Former judge says Supreme Court needs ethics panel quickly

A retired federal judge and federal watchdog does is demanding that the Supreme Court create a three-member ethics panel, following a series of embarrassing scandals involving secret gifts and travel for judges from right-wing outside groups.

Former U.S. District Judge Jeremy Fogel of California – who is also director of the Berkeley Judicial Institute – joined the watchdog group Citizens for Responsibility and Ethics this week in Washington to propose a three-member ethics panel that would, among other things, provide the Supreme Court with confidential advice from judges and creating a mechanism whereby a judge’s qualification to preside over a case can be questioned due to “personal biases, prior involvement as legal counsel, or financial conflicts of interest.”

The renewed pressure on the court comes as support for an “enforceable” code of ethics has emerged publicly by Judges Kentanji Brown Jackson And Elena Kagan this summer and after president joe biden and vice president kamala harris a plan to reform the Supreme Court.

The idea of ​​tightening the court’s current and mostly lousy code of conduct is not that far-fetched. The Supreme Court’s decision to adopt a code of conduct in November 2023 — and for the first time in its history — came only after investigative reports to the court from groups like ProPublica and others broke out and public backlash ensued.

The structure of the proposed panel and the way its powers would be shaped resemble existing checks and balances on judicial conduct in the country’s lower courts. Fogel and Noah Bookbinder, the president of CREW, noted that it was Kagan who did that recently proposed that lower court judges could help enforce the code of conduct for the highest court in the land.

The panel would consist of three members appointed by the Chief Justice.

One of them would be appointed for a one-year term and could then stay for another three years. The second would be appointed for a two-year term and would also be eligible for a further three-year term. And the third and final one would initially be appointed for a three-year term and would then no longer be eligible to serve on the panel. No one would serve more than one three-year term.

All panelists would be retired circuit or Article 3 judges who are also members of the national Committee on Judicial Conduct and Disability, which is part of the United States Judicial Conference.

CREW’s chief ethics counsel, Virginia Canter, told JS in an email Monday that bBy calling on the chief justice to select the panel from this group, it introduces “an additional element of independence that will help strengthen its accountability.”

But Canter acknowledged that “we expect all participants, including the Chief Justice, to act in good faith to help restore public confidence in this important institution.”

That confidence has been shaken. According to the Pew Research CenterLess than half of the U.S. has a favorable view of the court, approaching a 30-year high of trust.

Supreme Court Justices Clarence Thomas and Samuel Alito were a lightning rod of controversy. This summer, Thomas reported late that billionaire Harlan Crow had paid for his 2019 trip to Bali. Thomas also took lavish trips to California on the influential billionaire’s dime, most notably to Bohemian Grove in Monte Rio and the men-only, invitation-only Bohemian Club. a playground for the powerful. Additionally, Thomas’ wife, Ginni Thomas, pushed for the 2020 election results to be overturned and attended the rally at the Ellipse in Washington on January 6. As for Alito, he made an undisclosed statement. luxury vacation to Alaska in 2008, paid for by GOP megadonor Paul Singer. Flags associated with the Jan. 6 Capitol rioters were also flown outside his home shortly after the incident. Despite this, he has refused to withdraw from the January 6 cases.

The panel would serve as a confidential resource that the justices can tap if they have questions about whether they can or should continue or withdraw from a case. The panel could also answer questions from judges about compliance with U.S. law more broadly, or how their decisions might affect the court’s code of conduct more generally.

But perhaps most importantly, the formation of a panel creates a new perspective for people to disqualify a judge if the person filing the motion believes the judge’s impartiality can be “reasonably questioned.”

This request should include a brief statement summarizing the issue and then a list of facts relevant to the assessment. The person must provide a brief argument setting out the reasons for possible disqualification and concisely stating exactly what relief he or she is seeking.

These requests would be made under penalty of perjury and must include a signed statement that the request is not intended to harass a judge or cause “undue delay.”

Under this new system, once the disqualification request is filed, it goes to the Department of Justice’s Office of Legal Counsel for review to ensure the charges are not frivolous. If approved, the Office of Legal Counsel would refer the case to the panel, which will conduct its own review and ultimately issue a “confidential opinion” to the judge in question.

By the end of each year, Fogel and Bookbinder said, the panel would prepare a report indicating how many of these motions were referred and how many opinions were issued.

It is unclear whether this annual year-end report will be made fully public or made public with redactions. It is also unclear whether judges should respond.

While calls for an “external oversight mechanism” on the Supreme Court have grown in recent years, Fogel and Bookbinder emphasized their respect for the court’s own concerns about judicial independence and the separation of powers.

Establishing ground rules for refusal that respect this separation of powers is undoubtedly difficult work, but as the code of conduct currently stands, Fogel and Bookbinder say it is far more problematic to allow impartiality or the appearance of it to persist.

“We believe that our proposal represents a meaningful form of impartial review that also respects the Court’s unique role in our constitutional structure,” the pair wrote.