Transcripts For CSPAN Fmr. 20240706

Lectures about upholding our institutions and protecting democracy, but just as often, they find a way to undertake some new reckless attack against the courts and rule of law. Im proud of how our nations highest court has weathered these latest baseless attempts to attack its authority. I believe in the integrity and honesty of all nine justices all nine of them. They should pay the partisan grandstanding no mind at all. This meeting of the Senate Judiciary committee will come to order. Today, the Senate Judiciary Committee Considers the topic of Supreme Court Ethics Reform. Being a federal judge is a position of great honor and power, but above all, it is Public Service. We entrust judges with administering equal justice under the law. It is critical to our democracy that the American People have confidence that judges cannot be bought or influenced and that they are serving the public interest, not their own personal interests. Over the course of several decades, congress and the Judicial Branch created a system of ethics laws and standards for federal judges that lay out the clear rules of the road. These rules promote transparency and disclosure. They place guardrails on conflicts of interest, provide mechanisms for investigation and enforcement, and ensure accountability for misconduct. They strengthen faith in the fairness of the courts and the judges who serve on them. We are here today because the Supreme Court of the United States of america does not consider itself bound by these rules. I invited the chief justice to join this conversation. Last week he sent me a letter declining to testify to this hearing and he said, separation of powers concerns and the importance of preserving the Judicial Independence. The reality is that sitting justices have testified at 92 congressional hearings since 1960. And i even offered to the chief justice the opportunity to designate someone else on the court to testify. But im more troubled by the suggestion that testifying to this committee would somehow infringe on the separation of powers or threaten Judicial Independence. In fact, answering legitimate questions from the peoples elected representatives is one of the checks and balances that help preserve the separation of powers. In his letter last week, the chief also sent what he called a statement of Ethical Principles and practices. It was a document attached to his letter. It is an extraordinary document, not in a good way. It makes clear that while the justices are fine with consulting with certain authorities on how to address ethical issues, they do not feel bound by those same authorities. Much of the document explains why justices think they should not be treated the same as other federal judges when it comes to ethics. And it stresses that recusal decisions are made by individual justices alone, with no review of their discretion. The chief justices letter and statement of principles are a defense of the status quo, but they are oblivious to the obvious. Last month we learned about a justice who for years has accepted lavish trips and realestate purchases worth hundreds of thousands of dollars from a billionaire with interests before the court. That justice failed to disclose these gifts, and has faced no apparent consequences under the courts ethics principles. That justice claims that lengthy cruises aboard a luxury yacht or personal hospitality and are exempt under current ethical standards from even being reported. The fact that a texas billionaire paid more than 100,000 for the justices mothers home seems to be an acceptable example because the justice says he lost money on the transaction. How low can the court go . One of our witnesses will say it is hallucinating misconduct. I think it is clear to most objective people that this is not the ordinary course of business, nor should it be a standard for those of us in Public Service. We wouldnt tolerate this from a city councilman for or an alderman. It falls short of ethical standards we expect of any Public Servant in america. And yet the Supreme Court wont even acknowledge it is a problem. The chief justices letter doesnt mention it. Meanwhile, the rest of the federal judiciary and the executive and legislative branches have codes of conduct designed to prevent even the appearance of fraud or corruption. The Supreme Court is an outlier on the basics. This is untenable. Ethics cannot simply be left to discretion of the nation highests court. The court should have a code of conduct with clear and enforceable rules, so both justices and the American People know what conduct crosses the line. The highest court in the land should not have the lowest ethical standards. That reality is driving a crisis in Public Confidence in the Supreme Court. The status quo must change. For those who might suggest that my concern is driven by judicial activism against the current courts conservative philosophy, i and other members of this committee wrote the chief justice 11 years ago and urged the court to adopt a code of conduct. I can include a copy of that letter from february 2012 into the record. The Supreme Court should fix this themselves. For years theyve refused. Because the court will not act, congress must. Today we will hear from a panel of expert witnesses about the reforms that are needed, and lets be clear, congress not only has the authority to legislate in this area, but the responsibility. Taxpayers dollars pay for the federal judiciary, including the Supreme Court. Congress passes many laws that shape the high court from the annual spending bills that pay the justices salaries to the federal statute that establishes the words the oath of office that the justices take. I appreciate the chief justice responding to my letters and questions from my democratic colleagues. But the answers we receive further highlight the need for meaningful Supreme Court Ethics Reform. We have the right and rationale to enact such reform, and that is what we will pursue. I want to say that this hearing is being held jointly with the full committee and the subcommittee on courts shared by sen. Whitehouse, joined with senator kennedy, i believe, in making opening stamens. At this time i turn it over to the Ranking Member senator graham. Sen. Graham thank you, mr. Chairman. I, too, expressed a desire for the court to be more transparent and have rules that the public can relate to. We have been talking about that for quite a while. Ive never suggested that the congress should take over the courts ability to regulate itself. I do not believe that is wise. And the letter that was received by the committee was not just signed by Justice Roberts, it was signed by all of the judges. All of them have the same concern, not just one. So where do we go and what are we trying to do . I think he was what you are trying to do that here is what you are trying to do the democratic forum. Remember when senator schumer went to the court and started yelling at everybody in the court not everybody, just pretty much our folks i want to tell you, gorsuch, i want to tell you, kavanaugh, you have released the whirlwind and you will pay the price. You wont know what will hit you if you go forward with these awful decisions. Awful decisions we all have been in the boat of getting an outcome from the Supreme Court we wouldnt like. But the majority leader of the United States senate went in front of the court, literally out in front of it, and threatened two judges. And Maxine Waters says you aint seen nothing yet. We can talk about ethics, and thats great, but we are also going to talk about the concentrated effort by the left to delegitimize this court and to cherry pick examples to make a point. The New York Times wrote an article a couple of days ago suggesting that George Mason Law School was up to an effort to take over the court by lavishing them with trips and influencing their decisionmaking process, by sponsoring trips overseas while they were on break. The New York Times did not tell us about Justice Sotomayors travels to florence, italy. They did not tell us about efforts Justice Kennedy took a threeweek multi trip to salzburg, austria, aspen, colorado, paid for by the university of the pacific. Justice sotomayor and Justice Ginsburg traveled on the dime of new york university. Justice jackson was reimbursed by the university of californiaberkeley in 2016 and 2014 for traveling to the aspen institute. Chief Justice Roberts was reimbursed for travel to london to teach a class on the history of the Supreme Court to students of the new England School of law. So universities throughout this country have been paying for trips of judges. But if you read the New York Times, you wouldnt know that, would you . I cant say i read the new republic, but this is a headline. The democrats needed to destroy Clarence Thomass reputation. That is sort of what we are here about. Well, it is not going to work. This assault on Justice Thomas is well beyond ethics. It is about trying to delegitimize a conservative court that was appointed through the traditional process. Your response has been to pack the court. Virtually every member of the democratic caucus, except maybe one or two, are expanding the number of judges to dilute the conservative majority that exists today. Mr. Chairman, from our point of view, this is not going to work. You can write all the articles you want to write and take all the shots at the conservative justices you want to take. You can picket before their houses. Its not going to stop people from doing their job. This is an unseemly effort by the Democratic Left to destroy the legitimacy of the roberts