicly available reasons for recusal and possibly some financial data could be manipulated or abused by lawyers practicing before judges or trying to select a judge. >> you can do that already.
>> yes. big case, you do your own op research. >> and second, even if you get a judge recused, you can't pick the replacement judge. third, rule 11 of federal rules of civil procedure provides an ability to sanction lawyers that take action for improper purposes. this would be a classic example of that. all those things i think protect. >> other comments? mr. chairman, i just would like to nominate you to write that letter to the supreme court asking that they adopt rules of ethics. with that, i yield the remainder of my time. thank you. >> thank the gentleman. with that, our hearing today is concluded. thanks to our distinguished witnesses for appearing and testifying. without objection, all members will have five legislative days to submit additional written questions for witnesses or additional materials for the record. the hearing is adjourned.
focuses on vietnam war starting with u.s. soldier moral from 1971 to 1973. other discussions include an all volunteer force after vietnam and u.s. policy changes after the war. watch american history tv tonight at 8:00 p.m. even on c-span3. >> tonight on the communicators, ohio representative bob latta, the ranking member on house energy commerce and subcommittee on technology talks about recent actions taken by the government with the tech industry. >> you think about 50 billion robocalls made every year into this country, it's going to hopefully provide relief to the american citizens out there. it's important because a lot of people say not in the district. it's one of the top issues
people contact me about and also the top issue that the fcc and ftc receive every year is about robocalls. >> watch the communicators tonight at 8:00 eastern on c-span2. in c-span's three presidential leadership surveys taken between 2000 and 2017 grover cleveland drox to 23rd place. ulysses grant makes the most dramatic rise from all the presidents, going from the 33rd to the 22nd spot. where does your favorite president rank? learn that and more about the lives and leadership skills of 44 chief executives in c-span's "the presidents." it's great vacation reading, available wherever books are sold or atmosphere c-span.org/thepresidents. coming up next on c-span3 a
hearing on legislation governing retransmission of broadcast television content by satellite tv companies. representatives from the national association of broadcasters, at&t, the cable industry, and the public interest group testified at this hearing held by house energy and subcommittee on communications. >> there we go. will now come to order. the chair recognizes himself for five minutes. good morning, i'd like to