Transcripts For CSPAN3 House Judiciary Hearing On Ethics Acc

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 unhike nearlik 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 a justice and 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 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 recuse from a case without anyone else reviewing their decision. 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. 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. Thank you, i hook forwalook your testimony. It is my pleasure to welcome the gentle woman from alabama for her Opening Statement. Thank you to all of our distinguished witnesses for coming to testify today. Ive seen firsthand the importance of the judiciary and im proud to be Ranking Member of this subcommittee to ensure that our courts are the structure to efficient 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 on line 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 fror 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. They can create a code of conduct for federal judges and justices. This is both questionable and e reraetive. Federal judges are covered by the judicial conferences code of conduct and the judicial conference does not oversee the Supreme Court. It seems strange we would have Lower Court Judges creating a code of conduct for the highest court in the land. There are 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 is being made in that effort. There are concerns raised with posting judges Financial Disclosures online. With the high profile and sometimes contentious decisions the judges must make, there are unique safety and security concerns. Im from alabama and i remember quite vividly when judge robert va in. Ce was assassinated. The 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 personal Information Available that can be used to threaten judges and 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. There is no requirement that members of congress explain why they on stained from voting and i think many colleagues would be opposed to such a requirement. While we should look at ways that courts are trans parent, fishlt 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 thank our witnesses for time particularly on an early flyout morning for being here. I yield back. Thank you. Im 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 is 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. A federal judiciary is envy of the world and congress is interested in ensuring this reputation is maintained. Todays hearing is part of that process. The hearing title suggests were 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 accustom 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 sfrefl self from a case . These go to the juidiciary 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 . Im glad to say there seems to be some bipartisan committeement for further action. The Judiciary Committee passed by a voice vote the judiciary rumor 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. This congress 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. 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 court act which i introduced in prior years. Im interested in seeing what can be done to strengthen the courts, make no mistakes, i spre respect the difficult job they perform every day. Physical threats against federal judges and other Court Officers has dra mat beingmatically incr. 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 of the safety of our judges and women and men who assist the courts in fulfilling their responsibilities. There are other concerns such as safety. I hope we can continue that dialogue in light of the changing times. To thaend, 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. 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 that is holding the hearing so congress can promote ethics, accountability and transparency and 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 account act to litigants and the American People. I generally support the idea that a Supreme Court should have the 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. 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 a code of conduct that is the reality of a Supreme Court justice and maintaining public accountability. It will be improvement for judicial 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 thaez 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. It is true members of congress and the Financial Disclosure are posted online, federal judges face different risks. They work in close proximity to the egregious defenders in our system. We put them at risk and put a judge at risk or family by disdisgruntled litigant is very real eastern concerning. 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. Im glad youre all here and im glad that your statements well hear from theenz the statements 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. I will now introduce the 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 and jurisdiction and federal 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 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 director of fixed court, a Nonpartisan Organization solely focused on modernizing the federal judiciary. 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 if 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 and 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. 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. He has a phd in Political Science from the university of chicago and a ba from the college in illinois. Welcome, sir. Charles gardiner jay is profess your of law at the Indiana University school of law in bloomington, indiana. His writings on judicial conduct and selection, independence, accountability and administration include more than 70 books, book chapters, articles, reports, and other publications. Prior to entering academia, he served as counsel to the house Judiciary Committee on courts interlekt youll property and under chairman robert w. Castenmeyer. Professor jay has both his ba and jd from the university of wisconsin. Before proceeding with testimony, i remind witness thats your written and oral statements made to the subcommittee in connection with this hearing are subject to penalties of perjury pursuant which may result in the impositions of a fine or impresident ment of up imprisonm five years or both. Meez note that each of your written statements will be entered into the record in its entirety and accordingly ski that y i ask that you summarize your testimony in five minutes. To help you stay within that time, there is a timing light on your table. When the light switches from green to yellow, you have one minute to con chewed 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 roby and members of the subcommittee. My name is amanda frost. Im 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 the countrys great strengths is the 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 cou