court. Its put people at risk, its put their personal safety at risk. If you want to talk about making the court a better institution, ill be glad to work with you in that regard. If you want to talk about destroying the court, count me out. And about conflict of interests, Justice Kagan, who is a fine person, was the dean of harvard law school. She has raised half 1 billion for the law school. When she was dean, that was sort of her job. After she left, she has been trying to raise money for harvard law school. There is a case involving harvard before the court, shes not going to recuse herself. Im not saying she should. Im just saying there is a very selective outrage here. And from our point of view on this side of the aisle, we are going to push back as hard as we can and tell the American People the truth about what is going on here. This is not about making the court better. This is about destroying a conservative court. It will not work. Sen. Durbin thank you, senator graham. I might note that the letter i sent 11 years ago to the court was not any indication of hurt feelings about court opinions. Another person on this subject for many years is the chairman of the court subcommittee, Sheldon Whitehouse of rhode island. I recognize him now. Sen. Whitehouse thank you, chairman. We are here because the Supreme Court is playing out of bounds of the ethics rules for federal judges. Justices read the ethics rules in unique and eccentric ways, and when they are cut out of bounds, they refused to allow any investigation of the facts. The personal hospitality problems ive been pursuing began with Justice Scalia, who took more than seven dozen undisclosed hunting vacations. Most people know of two, one where he was with dick cheney, and the one where he died. There were 70plus more. It was systematized. An intermediary with the owner of a resort extending to scalia a personal invitation to the resort. Even when the owner was someone he had never met, scalia treated as personal hospitality because of the personal invitation, and failed to disclose the vacations. Gun industry advocates and republican political figures often tagged along. No reading of personal hospitality would cover this, but at the Supreme Court it went on for years. When i challenged the court about this practice, exhibit 1, i got a blowoff letter, exhibit 2. Basically, nothing to see here. So then i asked of the Circuit Courts what they thought about this conduct. I went 013 on answers. Exhibit 3. So i sent another letter saying i hope it didnt indicate obstruction. Exhibit 4. I was told the Financial Disclosure committee would examine how the exemption was interpreted. That is exhibit 5. Almost a year later, two weeks before the recent news about Justice Thomas broke, the judicial conference updated its guidance to clarify that this sort of nondisclosure violates the law, exhibit 6. I have no evidence that any federal judge outside the Supreme Court ever used a personal invitation trip. The judicial conference made up of other judges firmly shut it down. Regular judges would be loath to use that trip because the complaint about it would go through the proper process, it would be investigated and measured against the law and the ethics code, and a conclusion would be reached, and that conclusion could be embarrassing. Only Supreme Court justices refused to allow their conduct to be investigated or reviewed. My bill would fix that. Here is an example of the noinvestigations problem the key factor to determine whether Justice Thomas was bound by law to recuse himself from the first january 6 Committee Case was what he knew about his wifes insurrection activities and when he knew it. On that fact, the lawfulness of his initial recusal position turns. Yet thomas has never been officially asked that question. Its a coverup in plain view. The Supreme Court alone among federal courts is ok with that. My bill would fix that. Which brings us to Justice Thomass recent nondisclosure of supposed personal hospitality from a rightwing billionaire and its problems. First problem, private jet travel is not in the personal hospitality exemption, which is limited to food, lodging, and entertainment. Exhibit 7. Some textualist, by the way. Second problem, thomas said it was ok because he asked colleagues. But that Financial Disclosure committee is there to ask about Financial Disclosure. Setting aside that its name should give a clue, thomas knew the committee existed because concerns about his yacht and jet travel gifts from this billionaire were referred there in 2011 after some of these gifts were first revealed in this New York Times story, exhibit 9. Third problem, there is no legal way not to disclose the acquisition in georgia. Fourth problem, some of this personal hospitality involved people dedicated to turning the court into a tool for rightwing billionaires, namely leonard leo. This guy doesnt have business before the court, his business is the court. This disclosure mess has again been referred to the Financial Disclosure committee, which raises the question of the previous referral to the same committee of the same billionaires gifts to thomas of yacht and jet travel. The rules require the committee to report its findings to the judicial conference. The records of the judicial conference are public. And the records of the judicial conference contained no mention of any such report. So what became of the 2011 referral . Did anyone intervene . Is the Committee Still considering the 2011 referral more than a decade later . There is much yet to learn, which is why last week i sent a letter to the courts asking for further answers, exhibit 10. Three things i needed to fix all this better enforcement, better recusal rules, and better disclosures. My bill would do all three. I thank you chairman durbin for this joint hearing and i look forward to getting to the bottom of this mess. Until there is an honest ethics process at the Supreme Court, these messes will continue. The court has conclusively proven it cannot police itself. I asked for unanimous consent that my exhibits be made part of the record. Sen. Durbin without objection. We will hear from Ranking Member of the subcommittee, senator kennedy of louisiana. Sen. Kennedy thank you, mr. Chairman. Americans may be poorer under the biden administration, but they are not stupid. They know what is going on here. I remember the Democratic Leaders words of march 4, 2020, on the steps of the United States Supreme Court, like they were yesterday. I want to tell you, gorsuch, he said not Justice Gorsuch. Gorsuch. I want to tell you, gorsuch, i want to tell you, kavanaugh, you have released the whirlwind, and you will pay the price. You wont know what hit you if you go forward with these awful decisions. Wow. Just wow. I think matthew 12 36 is correct, for by thy words you shall be justified, and by thy words you shall be condemned. Now, the sad truth is that some not all some of my democratic colleagues have been on a crusade to undermine the United States Supreme Courts legitimacy and the credibility of the federal Judiciary Committee for years. Todays hearing is just the next chapter in their federal power grab, and they have invited cameras. It is worth remembering the very real persecution that some democrats have levied on very good people. It started with the savage destruction of professor and judge robert bork, which even the Washington Post, for gods sakes, the Washington Post said was a case of sentencing first, verdict afterwards. In other words, they gave him a fair and impartial firing squad. Then we saw the hightech lynching of Justice Clarence thomas. Then for the first time in history they weaponized the filibuster to kill miguel estradas nomination, and they also demonized Justice Janice rogers brown, a very fine person. When the United States Senate Confirmed three new Supreme Court justices, which the loon wing of the Democratic Party loathed, the campaign of threats ratcheted up. You remember the shouts. Lets pack the court, they said, lets pack the court. And the political threats of some of the highest officials in our government fueled threats against the justices, and we know that. You have released the whirlwind, the Democratic Leaders said. And since protesters took to the streets not outside congress, not outside the court, but outside the homes, the homes, of Justice Roberts, Justice Kavanaugh, Justice Thomas, and justice barrett, federal law prohibits this intimidation, but the Biden Justice department allows it. You pay the price, the Democratic Leaders said. In that spirit, angry protesters publicized the location of the school that justice barretts children attend. You wont know what hit you, the Democratic Leaders said. A man with a gun, ammunition, knife, pepper spray, and zip ties went to a justices home to assassinate him. Actually, his stated goal was to murder three justices. Not so suddenly, the ends justify the means for activists. Even inside the court itself, the Dobbs Decision was not leaked by a leftwing blogger. Why . That is worth asking. You dont need to be einsteins cousin to figure it out. They arent getting their way. They arent getting their way, so they want to change the rules. But the constitution isnt a game, folks. And now some democrats Want Congress to override the Supreme Court of the United States and apply rules to its justices. The constitutional separation of powers means that no branch of the federal government can dictate how another should govern itself. Now, why this is to protect the people from abuse. The framers insulated the federal judiciary from federal control to ensure that the justices would