Transcripts For CSPAN House Judiciary Hearing On Ethics Acco

The subcommittee will come to order. The chair is authorized to declare a recess at any time. We welcome everyone to this mornings hearing on the federal judiciary and the 21st centuryideas for promoting ethics, accountability and transparency. I will now recognize myself for an opening statement. Good morning and welcome. Today we begin the first in a series of hearings on the state of the federal judiciary in the 21st century. This hearing we will investigate ideas for promoting ethics, accountability, and transparency in the federal courts. We focus on these ideas and 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 quote former Supreme Court Justice Felix frankfurter, justice must satisfy the appearance of justice. Both rules embody the understanding that the constitutions implicit promise of equal justice under law depends on at least two things that our court must be fair, independent, and impartial, and that we must also believe that our courts are fair, independent, and impartial. Justice must satisfy the appearance of justice. It might take a second but we intuitively understand that. It means that, as the Supreme Court recently explained, both the appearance and reality of impartial justice are necessary to the public legitimacy of judicial pronouncements and thus , the rule of law itself. I think thats why people are so surprised when they learn that the Supreme Court isnt bound by a code of ethics, unlike nearly every other court in america. It doesnt fit with their understanding of what it means to be a judge let alone a justice of the United States Supreme Court. And thats why its so concerning when a justice does something prohibited by the code of ethics they dont follow and that every other judge does. Thats why im proud to introduce the Supreme Court ethics act, which would require a code of ethics for the Supreme Court. I was also heartened to learned from Justice Elena kagans 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 show of support for my bill will encourage this discussion to continue in earnest. Id like to turn to the second principle framing todays hearing, that no one can be a judge of their own case. Everyone understands this. Thats 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 arises when people think a lower court judge is to biased to decide their own case. The same judge is the one that decides whether he or she needs to step aside. The fact that judges dont normally explain these decisions doesnt make things any better. I think its clear that these problems arent i think its clear that these problems arent 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. Were talking about the rule of law. And that means rules and laws, not outcomes and individuals. And that brings us to you. This is a distinguished panel and i very much look forward to hearing your ideas on how congress and this subcommittee can help the courts solve these problems. Also want to hear any concerns you might have and im especially interested in your thoughts on the constitutional principles at play when congress establishes rules for judicial conduct and procedure. I hope youll be willing to work with us as we move forward from this hearing. Thank you, i hook forwardlook i look forward to your testimony. It is my pleasure to welcome the gentle woman from alabama for her opening statement. Thank you, chairman johnson, and thank you to all of our distinguished witnesses for coming to testify today. Ive seen first hand the importance of the judiciary, and im proud to be Ranking Member of this subcommittee to ensure that our courts are the structure, tools, and resources to operate efficiently and effectively. People turn to the federal court system to settle disputes and adjudicate cases in a fair and impartial manner. Our courts deal with intricate issues and complex law to reach a decision based on the merits of the case, and it is important that the public have trust in these judicial decisions. Todays hearing is titled the federal judiciary in the 21st century, ideas for promoting ethics, accountability and transparency. Specifically, were going to be discussing at this hearing a code of conduct for the Supreme Court justices, hosting judge and justices by Financial Disclosures online, and the posting of recusal notices in a reason for the recusal online. Congress should constantly be considering how we can work with the federal judiciary for Greater Transparency and efficiency and im interested in hearing from our witnesses this morning. However, i have concerns with the possible negative consequences from these proposals. Current proposals would require the judicial conference to create a code of conduct for federal judges and justices. This is both questionable and repetitive. Federal judges are covered by the judicial conferences 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 is 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 are concerns raised with posting judges Financial Disclosures online. With the high profile and sometimes contentious decisions that judges must make, there are unique safety and security concerns. Im from alabama and i remember quite vividly when judge robert vance serving on the court was assassinated. These security concerns are not hypothetical and they are very real. Judges face dangers from former defendants and plaintiffs and we should act cautiously when making more personal Information Available that can be used to threaten the safety of judges and their loved ones. Disclosures of explanations are a list of judges recusals also raises concerns. They may recuse themselves for a variety of reasons, many of which may be personal and disclosure can be used by future litigants to gain an advantage. Theres 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. In closing, while we should always look at ways that courts are transparent and effective when adjudicating cases, i have deep concerns with these proposed changes. I would caution that we should be sure to robustly scrutinize any legislative proposals for possible negative consequences and long term implications for our judicial system. I want to again thank our witnesses for time, particularly on an early flyout morning for being here. So thank you very much, mr. Chairman, and i yield back. Thank you, congresswoman. Im now pleased to recognize the chairman of the full committee, the gentleman from new york, mr. Latler, for his opening statement. Thank you, mr. Chairman, for holing this important hearing today. Federal judiciary and Institution Nearly synonymous with upholding the rule of law. When congress, as a cobranch , conducts oversight of the courts, the hearings such as this one, it is with the following goal in mind, promote and protect the Vital Institution in order to safeguard Judicial Independence and maintain Public Confidence in our courts. Our federal judiciary is the envy of the world and congress is interested in ensuring this reputation is maintained. Todays hearing is part of that process. As the hearing title suggests, we are considering why it is important for a judiciary in the 21st century now that were 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 to be Greater Transparency with respect to information regarding