Transcripts For CSPAN2 House Judiciary Hearing On Ethics Acc

Would begin the first in a series of hearings on the state of the federal judiciary in the 21st century. In this hearing we will investigate ideas for promoting ethics, accountability, and transparency in the federal courts. We focus on these ideas in our first hearing on the judiciary because they flow from two foundational principles of due process. First that no one can be a judge in his own case. Second, to form a Supreme Court Justice Felix frankfurter , justice must satisfy the appearance of justice. Justice must satisfy the appearance of justice. Both rules embody the understanding that the 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 learned that the Supreme Court isnt bound by a code of ethics unlike nearly every other court in america. It just doesnt fit with their understanding of what it means to be a judge let alone a justice of the United States Supreme Court. 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 i was proud to introduce hr 1057 the Supreme Court ethics act which would require a code of ethics floor at the Supreme Court. I was also heartened to learn from Justice Eleanor Kagan recent testimony that the Supreme Court may also be discussing whether to adopt a code of ethics on its own. This would be a Welcome Development and i hope that this hearing and the show support for my bill will encourage this discussion to continue in earnest. 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 the case without anyone else reviewing their decision. The same basic concern arises when people learn that if they think a Lower Court Judges too biased to fairly decide the case that same judge is the one who decides whether he or she needs to step aside. The fact that judges dont normally explain these decisions doesnt make things any better. 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. We are talking about the rule of law. That means rules and laws, not outcomes or individuals. That brings us to you, this is a distinguished panel and i very much look forward to hearing your ideas on how congress and this subcommittee can help the court solve these problems. I also want to hear any concerns you might have and i am especially interested in your thoughts on the constitutional principles at play when congress establishes rules for judicial conduct and procedure. I hope you will be willing to work with us as we move forward from this hearing. Thank you and i look forward to your testimony. It is now my pleasure to recognize the Ranking Member of the subcommittee. The gentleman from alabama mississippi. Thank you to all of our distinguished witnesses to come saturday. Ive seen firsthand the importance of the judiciary and im proud of the subcommittee will help ensure the structure tools and resources to efficiently and effectively. People all across the United States turned to the federal court system to settle disputes and adjudicate cases fair and impartial manner. Our courts deal with intricate issues and complex law to reach a decision based on the merits of the case and its important that the Public Interest is judicial decisions today is titled the federal judiciary in the 21st century. Ideas for promoting accountability and transparency specifically we will be testing the code of conduct for the Supreme Court justices posting judge injustices by Financial Disclosures online posting of recusal notices and a reason for the recusal online. Congress should constantly be considering how we can work with the federal judiciary to Greater Transparency and efficiency and am interested in hearing our witnesses this morning. However, i have concerns with the possible negative consequences from these proposals. Current proposals would require the judicial conference to create a code of conduct for federal judges and justices. This is both questionable and repetitive. Federal judges are currently already covered by the judicial 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 concerned that requiring a code of conduct for the Supreme Court would be unconstitutional. I also understand that chief Justice Roberts is working on a code of conduct for the Supreme Court justices and would like to learn more about the progress thats been made in that effort. There have been concerns raised with posting judges Financial Disclosure aligned with the high profile and sometimes contentious decisions that judges might make the safety and security concerns. Im from alabama and i remember quite vividly when judge robert dan serving on the 11th Circuit Court of appeals was assassinated. The security concerns are not hypothetical and they are very real. Judges face the dangers from the disgruntled former defendants and plaintiffs in which it cautiously when making more personal Information Available that can be used for safety of judges. Disclosures of recusal explanations are listed judges recusal also raised concern. That is cases for a variety of reasons. Many of which might be personal and disclosure could be used by future to gain an advantage. There is no requirement that members of congress explain why they exchange from voting and i think many colleagues would be opposed to such as recent see what impact such a requirement might have. In closing, we should always look at ways to ensure the courts are transparent efficient and effective when adjudicating cases the concerns with these proposed changes. I would caution that we should be sure to robustly scrutinize any legislative proposals for possible negative consequences and longterm implications for our judicial system. I want to thank our witnesses for their time particularly on an early friday file morning for being here. Thank you very much mr. Chairman, i yield back. Thank you congresswoman. Im pleased to recognize the chairman of the full committee the gentleman from new york, mr. Nadler, for his Opening Statement. Thank you mr. Chairman for holding this important hearing today. The federal judiciarys pillar of the initial Government Institution nearly synonymous of upholding the rule of law. When congress is a coequal branch conducts oversight of the court with hearing such as this one is with the following goal in mind. To promote and protect this institution in order to save Judicial Independence and maintain public in our courts. The federal judiciary is the envy of the world. Ensuring this harder is maintained. Todays hearing is a part of this process. It suggests we are entire books appropriate for judiciary in the 21st century. Now that we are squarely situated in the Information Age in which we are accustomed to accessing practically any information the click of a button we should ask whether there needs to be Greater Transparency with respect to information regarding the federal judiciary. For example, should we require that judges Financial Disclosure forms which could indicate potential conflicts of interest were usually accessible. Public disclosures be made when the judge chooses not to recuse him or herself from a case ensuring that the Publics Trust in judiciary remains strong. A key question for todays hearing is what is in anything abwhat can we do to ensure that