decide cases impartially. Impartially. Without fear of the kind of retaliation that fills the pages of some not all, but some leftoflenin democrats playbook. Do my colleagues want the congress to tell the Supreme Court how to police itself . The court could rightly rule that code is unconstitutional. None of the laws we make here trump the United States constitution. Whats more, some democrats want to use the lower courts as a cudgel against the highest court in the land by giving the circuit judges the power to rule on whether justices should recuse themselves. Consider the conflicts of interest and the confusion that that would breed. Unless you peaked in high school, you must know that they would be breathtaking. Now, the absence of an ethics code written by congress in statute does not mean that justices are without accountability. Justices routinely consult the existing code of conduct, and federal law requires recusal in certain circumstances like bias or financial interest. We all know that. The justices are subject to strict Financial Disclosure rules just like my colleagues here. Not only is this democratic proposal unconstitutional, it is unnecessary. The attacks on conservative justices are targeted. They are exaggerated. The alarmism is affected. The danger isnt that rogue justices are operating without ethics, it is that democrats arent winning every fight and they find that reality intolerable. Ive been disappointed by Supreme Court opinions, too. But my democratic colleagues should fill out a hurtfeelings report and move on for the sake of the constitution. Look, the agendadriven story here is that Justice Thomas has a rich friend who had no business before the United States Supreme Court. For context, lets recall that history is littered with examples of Public Officials failing to disclose their every transaction. We can acknowledge it is required by law. It is. We can acknowledge it is the right thing to do. It is. But we can do that without maligning each justices motives and the entire institutions credibility, for gods sakes. You know who else amended their disclosures because of inadvertent omissions . Justice ruth Bader Ginsburg. Justice Stephen Breyer. Two good people. Justice jackson made multiple amendments three days, three days after President Biden nominated her. Not one senator brought that up during her confirmation hearings. Not one of my colleagues here walked into her hearings with buckets of mud they have thrown against Justice Thomas. Not one. Nor should we have. In the last month, some, not all, but some democrats and their media allies have hyped up attempted hit pieces on every republicanappointed Supreme Court justice except one. They tried going after Justice Kavanaugh for buying baseball tickets. Justice alito for having dinner with people who gossip. The wife of chief Justice Roberts for hiring good lawyers. Justice gorsuch for selling land in an llc, which he properly disclosed to a major donor to the Democratic Party, for gods sakes, who he has never even met. And Justice Thomas for having a rich friend. Justice barrett, if you are listening, i hope you dont have Library Books overdue. If recent history is any indicator, you are next. Todays hearing is an excuse to sling more mud at an institution that some, not all, some democrats dont like because they cant control it 100 of the time, and that is a fact, and everybody in his hearing room knows that. Until they get the outcome they want in every case, i fear they are going to continue to slander it in an effort to take control of it. And i pray to god i am wrong. Thank you, mr. Chairman. Sen. Durbin thank you, senator kennedy. I will repeat what i said before because it bears repeating violence against any public official right or left, democrat, republican, or independent, is unacceptable. We tried in this committee to pass legislation to make that clear. When it comes to the Supreme Court justices and others, we have an obligation to protect them. And it was attorney general Merrick Garland who has provided roundtheclock security for the Supreme Court justices from u. S. Marshals at their home, which i think is entirely proper. There is no question about the bipartisan commitment to their safety. I at this point will introduce three majority witnesses and turn it over to senator graham to introduce than minority witnesses. The honorable jeremy fogel served as u. S. District judge for the Northern District of california from 1998 until 2018, from 2011 to 2018 served as director of the federal judicial center, a research and Education Agency of the Judicial Branch supporting the Effective Administration of justice. Judge fogel served from 2004 to 2011 on the judicial conference coming on Financial Disclosure. He was a state court judge in california. Kedric payne is the Vice President , general counsel, and senior director of ethics at Campaign Legal center. Previously advised an executive Branch Ethics law as deputy general counsel to the u. S. Department of energy, enforced ethics laws and standards of conduct as a deputy chief counsel at the office of congressional ethics, served and clerked on the Southern District of new york. I want to congratulate you on your brandnew baby, two weeks old. I can imagine how difficult it is to pull yourself from your family, so i appreciate that you are here. Professor amanda frost is a professor at the university of Virginia School of law. She writes and teaches in the field of constitutional law, judicial ethics, and immigration. She writes a column for scotusblog. She served on the u. S. Court of appeals for the d. C. Circuit judge and worked as a litigator for public citizen. Now i will turn to senator graham. Sen. Graham thank you, mr. Chairman. We have former attorney general michael mukasey. Judge mukasey served as attorney general of the United States from november 2007 to january 2009 and advised on Critical Issues of domestic and international law. Following his time as attorney general, judge mukasey returned to private practice in new york, focusing primarily on internal investigation and independent border abuse and corporate grievance. From 88 to 2006, judge mukasey served in the Southern District of new york and as chief judge in 2000. From 72 to 76 he was District Attorney for the Southern District of new york. He received his law degree from yale in 1967 and his b. A. From Columbia College in 1963. Mr. Thomas dupree is a partner at Gibson Dunn Crutcher and chairs the nationwide appellate and constitutional law practice group. He is a seasoned litigator before the Supreme Court. He served at the Justice Department during the Bush Administration and served as assistant attorney general for the Civil Division and became the Principal Deputy assistant attorney general. He was responsible for managing the governments most significant cases involving constitutional matters, the white house, and senior federal officials. He has testified before congress on constitutional matters numerous times. He is a graduate of Williams College and university of chicago law school, where he served as editor of the university of chicago law review. He clerked for judge jerry smith on the u. S. Court of appeals. Sen. Durbin after the witnesses are sworn in, they will have five minutes to make a presentation and members will have five minutes to ask, and i ask the witnesses to stand and raise your right hand. Do you affirm the testimony you are about to give is the truth, the whole truth, and nothing but the truth, so help you god . Let the record reflect that all five witnesses have answered in the affirmative. The witnesses will be called in the order they are seated. The first will be the honorable jeremy fogel. Judge fogel. Make sure your mr. Fogel yeah, thank you, got it. Thank you, chair durbin. Mr. Chairman, ranking number graham, members of the committee, it is an honor to be here. Thank you for inviting me. I also want to acknowledge and say how honored i am to be here with my fellow witnesses. I think we all have something to contribute to this conversation. As chair durbin said, my name is jeremy fogel. I am a retired judge at the United States District Court for the Northern District of california. I served as a federal judge for 20 years and for seven years as director of the federal judicial center. And relevant to what we will be discussing today, i worked very closely with the judicial conference and its committees when i was ftc director. My primary responsibilities were overseeing policyrelated research and educational curriculum for the Judicial Branch, including education about ethical standards and Financial Reporting requirements. The chief justice chaired our governing board. I had regular contact with him and with the circuit and District Courts leadership. I am pleased to say i have collegial relationships with judges all over the country of all judicial philosophies. It is something that is very meaningful to me. Before being appointed as director of the federal judicial center, i was a member of the Judicial Conference Committee on Financial Disclosure for seven years. I acquired substantial knowledge of the ethics in Government Act and its applications to judicial officers including the redaction to protect by letters and their families. The principal point is the court needs Greater Transparency when it relates to ethics. I want to be clear why im here today. I am not here to question or criticize the conduct of any justice, and it is not my purpose to take sides in a political debate, which is an odd thing to say when one is in congress, but it is truly where i am coming from. I spent 40 years of my professional