Statement for the Record of Common Cause President Bob Edgar on “Considering the Role of Judges Under the Constitution of the United States”

    Media Contact
  • Dale Eisman

“Considering the Role of Judges Under the Constitution of the United States”

Senate Judiciary Committee

October 5, 2011

Americans are unmatched in our dedication to the rule of law. Republican, Democrat and independent, liberal, conservative, and moderate, we agree that no man – or woman – is above the law.

Except, apparently, if that man or woman sits on the United States Supreme Court.

There is increasing evidence that some members of the Roberts Court feel unconstrained by the ethical rules that apply to every other member of the federal judiciary. They feel free, for example, to hear and decide cases in which they have a real or perceived personal or a financial interest, attend political meetings and fundraisers, and publicly align themselves with political factions.

The Code of Conduct for U.S. Judges cautions every other member of the federal bench against such activities. Judges who violate it are subject to sanctions and their decisions – if tainted by conflicts of interest – can be reversed. But some Supreme Court justices apparently think they are above all that, and their ethical decisions – and lapses – are currently beyond review.

Common Cause believes that’s wrong. The highest court in America should not have the lowest standards.

In recent months, we’ve received evidence that two members of the Supreme Court have attended partisan political strategy and fundraising meetings hosted by one of the nation’s largest corporations, Koch Industries. Others have attended fundraising dinners for ideological groups that frequently have a public stake in issues that come before the Court. One of the justices has acknowledged repeated failures to file correctly the annual financial disclosures required by the Ethics in Government Act, and there also are serious questions about whether that justice has fully and properly disclosed gifts received from a wealthy developer.

The Code of Conduct would prohibit all these activities by any other federal judge, but when it comes to the Supreme Court, the code appears to be unenforceable.

Controversy over these and other incidents threatens to undermine the public’s confidence in the integrity and impartiality of the Supreme Court. Indeed, a recent Gallup poll shows that public approval of the Court has dropped from a high of 61 percent in 2009 to 46 percent now, the second-lowest level on record.

We urge senators to use today’s hearing to question Justices Breyer and Scalia about the Court’s behavior and views on federal Code of Judicial Conduct, and to explain why Supreme Court justices should be granted ethical immunity. We understand that several justices have said they consult and apply the code voluntarily in making decisions about ethical matters but we believe Congress, or the Court itself, should act to ensure that the highest court meets the highest ethical standards.

HR 862, the Supreme Court Transparency and Disclosure Act of 2011, offers one possible solution to this problem. It would bring the Supreme Court under the Code of Conduct and direct the U.S. Judicial Conference to establish procedures for reviewing complaints about violations of the Code by the justices. It also would require the justices to detail in writing their reasons for disqualifying, or refusing to disqualify, themselves in cases in which their impartiality is called into question.

Whether through this bill or some other means, we believe it is possible to put in place a process through which litigants and the general public can be assured that the Code is being applied and enforced for every member of the judiciary, including justices of the Supreme Court. Equally important, we are convinced this can be done without compromising the independence of our courts and judges at every level.