As SCOTUS Ducks Ethics Questions, Whitehouse Calls for Update on Personal Hospitality Rules for Federal Judges

Washington, DC – With the Supreme Court ducking questions about a series of ethical scandals, U.S. Senator Sheldon Whitehouse (D-RI), Chairman of the Senate Judiciary Courts Subcommittee, today shone a spotlight on the ethics and transparency rules with which all federal judges must comply.  In a new letter to the Administrative Office of the Courts, the agency within the judicial branch that issues ethical guidance, Whitehouse requested an update on pending questions related to the personal hospitality exemption for federal judges.

“Transparency is critical at all levels of government, and the courts are no exception.  If we don’t know who’s providing judges with gifts and hospitality, it becomes difficult for the public to trust that courts will treat people fairly and decide matters impartially,” said Whitehouse.  “The Judicial Conference has said it would at least look at these questions, and I hope it will act to make sure that all judges—including Supreme Court justices—play by the same rules as other government officials.”

Supreme Court Chief Justice John Roberts chairs the Judicial Conference of the United States, which oversees the Administrative Office of the Courts. 

The Ethics in Government Act of 1978 requires certain government officials, including judges and justices, to complete financial disclosures each year.  The Act includes limited exceptions to these disclosures, and allows each branch to define those exemptions more completely.  The judiciary has adopted significantly less stringent financial disclosure requirements than other branches of government, and has failed to make information on judicial branch disclosures readily available to the public.  As a result, the nation’s highest judicial officers are subject to the lowest standards of transparency of any senior officials across the federal government.

Whitehouse has worked across the aisle to illuminate this problem, and has written repeatedly to both the Supreme Court and Administrative Office of the U.S. Courts on the issue.  Notably, after the Supreme Court failed to recognize or acknowledge that there was any problem, the Administrative Office conceded there was one, referring the matter for further official consideration within the judiciary.  Whitehouse’s correspondence is below:

• Letter from Whitehouse and Senator Lindsey Graham (R-SC) to the Supreme Court (February 4, 2021).  The letter states, “A legislative solution may be in order to bring the judiciary’s financial disclosure requirements in line with other branches of government if the Court does not address” its lax gift, travel, and “personal hospitality” requirements.  The letter asked the Court to answer five questions, including its interpretation of “personal hospitality” for justices and judges and “[w]hat plans, if any” the Court has to adopt a code of conduct.  [FULL LETTER]
• Letter from Supreme Court Legal Office to Whitehouse and Graham (July 12, 2021).  The Supreme Court’s Legal Counsel responded to Whitehouse and Graham’s February 4, 2021 letter to say that the justices “comply with the same restrictions on gifts and outside activities that are applicable to the rest of the judiciary.”  The Legal Counsel also responded that the Justices “rely upon” the lower courts’ Code of Conduct “in evaluating ethical issues more broadly.”  The counsel failed to point to a binding, enforceable standard for Supreme Court justices, and gave no indication that the Court plans to adopt one.  [FULL LETTER]
• Letter from Whitehouse to Courts of Appeals Chief Judges, the Administrative Office of the U.S. Courts, and the Judicial Conference’s Committee on Code of Conduct (August 30, 2021).  The letter asked each recipient to answer how the judiciary would assess a judge’s duty to disclose under the “personal hospitality” exception in various hypotheticals.  Whitehouse for months received no response from any Circuit.  [FULL LETTER]
• Letter from Whitehouse and Johnson to Courts of Appeals Chief Judges, the Administrative Office of the U.S. Courts, and the Judicial Conference’s Committee on Code of Conduct (April 18, 2022).  The letter, joined this time by Representative Johnson, noted that the members did not receive any reply to their August 30, 2021 letter, and repeated their requests from that letter.  [FULL LETTER]
• Letter from the Administrative Office of the U.S. Courts to Whitehouse and Johnson (April 29, 2022).  The Administrative Office acknowledged that no specific guidance exists in response to many of the members’ hypotheticals on “personal hospitality,” and referred the matter to the federal courts’ Committee on Financial Disclosure.  [FULL LETTER]

Full text of the Senator’s new letter is below.  A PDF is available here.

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Hon. Roslynn R. Mauskopf

Director

Administrative Office of the United States Courts

One Columbus Circle, NE

Washington, D.C.  20544

Dear Judge Mauskopf:

I write to inquire about the status of the Committee on Financial Disclosure’s consideration of questions related to the federal judiciary’s interpretation of the Ethics in Government Act’s “personal hospitality” exemption.  Last year, you informed me that you had referred these questions to the Committee on Financial Disclosure in response to questions I raised about the potential for abuse of this exemption.

In your April 29, 2022, letter to me you stated that you had asked the Committee on Financial Disclosure to provide guidance on two questions in particular.  Those questions are “whether ‘personal hospitality’ may encompass hospitality extended at a commercial property such as a resort,” and whether a gift of hospitality would fall outside of the personal hospitality exemption “[i]f a third party reimburses the host for the costs” of the hospitality.”^[1]  Given the significant time that has elapsed since your referral, I would appreciate an update on the Committee on Financial Disclosure’s consideration of these matters. 

I would also urge the Committee on Financial Disclosure to clarify that the “personal” nature of “personal hospitality” is not determined by the invitation being delivered personally, but by the personal nature of the judge’s relationship with the host.  I understand the Committee to have already clarified this distinction in the standard for determining whether certain gifts must be disclosed even when not expressly required by the rule—specifically, in situations where “both the basis of the relationship between the grantor and the grantee and the motivation behind the gift are personal.”^[2]  This standard also applies to the solicitation and acceptance of hospitality under the Ethics in Government Act’s Gift Regulations.^[3]  If I understand this correctly, it should be easy to clarify that it is the personal nature of the relationship not the “personal” nature of the invitation that permits the “personal hospitality” exemption.

Additionally, as you know, the Committee on Codes of Conduct is authorized “to render advisory opinions about” the Code of Conduct for United States Judges “when requested by a judge to whom [that] Code applies.”^[4]  The Committee is authorized “to publish formal advisory opinions on ethical issues that are frequently raised or have broad application.”^[5]  The opinions published by the Committee refer to additional, unpublished opinions that may be relevant to these questions about the personal hospitality exemption.  I therefore request that the Committee on Codes of Conduct provide any additional, undisclosed advisory opinions that are relevant to the personal hospitality exemption, redacted as appropriate to protect any sensitive or personal information within those opinions.

Meaghan McCabe, (202) 224-2921