life avoiding partisanship. I treasure my relationships with judges across a broad range of political persuasions. And i have Great Respect for the court as an institution and with the justices with whom i have had the pleasure of interacting over the course of my career. I am particularly grateful to chief Justice Roberts for his counsel during my time at the ftc. Given those relationships i have for the judges and justices, it is awkward for me to be here. And i do not doubt the sincerity of the submissions of the chief and the justices the court have made to this committee. They are given ingrained sincerity. I am here because i think more is needed. Over the decades, the court has been our most trusted government institution, are outpacing the legislative and executive branches in polls measuring Public Confidence. That status has eroded significantly. Only a decade ago, two thirds of americans said they had confidence in the court. Now it is exactly the opposite, about two thirds say they have little or no confidence in the court. Some of that erosion has had to do with controversies surrounding decisions, one would be naive not to say that. But there are other factors at work. There is a persistently hyperpartisan political environment, an increasingly contentious confirmation process, the near disappearance of civics curriculum from our schools, and the pervasiveness of social media as a source of misinformation and disinformation about the law, the judicial process, and the judges and justices to whom that process is entrusted. In this environment, i believe that the absence of a formal structure for defining and validating the ethical rules governing the Supreme Court justices is untenable. Too Many Americans already think that the justices decide cases based on their political preferences and alliances rather than the law. Lack of clarity about the justices ethical obligations only feed that perception. Every other judicial officer in our country, regardless of the type of court on which they serve, is guided by explicit ethical standards and is subject to some degree of oversight to ensure compliance. The same is true of all of our officials in the executive and legislative branches. While people familiar with the inner workings of the federal judiciary can read the submission to this committee and admire as i do the care and nuance with which it has been crafted, i fear for everyone else the process and the consideration are a black box. How and when do the justices consult the sources, what weight do those resources receive, who if anyone not affiliated with the court is available to offer independent advice, and most importantly, what procedures are in place to ensure an appropriate degree of transparency that is consistent with the provisions principles of Judicial Independence and security . In its yearend report in 2011 and recent submission, the chief justice explained how the Supreme Court differs from other courts and why it would be inappropriate to simply adopt the code of conduct applicable to all federal judges. I agree with him on these points, but that doesnt mean that the court should have no formal code at all. It could adopt a modified code that accounts for these differences. For example, given the significant greater impact of recusal on the nine members and no ability to draw upon potential replacement, the potential provisions of a modified code might identify and weigh factors against recusal differently. Because of its unique position in the Judicial Branch and the need to avoid a procedure that might compromise independence of the security of its members, the court could designate a panel of retired judges with deep experience and unquestioned integrity to provide it with confidential advice as to whether an act or relationship poses an issue under the code. The point is that a formal code of conduct would provide clearly stated and visible rules and procedures to which the justices are especially committed. Adoption of such a framework would not make controversies about the court and its decisions disappear, but it would be a statement to the American People that their faith in the courts adherence to Core Principles matters, and reflect the recognition that given the outsize importance of the role, the justices, in the words of conservative michael luttig, should be bound by Higher Standards than other justices. And the ability to develop a rules of procedure that made our federal court a model, i have every confidence that such an effort would produce a carefully balanced framework of high quality and would represent a significant step forward. Thank you very much for the honor of appearing before this committee. Sen. Durbin thanks, judge fogel. Judge mukasey, welcome back to the Senate Judiciary committee. Please proceed. Mr. Mukasey thank you, mr. Chairman. Chairman durbin, ranking number graham, members of the committee, i thank you for inviting me to testify today to share my thoughts on issues surrounding Supreme Court justice ethics rules and Financial Disclosures. I am a retired partner and council of a firm and the views i express are my own and do not represent the views of the firm. I served as attorney general under president george w. Bush from 2007 2009 as a district judge from 1988 to 2006. I would like to deal with two topics, one is policy principles, and the other issues that have become current and determining the facts from publicly available information. I believe that basic principles of the separation of powers means that the court as a separate branch of government and the only court specifically provided for in the constitution is solely responsible for its Financial Disclosure and ethics rules. Just as congress establishes the rules that govern the conduct of its members and just as conflict of interest statutes that apply generally to Government Employees do not apply to the president or the Vice President. It is basic to the structure of our government that the executive, legislative, and Judicial Branches remain separate. It is the Supreme Court and not the congress that has the constitutional prerogative to decide whether to adopt a formal code of conduct. It should go without saying that if congress cannot compel the court to adopt a formal code of conduct governing each individual justice, neither may congress prescribe such a code itself. A law controlling the court to adopt such a code or purporting to impose one legislatively would violate the principle of separation of powers and would also be unworkable, in as much as there is no authority other than the justices themselves to apply such a code. Im told that proposals to delegate issues of recusal to individual justices recusal of individual justices to a Court Employee or panel of prior judges here my own experience as a judge may be instructive. Recusal decisions are fundamentally a judicial decision. This is especially compelling at the Supreme Court level. Justices cannot be replaced by other justices, as if the court were a professional Baseball Team calling up Minor League Players fill gaps in the roster. That is not to say there are no open suppose and practice. But reality governs the conduct of the justices. As chief Justice Roberts spoke to this committee in 2005, there is a statement of practices that every one of the justices has prescribed. He attached that statement to his letter. That statement itself covers the sources judges use when analyzing ethical issues in general and discusses a variety of topics, including Financial Disclosures and recusal in particular. The statement is more than two singlespaced pages in length, and i would not burden the committee with a recitation of its terms or purport to summarize it. However, the statement notes that since 1991, Supreme Court justices have followed the substance of the Judicial Conference Committee on Financial Disclosure relations that govern Lower Court Judges and file the same annual Financial Disclosure reports as other federal judges and by recent legislation signed by the president , those reports are public. The statement notes that the Judicial Conference Committee reviews information and request Additional Information when appropriate. It also provides ongoing guidance. In march it provided additional clarification on the scope of personal hospitality exemptions to the Disclosure Rules. That clarification provides an easy transition to particular issues that relate to Justice Thomas. I base my discussion of those issues on information generally available. Justice thomas has said that he and harlan crow have been Close Friends for many years, over 25 years. Mr. Crow is in the Construction Business and does not have matters before the court. There was one trivial exemption to the last point, which i mentioned because it shows how far some critics have gone. It appears that in one case, a business with which mr. Crow is affiliated opposed an application by its adversary and the writ was denied. Such applications are reviewed and summarized by a panel of clerks, not by the justices themselves. It takes four votes to grant certiorari. Justice thomas has said that when accepting travel and vacation invitations from mr. Crow, he consulted others including colleagues on applicable rules, rules applicable at the time, which describe including those in his Financial Disclosure forms. He was advised that the personal hospitality exemption applied and such accommodations need not be included. As the chief justice noted, the Judicial Conference Committee provided a clarification of the exhibit that appears to affirm that what Justice Thomas followed earlier was correct. Justice thomas