Judicial ethics: HR 1, the For the People Act of 2019

The For The People Act of 2019 is a bill introduced and passed in the U.S. House of Representatives to, among other things, create ethics rules for the U.S. Supreme Court where strangely none exist. The bill was passed by the House on March 8 by a vote of 234-193 along strict party lines. However, to take effect, it would also need to be passed by the Senate, which event has not occurred as of this writing.

It is an historical anomaly that Supreme Court justices are the only judicial category not currently covered by a code of conduct. Given the developments involving how the Supreme Court as the third branch of our federal government, and perhaps the most important to the enforcement of constitutional protections in these contentions times, will in effect have the last word as Congress and the executive branch play out their rivalry, it is important for the public to understand just what is at stake in seeing to it the bill is approved by the senate and becomes law.

The provisions are set forth in the act as Subtitle A--Supreme Court Ethics 4 SEC. 7001. CODE OF CONDUCT FOR FEDERAL JUDGES.

This is the result of a longstanding proposal to subject Supreme Court justices to a code of conduct for the first time. This provisions provide the occasion for an in-depth examination of the status of the Supreme Court, including the challenges raised by the confirmation hearing of Justice Brett Kavanaugh who was confirmed by a Senate in which partisan allegiance and a commitment to particular ideology overrode any concern about the integrity of the court in terms of those nominated to sit thereon. The process resulted in serious concern for anyone uncertain about the future of the court.

The Kavanaugh confirmation process demanded reforms to the court's ethics (to the extent there were any) because it underscored the transition of a previously untarnished image of the court to one of a profoundly political institution. It continued the decades-long alliance between politicians of either party to pack courts, especially the Supreme Court, with appointees who could be relied upon to implement a political agenda advocated by the party controlling the Senate. In this case, the drive to politicize the court was engineered by the majority leader of the Senate to achieve a political rather than a non-political result.

Most independent observers would conclude this process has damaged what's left of the image of the court as an institution that operates outside politics that should be applying law to facts without political considerations. The court's legitimacy has been sacrificed in a way that presents a public image lacking in democratic accountability. Thus, it becomes necessary for a system to be put in place that reassures the public the court will operate through transparency and effective regulation of the conduct of its members who sit as the "court of last resort" charged with the responsibility of protecting our constitutional rights.

Because historically the court has refused to adopt a code of ethics and a process for enforcement, it is imperative that Congress force it to do so. All other federal judges are subject to a Code of Conduct and the Judicial Conduct and Disability Act of 1980, which established procedures for disciplining those judges. While not necessarily grounds for discipline, violations of the Code of Conduct are taken very seriously by federal judges.

Chief Justice John Roberts has responded to past reform efforts by arguing members of the court are proficient jurists who should be trusted to apply the rules of ethics to themselves. This approach is inconsistent with the adage of the law holding that no person should be their own judge. It elevates members of the court to a pedestal that is beyond what our founding fathers intended.

Roberts has also advocated that congressional regulation of judicial ethics possibly may be unconstitutional. Yet, the Constitution has long been interpreted to permit Congress to establish the number of justices, how much they will be paid, and the scope of the court's docket. Supposedly, the court also has been subjected by Congress to the same recusal statute that governs other federal judges and to financial disclosure obligations. Imposing a requirement, the court adopt an enforceable code of ethical conduct certainly will be consistent with these precedents.

Historically, justices have been known to engage in conduct that would seem to have violated the standards applied to other federal judges, among which was appearing as headliners at events that raised substantial money and being the source of politically motivated comments. Based on historical self-determination, members of the court are the sole determinators whether they have a conflict that should prevent them from participating in a case. There is no way to challenge such determinations by review or otherwise. The decisions of lower court judges are subject to appeal. Supreme Court justices generally do not reveal the basis for their recusal decisions, leaving unanswered questions concerning what standards they have applied. Greater transparency in the form of reasoned explanations is necessary and will be provided under the new act.

Addressing these matters became more urgent with the confirmation of Justice Kavanaugh. Reportedly, his confirmation process generated eighty-three complaints of unethical conduct that were filed with the D.C. Circuit and covered conduct extending as far back as 2004. The chief judge of the circuit forwarded the complaints to Roberts for assignment to a different circuit for consideration. After Kavanaugh's Supreme Court swearing in, that circuit, while referring to the complaints as "serious," nevertheless dismissed them because Kavanaugh was no longer a judge governed by the Judicial Conduct and Disability Act. Kavanaugh's confirmation and elevation ironically shielded him from ethics enforcement.

Recent reporting has indicated a mounting "Trump vs. Roberts" battle for the Supreme Court's reputation. This would involve Roberts' struggle to keep the court out of the growing political mud resulting from the impeachment trial and a series of cases dealing with presidential power. Irrespective of one's political persuasion, the integrity of the court must be protected as it is the last bastion in place to guarantee our constitutional system. Hopefully, at some point, the Senate will rise above partisan politics and support HR 1 in a manner that will override any potential veto by the White House. 