I’ll first veer from my prepared opening statement to report that today is a hell of a day to be considering ethics questions around the Supreme Court, and particularly the spectacular level of right-wing influence that seems to be the tendency of the Supreme Court since the Federalist Society has taken control of Republican judicial nominations.
We do not know yet whether Justice Alito’s leaked decision is going to be the decision of the Court or not, but as of the moment of this hearing, there has been no disavowal by anyone, so it appears that this precedent is being thrown into the bin, like so many other precedents that displease the right-wing donor base that had such an important role in getting these justices on the Court.
The overlay between that problem of right-wing donor influence on the Court and the dark-money morass that surrounds it has a pretty significant overlay with the ethics questions that we will address here, and which have caused the American public to have a growing – and increasingly warranted – perception that special interests have taken undue control over our courts.
We all know that courts derive their power from public confidence. They don’t have armies. They don’t have budgets. We trust judges with the judicial power in the faith that they will not abuse it, that they will treat people fairly and decide matters impartially – not to preconceived ends pressed on them by special interests.
Well, it’s not going well. In its most recent poll on the subject, Gallup registered the Supreme Court’s lowest approval rating ever – a collapse of confidence that coincides with failures of transparency and accountability at the Court – conspicuous failures in the areas of gifts and hospitality disclosure, recusal, and identification of amici curiae.
The fact that so many justices were selected – and their confirmations campaigned for – by dark-money organizations exacerbates the danger. And the win rate of certain political interests in partisan decisions defies statistical explanation.
My counterpart in the House, Representative Hank Johnson, Senator Blumenthal and I introduced the 21st Century Courts Act last month. It will close loopholes and make sure that the judiciary’s ethics rules meet the same standard as Congress and the executive branch. The 21st Century Courts Act is the culmination of work that our offices have done over many years.
Our concern takes on new urgency in light of a recent incident that has accelerated the public’s loss of confidence. Last month, we learned of a Supreme Court Justice’s failure to recuse himself in a matter where his wife had texted with Donald Trump’s chief of staff about strategies to overturn the presidential election. A congressional committee investigating the January 6 attack on our Capitol requested records of communications with the Trump White House; Donald Trump sued to block those records from being turned over; and he asked the Supreme Court to review the challenge. The committee’s inquiry could have revealed the Justice’s wife’s texts, yet he failed to recuse himself.
This was not an isolated recusal problem. Last April, three Supreme Court justices refused to recuse themselves in a case brought by the organizational alter ego of a group that had spent millions of dollars to get the three justices confirmed – a group that called one its efforts a “Full Scale Campaign” to get the justice confirmed. Caperton v. Massey acknowledges that these kinds of campaigns can create at least the appearance of bias. But not only did the justices not recuse, none even deigned to explain.
It’s not just these recusal examples that are the problem. The Court’s practice under its “personal hospitality” rules is peculiar and problematic. Last August, I asked for an explanation from all the circuit courts of their interpretation of the personal hospitality exemption, and whether it aligned with what the Supreme Court was telling us. It took the Administrative Office until last Friday to respond and admit that no clear guidance exists for the courts on these questions, in contrast to the rules that govern Congress and the Executive Branch.
Amicus groups show up in orchestrated flotillas without disclosing who is behind them, and they enjoy a statistically peculiar rate of success in getting their way. The Judicial Conference is actually at work on amicus transparency to, as one judge said, identify the “power behind the throne” of these front-group amicus filings.
An overarching problem is that on these ethics questions, each justice is judge in his or her own cause, without review, transparency, or accountability, and with no place where complaints can go to be addressed. Awkward ethics questions can be simply ignored. One example makes this problem undeniably clear: actual, ongoing ethics investigations into Judge Kavanaugh were dropped when he became Justice Kavanaugh, simply because his ascension to the Supreme Court set him beyond the reach of the ethics rules and procedures applicable to all other federal judges under which he was being investigated. The highest Court has the lowest standards, indeed only the standards which each justice in their unreviewable caprice chooses to impose on themselves.
The biggest thing we could do is likely to pass my DISCLOSE Act, which would make transparent the big money, the big dark money in particular, that is now being spent anonymously to get justices confirmed. It seems to me essential, when someone is spending millions of dollars on judicial confirmations to influence the makeup of the Court, to understand what business they may have before the Court.
The Court’s reluctance to treat any of these issues seriously puts us in the position of having to act legislatively. To be clear: we need to root out problems with our judiciary’s ethics practices so that we can protect the public’s trust in our federal courts. We need to update the laws and practices regarding recusal; we need safeguards to protect against the dark-money influence that now enmires the federal judiciary; we need rules for disclosure of who’s behind front-group amici; and we need a binding Code of Conduct for the Supreme Court – the only court in the country that doesn’t have one.
Justices say they can handle these problems themselves. We may hear more of that today. But they’ve had plenty of time – and plenty of cause – and they simply have not. So today, we consider what Congress can do to address those ethics issues and assure that the Court’s rules and practices merit the confidence and trust of the American people.
Rich Davidson (202) 228-6291 (press office)