says he will abide by the new clarification and include such accommodations in future reports. In addition, mr. Crow bought from Justice Thomas and his family three parcels of property. Justice thomass mother, who was in her mid80s at the time of the transaction, lives in the remaining house, which has been improved over the years and which did not have to be reported as a rental property because he was the justices mothers own. She lives in the property to this day. Mr. Crow has said that he purchased the childhood home of Justice Thomas with the intention to convert it into a museum of sorts which tells the story of Justice Thomass life. The total for the parcels was 103,600, of which a third was Justice Thomass share. That represented a capital loss to Justice Thomas. However, because the transaction was more than 100,000, Justice Thomas was obligated to report it on his Financial Disclosure form, but did not do so because he mistakenly believe he did not have to report a transaction on which he suffered a loss. It bears mentioning that Justice Thomas would not be the first justice to amend Financial Disclosure forms. Justices breyer and ginsburg have done so without the batting of an eye, and will no doubt not be the last. The firm is litigated over a dozen cases before the court, winning eight and losing four. The merits of these cases have not been discussed by critics, nor has it been indicated whether Justice Gorsuch gave a deciding opinion in any of them. Criticism has progressed, if that is the word, from meritless with justices thomas and gorsuch to ludicrous with Justice Alito and others, with the claim that the academy has influence with the court. Apart from similar vacations with liberal justices, anyone even slightly familiar with the Political Climate at law schools, such that George Mason Law School had to host Justice Alito by zoom for security concerns, noted that the claim is ridiculous on its face. The dark and intense criticism directed at justices over these transactions, the acceptance of trips and vacations from wealthy friends with no business before the court, and a property sale to the same friend at a loss, the armslength sale of a Vacation Home, is impossible for me to square with a professed concern of the integrity of the court by those making criticism. That integrity rests on the dedication of these justices to fulfill his or her oath by deciding cases on the merit, as the justices see those merits even if they see them differently from one another. That integrity remains intact. If the public has a mistaken impression that the integrity of the court is damaged, the fault for that lies with those who continue to level unfair criticism of the court and is justices. It is impossible to escape the conclusion that the public is being asked to hallucinate misconduct by justices who issue rulings with whom they disagree. Sen. Durbin thanks, judge. Mr. Payne. Mr. Payne thank you for the opportunity to appear before you today. The purpose of my testimony is to explain how the ethical standards of the Supreme Court compare to the executive and legislative branches of government. This matters because one way to understand whether ethical standards should be referred is to understand the ethical standards that already applied to other Public Officials across federal government. In particular, there are 4 basic ethics provisions that exist in the executive and legislative branches that do not exist in the Supreme Court. As a result, the Supreme Court has the lowest ethical standards and government. First, the Supreme Court does not have an internal ethics enforcement body. Without an internal ethics enforcement body, the court does not have one source responsible for providing ethics advice and for conducting ethics investigations. Justices rely on ethics advice from random and Anonymous Sources instead of inhouse ethics experts. This leads to incorrect and inconsistent interpretations of the law. Also, investigations of misconduct are extremely rare and when they occurred they are conducted by court staff who do not have expertise in investigations or expertise in ethics. This leads to inaccurate highprofile reviews of ethics manners matters. In congress, both chambers have asked committees to provide training to members and have the authority to investigate potential violations. In the executive branch, and the designated officials at each agency are able to provide treating Training Council and invites. Second, the Supreme Court does not have a binding code of conduct. It voluntarily follows the judicial congress as a does not have judicial congress over the court. They are to hold themselves accountable for conflict several interest or other positions that are not currently codified in law. On the other hand executive and legislative ridges have adopted codes of conduct land just laid of branches have adopted codes of conduct legislative branches have adopted codes of conduct. Because of the limited information that is disclosed, for privately sponsored travel for justices there is troubled criticism of potential conflict of interest. Especially given the recreational nature of these trips. Therefore, all can fall under a cloud of suspicion even when its legitimate. In comparison, there are strong rules issue, and congress there are extensive Disclosure Requirements required before and after members take trips with privately sponsored entities. This includes the cost of the trips and the agenda. This information allows the public to determine if there are any potential conflicts of interest, and finally, the Supreme Court does not have a compliance procedure for recusal requirements. The concern is that it is without a way for a judge to decide to recuse or not recuse from a matter. As a result, it is a they are left in the dark as to why there is a contras conflict of interest or as to why no conflict of interest exists. Public disclosure of detailed ethics agreements between ethics lawyers and senior officials clarifies what are the potential conflict of interest and to have a pad forward a path forward it to eliminate such conflicts. In conclusion, there may be room to debate specific pieces of legislation that can reform the Supreme Court effectively. But there is no room to debate that the Supreme Court has the weakest ethics rules and federal government. Ethics rules in the executive and legislative branches include Supreme Court standards and increase public trust and the judiciary. Thank you for the opportunity to appear before you and i look forward to your questions. Thank you, mr. Payne, mr. Depree. Chairman, thank you for inviting me to testify today. I am a partner at gibson dunn and crutcher, i and i previously served as Principal Deputy assistant at the United States department of justice. The views i shared today are my own. There are several bills under consideration that would impose a code of conduct on the United States Supreme Court. Today i will focus on senate bill 359. The recusal and Transparency Act of 2023. I will address the salient features of other bills as necessary. It would include a host of new requirements for the Supreme Court and those that appear before and argue for the Supreme Court. The Supreme Court would be required to issue a code of conduct regarding the justices and have procedures for Disciplinary Department of justice is. New recusal and disqualification requirements, and six and seven impose party and amicus briefs within the courts of appeals. Let me start with the imposition of the code of conduct. This is an extraordinary mandate. It infringes on the separation of powers. A bedrock principle that underpins our constitutional democracy. Our founders well understood the importance of separating the legislative branch from the Judicial Branch. It is as the Supreme Court explains, the rumors of art the ruins of lay among the powers which had been present along before the revolution and after the revolution had used factual strikes and partisan oppression. The shared experience is reflected in James Madison who wrote, that the preservation of liquidy requires that the three departments of power, should be separate and distinct. Ordering the justices to adopt a code of conduct instead of separation of powers, the bill intrudes on the core function and the coordinate and coequal branch of government. It is the Supreme Court not the congress that has the prerogative under our constitutional structure to decide whether to adopt a code of conduct that covers that governs themselves. As chief Justice Roberts has written, courts required chief Judicial Independence and the power to manage personal affairs insulates the court and is crucial to its separate and coequal branch of government. This bill, in particular its position instructing the justices to put a comment out for Public Notice and comment seems to be animated by an assumption that the Supreme Court of the United States is no different than the department of agriculture or any federal agency that could be commanded to engage in rulemaking. Suffice to say thats not how the framers drew it up. The relationship establishes between the Article One Congress and the article three Supreme Court it is one of coequals. The could dig the is not and if reviewed and inferior ranch. It would it compel speech by the justices by requiring them to post ethics related information on the Supreme Court website. It would require them to publicly disclose internal rules and guidance from the counselor to achieve the chief justice of the United States and perhaps most ominously, the will would the bill would require the court to establish procedures under which