the federal judiciary. For example, should we require the judges Financial Disclosure forms, which could indicate potential conflicts of interest, be more easily accessible . What sort of Public Disclosure should be made when a judge chooses not to recuse him or her or herself from a case . These go to the juicediciary and remain strong. What, if anything in congress and courts, do to reinforce the judiciarys committeement to ethical conduct . What can we do to ensure that every judge and every courts decision regarding ethics and recusal are transparently made and proerlly fair . What can we do to make sure those decisions are understandable and accessible to the public . On this front, im glad to say there seems to be some bipartisan commitment for further action. It passed by a voice vote which included the Provision Requiring the judicial conference to develop a code of conduct that would apply to all federal judges, including justices of the Supreme Court. T was two bills hr 1 before the people act and hr 1057, the Supreme Court ethics act of 2019 introduced by my colleague chairman johnson includes an identical provision. The room act also included the Provision Requiring the Supreme Court to post a short online explanation when the justice recuse is him or herself from the case. Im interested to hear on that provision. I hope the future hearing will examine proposals to increase Public Access to the courts, such as the electronic courts records reform act, or legislation to make Court Proceedings publicly accessible by live or same day audio or video along the lines of the act, which iourt have introduced in prior years. Im interested in seeing what can be done to strengthen the courts, make no mistake, i respect the difficult job they perform every day. Physical threats against federal judges and other Court Officers have dramatically increased, as well. We cannot ignore these realities. As both branches consider how to ensure that the Judicial Branch keeps pace with our evolving standards for transparency and accountability in a modern democracy, we must be minding if mindful of the safety of our judges and the women and men who assist the courts in fulfilling their responsibilities. I hope we can continue that dialogue in light of the changing times. To that end, i look forward to hearing from all of our distinguished witnesses on the important topics. Thank you again, mr. Chairman. I yield back the balance of my time. Thank you, congressman. I now recognize the distinguished Ranking Member of the full committee, the gentleman from georgia, representative collins, for his opening statement. Thank you. Thank you, mr. Chairman. Im glad to have the witnesses here on a friday morning. What a way to start the weekend. I get a smile from most of you there. Again, this is a subcommittee thats holding is here so congress can promote ethics, accountability and transparency in the federal judiciary. They serve a lot of roles in the United States by ensuring that all americans have an impartial system of justice. They held itself to the highest standards of legal profession, which is enabled it to serve as a pillar of our democracy. In doing so, it built the level of Institutional Trust that is viable for it to continue and be arbitor in the bitter disputes. In order to maintain that trust, courts must ensure that theyre transparent and accountable to litigants and the American People. I generally support the idea that a Supreme Court should have its own code of conduct, i have concerns with the proposals that has been put forward by the majority. Many of the concerns are specific to the function of the Supreme Court as the highest court in the land. Difficult questions remain, such as who will administer the code. Having the judicial conference would mean Lower Court Judges will be evaluated to the conduct. Instead of imposing our will on the court, i would like to work with the chief justice to adapt adopt a code of conduct that is the reality of a Supreme Court justice and maintaining public accountability. While increased transparency and availability will certainly be an improvement for transparency, the unique security concerns mostly spoke of eloquently by our Ranking Member on this a moment ago, is a concern that federal judges must be considered. Judges lives are constantly at risk. For those of us that worked in the court system, we see this more and more, not only from the prosecutor standpoint, but the defense standpoint and the judges. For those that work in the course, that becomes a family. We know each other, we work with each other. This has become more and more a concern and i want to make sure we consider that as we go forward. While its true members of congress and the Financial Disclosure are posted online, federal judges face different risks. They work in close proximity to the most egregious defenders in our system. We put them at risk and put a judge at risk or family by disdisgruntled litigant is very real and very concerning. A could also have serious unintended consequences. It could be the benefit of a current client. Recusal requirements raise similar constitutional concerns. But thats why were here. Thats request congress exists. Thats why we have hearings and this is something for us to bring to the table. And im glad youre all here and im glad that your statements well hear from theenz the from those statements that are already forwarded to us. But i look forward to this work. I look forward to this committees work and thank the chair, not only this subcommittee, but the ranking the committee as well and the full Committee Chair as well and look forward to a wonderful hearing. And i yield back. Thank you, congressman collins. I will now introduce the 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 courts and jurisdiction, and judicial ethics. She has written numerous academic articles in the duke law journal and northwestern law review. Her nonacademic work is featured in publications such as the atlantic and the new york times. Provide fessor frost before entering academia, professor frost clerked for 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 ba and jd from harvard and was a full bright scholar. Welcome. Kate roth is the executive fix the court, a Nonpartisan Organization solely focused on modernizing the federal judiciary. Originally from nashville, tennessee, mr. Roth began his career as a producer at the nbc affiliate in jacksonville, florida. He has a ba from Washington University in st. Louis, and an ms in journalism from northwestern university. Welcome, sir. Russell wheeler is a fellow from the governance Study Program and president of the governance institute. He is also an adjunct professor at American Universitys Washington College of law, and is a fellow of the university of denvers institute for the advancement of the american 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 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 phd in Political Science from the university of chicago and a ba from the august on a college in illinois. Welcome, sir. Professor Charles Gardiner jay is the john of kimberling professor of law at the Indiana University school of law in bloomington, indiana. His writings on judicial conduct , ethics selection, independence, accountability