every judge and every courts decisions regarding ethics and recusal are transparently made procedurally fair. What can we do to make sure those decisions are understandable and accessible to the public. Im glad to say there seems to be bipartisan commitment to a further action. Last congress in Judiciary Committee passed by voice note judiciary room act which included Provision Requiring judicial conference and develop a code of conduct that would apply to all federal judges. Including justices of the Supreme Court. This congress to bills hr 1 before the people act in hr 1057 the Supreme Court ethics act of 2019 introduced by my colleague chairman johnson includes an identical provision. The room act also included the Provision Requiring the Supreme Court to post a short online explanation with justice rick uses her or himself the case. Im interested to hear the use of the witnesses on that provision. The future hearing will examine proposals to increase Public Access to the courts such as the electronic courts record three format drinking member colleges introduced legislation to make Court Proceedings publicly accessible by live or sameday audio or video along the lines of the court act which of introduced in prior years. What im interested in seeing what can be done to strengthen the court make no mistake i respect the difficult and important job that all federal judges and justices perform every day. Reckless sustained attacks on the integrity and legally seal individual justices and judges have become all too common. Physical threats against federal judges and other Court Offices are dramatically increased. We cannot ignore these realities. As both branches considered Judicial Branch keeps pace with evolving standards of transparency and accountability in a modern democracy. We must be mindful of the safety of our judges and the women and men who assist the courts in fulfilling their responsibilities. It started we had to branches that Work Together to try to arrive at an appropriate approach to the difficult issue of balancing transparency and other concerns such as safety. I hope we can continue that dialogue in light of the changing times. To that end i look forward to hearing from our distinguished witnesses on these important topics. Thank you again mr. Chairman, i yield back. Thank you congressman nadler. I now recognize the distinguished Ranking Member of the full committee the gentleman from georgia representative collins for his Opening Statement. Thank you mr. Chairman. Im glad you are holding this hearing i think its a great time im glad to have the witnesses here on a friday morning. What a way to start the weekend. This is a subcommittee holding the committee so congress can promote ethics, transparency. The federal judiciary is held itself to the high standards of the Legal Profession which is enabled for democracy. Its built a level of Institutional Trust to continue and control in the arbitrary and some of the most bitter disputes in order to maintain that trust words must ensure they are transparent and accountable to the American People. While i generally support the idea the Supreme Court should have its own code of conduct i have concerns with the proposals that have been performed by the majority. Many concerns are specific to the function of the Supreme Court in the highest court in the land difficult questions remain such as who would administer the code and endorsing the code of congress would mean lower in instead of imposing i would like to work with the chief justice to adopt the code of conduct if the counselor 3d realities of being is getting a bit accountability. Our dancing and availability of judges financial closure would certainly be an improvement unique and security concerns mostly spoke up especially eloquently fire Ranking Member. Federal judges must be considered larger cost to hariston for those of us who have worked in the court system is more and more not only from the prosecutor standpoint the defense standpoint and the judges and for those of us who work in the courts they became families is that we know each other we work with each other and this has become more and more concerned and i want to make sure we consider that as we go forward. Federal judges for lists. They work in close proximity some of the most egregious defenders of our criminal Justice System. The potential to put the judge at risk for the family by very real and very concerning. The Public Disclosure which the justices recusal explanation also intending consequences that can result of the parties leveraging their explanations benefit of current decline will show thats why we are here, thats why cant exist in after we have hearing. This is something for us to bring to the table and im glad you all were here and we will hear those statements. I look forward to the committees work and what i think the chairman not only the subcommittee but the Ranking Committee of subcommittee as well but the full Committee Chairman as well. I look forward to a wonderful hearing. I yield the floor. Thank you congressman collins. I will now introduce todays witnesses. Amanda frost is a professor of law at the American University Washington College of law. She writes and teaches in the fields of constitutional law, immigration, and citizenship law, federal courts of jurisdiction and judicial ethics. She has written numerous academic articles in such publications as the duke law journal and the northwestern law review. Her nonacademic work has been featured in publications such as the atlantic and the new york times. Before entering academia professor frost clerked for judge raymond a Raymond Randolph on the u. S. Court of appeals for the dc circuit and was a staff attorney at public citizen. She has both her ba and jd from harvard and was a fulbright scholar. Welcome. Gabe ross is the executive director of fix the court, a Nonpartisan Organization solely focused on modernizing the federal judiciary. Originally from nashville tennessee mr. Roth began his career as a producer at the nbc affiliate in jacksonville florida. He has a ba from Washington University in st. Louis and an ms in journalism from northwestern university. Welcome sir. Russell wheeler is a visiting fellow in the brookings institutions Governance Studies Program and president of the governance institute. He is also an adjunct professor at American University Washington College of law and a fellow of the university of Denver Institute for the advancement of the american legal system. Previously he was the Deputy Director of the federal Judicial Center which he first joined in 1977. Before that he also worked at the National Center for state courts and United States Supreme Court. He has written extensively on the United States courts including on judicial ethics stop mr. Wheeler has a phd in Political Science from the university of chicago and a ba from Augustana College in illinois. Welcome sir. Professor Charles Gardner j is the john f can billing professor of law at the Indiana University morro school of law in bloomington indiana. He invites his writings on judicial conduct ethics and selection independence, accountability, and administration include mo