individuals could file complaints alleging that the justice of the Supreme Court has violated code of conduct or any other law. They can also file complaints that the justice has engaged in conduct on and off the bench, and at any time in their lifetime that the complaint and leaves could undermine the integrity of the United States. It refers to what the bill calls in judicial payables, with justices that would sit in judgment of the accused justices. If one would design a scheme that would undermine the faith in the Supreme Court, these are judicial panels would be an excellent start. Another bill, senate bill 325 entitled the Supreme Court ethics act had a similar troubling points. When testified before congress, Justice Kennedy described that proposal as a legally problematic and structurally unprecedented because it would empower judicial circuit and federal cut federal judges to make rules that Supreme Court justices would have to follow. It also employs an ethics investigation charged with investigating Supreme Court justices not just for codes of conduct but any conduct alleged to be prejudicial, and extrajudicial to the business of the Supreme Court of the United States. Another bill, the Supreme Court code of conduct act would create a designated ethics officer that would process complaints that the Supreme Court justices violated code of conduct or federal law or has done something that the complaint into believes to be prejudicial to the administration of justice. The designated officer would then be required to publish the complaints against justices on the Supreme Courts website. Justice with judicial investigation panels, or a designated ethics officer would damage and debase the institution by encouraging frivolous and politically motivated attacks on the integrity. If you dont like the outcome of a particular case, attack the ethics, of a justice and force them to post on their website. Let me finish with the disqualification procedure for Supreme Court justices, adopting these measures would open the door to a tidal wave of disqualification notices in almost every important case. Round one would be litigation over what justices are eligible to hear the case. It is hard to imagine anything more corrosive to the Supreme Court which would be these motions alleging that other various justices are ethically, remised and because they accepted a meal distantly connected to someone on the case. But let me close with the provisions to the bill that i have described today seem to be animated by a perception which is at odds with 20 years of practice and Supreme Courts and the court of appeals. In my experience as someone who has argued in front of hundreds of federal judges around the country, the men and women on our federal bench are of the highest integrity, even when i disagree with the outcome of the particular case ive never doubted for a moment that these are judges that are striving to be there to do their absolutely godgiven bath absolutely godgiven best to interpret the constitution. Mr. Durbin thank you for inviting me to testify today, i am a professor of law at the university of virginia, and i specialize in constitutional law, judicial ethics and the federal court system. My testimony today will focus on Constitutional Authority to regulate the ethical obligation of the Supreme Court justices. I will be begin i will begin by making a point on which i know we all agree, as a constitutional matter the Supreme Court must retain decisional independence. Meaning, the justices can never be penalized for their votes in the cases before them. But, they courts decisional independence is not the subject of todays hearing. The subject of todays hearing is the justices failure to comply with ethics legislation, enacted by congress which explicitly applies to them. As well as Constitutional Authority and power to protect the integrity of the federal judiciary through such legislation. Whenever we have a constitutional question we look at the resources to lay. The text of the constitution, its structure and longstanding historical practice. All three confirmed that the congress has Constitutional Authority to enact legislation regulating judicial ethics. The text of article three of the constitution requires the creation of the Supreme Court. But it otherwise it is otherwise silent as to the structure and operation of that court and that is importantly different from the way that the consultation treats this branch of government, article one section five. It gives this Branch Authority over its own procedures. So the constitution is silent as to how the Supreme Court should be structured and delegated that task to this a branch of government under the necessary and proper clause in the cold. So back in 1789 that very First Congress very quickly enacted legislation to bring the court into existence. And to establish its operations. It did so in the judiciary act of 1789, which has special constitutional significance because it reflects the original understanding of the framers in the contemporaries. That act regulated every aspect of the courts operation. There is a quorum for the court at 4 00, there is a budget to and authorized to hire personnel it even assigned the justices to ride on the lower circuit of the country. And finally, most relevant to our conversation today, they require justices to take in oath of office that is almost identical to the over that i have taken, which is that they must treat rich and poor alike, and they must adjudicate cases safely and impartially. Just a few years after that act went into effect in 1792, congress established the first recusal statute which has for 75 years also apply to the justices. A History Lesson teaches us that for over 230 years and for as long as the Supreme Court has existed, congress has regulated vital aspects of its regulation including its ethical i get its ethical regulations. That remains true today when this congress controls the quorum, when it needs etc. But this congress has enacted laws that regulate the Supreme Courts ethical obligations. The recusal statute, the ethics of government, and the Ethics Reform act of 1989. All of these laws were enacted by members of congress who also take ao through to uphold the constitution. For hundreds of years, dozens of congresses have bought such legislation is constitutionally improper. To claim that congress lacked that authority is to ignore the constitution structure as well as longstanding practice. Nonetheless, the sum seems to be that Supreme Court justices should be accountable to no one. They stay at a remarkable preposition and a separation of powers. The constitution was carefully designed to ensure that no branch of government is entirely separate and independent from each other. It is the equally important constitutional conception of checks and balances. In the same federalist paper cited by mr. Diprete, goes on to say that each rigid government should have partial control over the other. That is because ambition must be made to counteract ambition. Some justices today are repeatedly violating ethics laws that applied directly to them. It requires action to protect the court from itself. For all the reasons ive Given Congress has the Constitutional Authority to enact legislation. I look for to your questions. Mr. Durbin each member will have five minutes to ask, i would like to start. It has been stated, i will say as a preface, that the reason for this hearing is because so many of us are unhappy with the decision of the Supreme Court, i would like to Stay Together for the record that my concern about ethical standards of court predate these hearings by many years. In fact 11 years, the first that i authored that was signed by several colleagues was made on 2012 in 2012, i wasnt waiting for this decision are any Court Decision in this decision in this issue i think its timely done and today, the allegation that we are out to get certain justices because they do not rule as we wish. I would say over the course of republican inquiry involving Justice Thomas and others i have heard virtually every justice named with some question as to their conduct and activities. Some will say that they were harmless activities and should not be no one should be punished for them and they would certainly not meet any high ethical standards but i would say that those that are in a book service and bound by ethical standards, codes of ethics are certainly used to this experience. Every year when we file our Financial Disclosure forms, and in my case my income tax returns, we are bound to have questions from the press and most of them are considered innocent, but those in Public Service professor frost, a man who submitted a letter for the record today, judge lou dig, said that of the issues that are before us, i quote him, incomplete disagreement to legislate ethical conduct, that would binding to the nondigital conduct of the Supreme Court. You have heard arguments otherwise. I think page 12 of your testimony which goes into the first act of congress, the judiciary act, belies this argument, that some on the Supreme Court are at a level where congress can address to address it. Could you comment on that . Prof. Frost yes, and i will say that ive been called to testify on this issue since 2006 ive been writing about it since 2005. Similarly to your point, this is not a new issue in relation to recent decisions. The separation of powers argument confuses me. I think we all know from civics classes on the separations of powers is of course a constitutional principle which means that the branches should have some separates years of conduct, and some separate rules in our constitution. But checks and balances are equally important. And the role of the congress is to establish the Supreme Court in sanchez permitted it is required. The Supreme Court of the United States is constitutionally mandated under article three. But there is no detail about how it is to operate. Because that was left to the congress of the United States under article one, section eight, the necessary and proper clause. Immediately, the congress agreed to do that. As it was required to do. The Supreme Court stepped aside, it is not chief roberts and his colleagues. It is not in the hands of chief Justice Roberts and his colleagues. When this Congress Says or passes a law that says they must recuse themselves, the judges and justices of our judiciary, the justices are not free to say that that justice that that law does not apply to them and they are going to sit on that case anyway. There is an implication in the recent statement of policy of ethics policies as well as some previous mens by the court, that it doesnt think that these laws bind it. I find that very confusing in light of the tax structure and long history of Congressional Administration of the courts. Sen. Durbin thank you, i would like you to address one issue, it appears to me in the early days of our republic ao had a different meeting that it has today. In this respect. It is in the swearing in of members of congress for example to have a pro forma exercise, it would seem that the words of the oce of the early days of the public were taken much more seriously so that when the congress set out the old for members of the Supreme Court the oath for the members of the Supreme Court, that they would solemnly swear to Justice Without i will faithfully and impartially perform all of the duties incumbent on me. Those words were written not by the court by but by the congress and enacted by the congress, dont you think that raises a question as to whether or not there is Clear Authority for congress to put together laws that are as specific as this, oath of office . Respectfully, no i dont. Prescribing those, is one prescribing the oath is one thing, prescribing rules internally is something else. It always takes somebody to apply and the way that the Court Functions internally is a matter to be left to the court. I am particularly reliance on recusal issues, and so the laws that replied to recusal issues across the board, applies to simply import justices as well. Supreme Court Justices as well. When their impartiality may recently called reasonably be called into question, they recuse themselves. It is a law of general application throughout the judiciary. We are talking about internal administration in dealing with their practices and the way that they administer their cases i think thats an entirely different claim. I recall taking the oh, but i do not taking the oath but it does not mean that the congress has the power to direct the internal business of the Supreme Court. Sen. Durbin senator graham. Senator graham his letter was signed by the entire court are all of you were of that . Mr. Vogel, do you think that that was a wise decision . Mr. Fogel thank you senator i said in my statement that i respected and i think it was sincere. I would grant that it was signed by all nine of the justices. Sen. Graham i want people to understand that the court as a whole has a problem with this whether they are right or wrong. Hon. Fogel i think it is a point at which they reach consensus. I am not in true micromanaging the court judges, but when you look at what other branches do versus the court, you say mr. Payne it is offer yes it is obvious that that they have a lower threshold. Thats correct. I would like to instill more Public Confidence and not vote for any of these bills and i think that they would be better off if we did that. Here is what i want to explain to people. In 1998 Justice Ginsberg donated to a signed copy of her decision in a case where you had to admit women to a state cool. It was auctioned off at a fundraiser supporting the National Organization of womens Legal Defense fund. I did not know that until this moment. Do you all agree that judge alito signed the Dobbs Decision and gave it to the susan b. Anthony prolife organization to raise money, all hell would break loose in this country . Do you agree to that ms. Frost . Prof. Frost would i agree if there was sen. Graham if Justice Alito autographed the Dobbs Decision, and all hell would break loose. Prof. Frost i agree that would be a problem and i think thats why congress should play in active role today. Sen. Durbin why didnt sen. Graham why didnt hell break loose in 1998 when Justice Ginsberg signed the proclamation for the womens defamation defense fund. Justice ginsburg, one of the greatest people to serve on the Court Received an award from the National Democratic womens club. Can you imagine what would happen if Justice Roberts received a award from a republican womens club. I think we might read more about it. Justice ginsburg was given a one milliondollar award a annual cultural and philosophy award in advancing ideas and philosophies for the world. They gave her 1 million to give to other people, she didnt receive the award personally. Does anyone have a problem with that . Does everyone have a problem with that . Well, im going to assume silence means yes. The point we were trying to make here and that i think is that this effort to come after Justice Thomas is, i think organized by the left and i think this moment where we could find Common Ground is being hijacked, i take senator durbin at his word, hes been concerned about this for a very long time. The point is the game has been played differently and now we are in a moment where this court is under siege and under siege in multiple ways. That is a problem that i think most of us have, what are the lines to be drawn and who is the referee. Does anyone know anything about the Organization Demand justice . Negative response, from all members. Do you know where their money comes from . Negative response, from all members. Are you aware that they spent over 1 million in ads pressuring Justice Breyer to resign . Nobody knew that, right . So if youre worried about dark money, and i think thats a legitimate thing to be worried about, lets worried about it lets worry about it across the board. My point, mr. Chairman, is the efforts by senator schumer to ghost to the court and threatened the court with its very existence, the efforts by people to intimidate justices, to decide cases before the cannot be ignored. And here is what i worried about here is what i worry about the most. It is not about trying to upgrade the ability of the court to be more transparent it is about an effort to destroy the legitimacy of this conservative court. So to the panel, if you have any ideas or recommendations about how the court can be more transparent, count me in. That makes perfect sense to me. But when you look at the history of the way things have happened with the work, when a liberal justice does something, the reaction and in the American Media is completely different. Often times in articles about george mason omitted a lot of schools that did the exact same thing. And i would say to Justice Alito, do not sign a copy of the Dobbs Decision and give it to the sba to raise money. You would not receive the same treatment if you did what Justice Ginsburg did. Sen. Durbin thank you senator graham. The judicial that has constitutional relevance to our ability to legislate. Prof. Frost i think its an important distinction. We have as to the administer ration of justice that we have the authority to pass laws, create correct . Prof. Frost yes over judicial administration. It encourages justices to testify regarding the administration of justice. And that would not be there if it were appropriate to legislate the department of justice . Prof. Frost agreed. And these are all laws passed by congress that applied to the court and in some cases using the word justices specifically which is a term that applies to Supreme Court justices only, correct . Sen. Durbin yes prof. Frost yes. Has it ever been challenged in the time its been put in place . Prof. Frost not to my knowledge. You have the role that judicial congress was given by statute by congress to administer these laws and in the context of administering these laws under the chief estes, were you ever told that these laws were unconstitutional, or that the Financial Disclosure committee should not enforce them . Note, senator, the justices complied no, senator, the justices complied and they made an effort to. If there is a Financial Disclosure violation, then the determination as to whether that violation was willful and is subject to penalties is referred to the attorney general for determination . Thats correct, the committee looks at the nondisclosure or incomplete disclosure and determines if it is something that can be remedied. Usually the way that Committee Functions is remedial. They try to get the filer to comply with the disclosure neri the disclosure environments. But they have the power to make that referral. They are able to do that if there is reasonable cause for this person to believe that there was a willful violation but the willfulness is determined by the attorney general . Hon. Fogel that is correct. Yes, sir. The committee tries very hard with the filer to make sure that every effort is made to get a proper filing. It is encouraged for judges and justices to bring concerns about Financial Disclosure for a confidential opinion saying this is what you need to do. Hon. Fogel that is correct,. Justice thomas did not do that . Hon. Fogel i do not want to comment on Justice Thomas. But usually they are expected to do that. Has it ever been suggested that it was unconstitutional for congress to require that the forms be filled out, that if there are omissions in the forms, that that be referred to the attorney general and that a civil fine could be imposed on a justice for failure to file . 4 hon. Fogel not to my knowledge, sir. Are you familiar with agency capture . Yes. Have you read about it and administered of law and economics . Yes. Hypothetically if there were an organized effort to capture and the meaning of regulatory agency, capture, capture the court in such a way that it was beholden to and ruled in favor of big central interest, that hypothetical, if it were true, would any ethics concerns be raised by justices consorting with individuals or a sorting with groups consorting with groups in that scheme . Mr. Payne and not hypothetical it could be a potential conflict event in that hypothetical it could be a potential conflict of interest. Sen. Durbin thank you senator whitehouse, senator dursley. The constitution purposefully insulated the federal judiciary from political control, it is important that congress exercise constitutional duty of oversight. Judges are expected to comply with high standards of ethics and integrity and it appears that there needs to be better oversight. I have been a longtime advocate for transparency and accountability because i think that the publics business should be public, i am a proponent of government oversight and for the government to be good stewards of taxpayer dollars. I promote a greater response ability at all levels. Ive worked on bills to root out waste, fraud and abuse to foster integrity and accountability especially in the federal judiciary. Unfortunately, democrats and their leftwing dark money Interest Groups as well as their allies in the liberal media have engaged in a crusade to threaten , pack and smear this the courts, then they targeted specific judges and justices that are implementing a liberal agenda that they cannot ram through congress. The goal is to cast doubt on certain judges and justices, all because the left is opposed to recent court rulings. That is what this hearing is all about, undermining the American Peoples trust in our Judicial Branch of government, todays hearing is just one lyrical theater to delegitimize our judicial system, particularly the Supreme Court. Decisionmaking should be based on law and jurisprudence. It must not be subject to the whims of Public Opinion and clamor. Did not result in the threat and did and intimidation. As this relentless battery of certain members of the judiciary you were doing the bidding of the liberal graham clam clan is coming at a tremendous cost. They face harassment and public intimidation in their private life, despite federal law which prohibits picketing or parading and judges residents and justices and their families often endure organized protest outside of their homes, judges and justices and their families face real families to their safety and security. Unfortunately, the whirlwind democrats at the steps of the Supreme Court have been released against our judiciary. Im going to ask mr. Depree and judge casey two separate things. The first is for mr. Depree, federal judges are required by law and the judicial congress to comply with these disclosures, and ethics guidelines, can you please give us a brief overview of the constitutional framework in which these rules and guidance operate . And for judgment casey this question, how is this a different from the lower court expectation to comply with these rules . Thank you for the question, senator grassley. There are a number of things that Court Justices must disclose, and other things such as recusal and disqualification. In some cases statutes act on the justices themselves in those cases they concerned what all of us would can sitter noncourt would consider noncore duties. It would be permissible for congress to regulate duties in that respect. There are other statues where what statutes where what congress has done is effectively set regulations for the majority of the federal judiciary but it is not directly controlling on the Supreme Court. Nonetheless, the Supreme Court as an exercise of discretion has agreed to follow and respect and comply with those types of guidelines. So i think that constitutionally speaking, that congress, excuse me, the Supreme Court be regulated in two ways, one through direct regulation and they noncore article three activity and the other would be a nondirected regulation were congress regulating the directs the lower court and justices agree to abide and comply with those requirements. I agree with mr. Deprees betrayal of how the system works. As to the mechanics, i think that the rules of general application that applies to all courts are applied to judges and justices. And as was when it out before, it is an iterative process. You file your report, your form, and then they get back to you. Those that reviewed the form and ask for greater detail when necessary. And it generally is provided. The one feature that was alluded to before, about the attorney general making a determination of willfulness, i dont know that that has ever been litigated and if it were litigated as to the Supreme Court justice i think it would be found to be unconstitutional. That is not anything that i think has ever been tested. Certainly not on the Supreme Court level. Sen. Durbin thank you senator grassley, senator klobuchar. Sen. Klobuchar i believe they did the right thing by disclosing the requirements that applied to judicial officers including the Supreme Court of the Supreme Court justices arms will not bound are still not bound to the code of conduct. Unlike all other federal judges, the code requires that the judge uphold the integrity and independence of the judiciary and avoid impropriety and the appearance of impropriety. How is a formal enforceable code of conduct help ensure that the rules are consistently applied to every other judge in the federal system . Who is abounded to that for 37 years, both the state court judge and federal court judge, it really is your northstar, it is what you look at in terms of the values that you want to up hold a judge. It is something that guides your conduct and its something that public can look at and say this is what we expect of our judges. Do you agree with the judge who was just quoted by senator durbin who wrote the committee to say that if the Supreme Court does not subject itself to the highest possible professional ethical standard, it depreciates its power . I agree with that. I think that the Supreme Court my hope, the reason i came here today is i hope that the Supreme Court that the congress will adopt the code of conduct. It needs to moderate be modified in some respects but the adoption of a formal code is an issue that i hope that they will address. Sen. Klobuchar i appreciate that and your thoughts and your thoughtfulness. Professor frost, you have mentioned the ethics and Government Act of 1978, for reasons that congress has passed laws in the past based on the constitution, and the operations of the court. Is that right . Prof. Frost thats correct. Sen. Klobuchar i wasnt planning on asking questions until you dissed the court of the agriculture. We are 100,000 employees that serve the people of this country, that department which has jurisdiction of whatever our farmers do for ranching, farming and countercyclical payments, they have ethical laws in place, it would be the opposite when i think of the power of this court and when i think of what ms. Frost said, i think there is every reason that this court should have ethical rules, like defining the department of agriculture and we dont look that look at that as a bad thing we look at it as a good thing. I want to be clear on the record, no disrespected no disrespect to the to permit about culture. Sen. Klobuchar i think a lot of people in the middle of the country noticed it. My point was that the provision of the bill and similar types of bills was that he ordered the Supreme Court to engage in essentially a rulemaking rulemaking function. Again analogous to what this congress would say with either the department of agriculture, the department of defense, you name it. My point was simply that as a matter of constitutional structure the Supreme Court is differently situated in a profound and fundamental way from article to executive Branch Agencies which can be vested with rulemaking power under the constitution. Article three cannot. Sen klobuchar this gets to the core of the question of being able to pass a law or do anything. Prof. Frost thats article three of the constitution is very short, but it leaves to congress that essential role of administering the court and congress has always done so. So to question that authority today is to question 230 years of consistent practice where congress has legislated in the court. Not to controlled this decision that is clearly offlimits but every other aspect of the court is controlled by congress for what it meets. Sen. Klobuchar why should there be another office separate to ensure that this office has the authority to conduct independent factfinding . The only way that any current or future ethics rules will work if it there is a way to enforce the rules and for a way for Supreme Court justices to understand how they apply. You need expert advice and to gather facts in the circumstances where there are potential violations that need to be resolved. Sen klobuchar ms. Frost, woody think of that . Prof. Frost i would agree with mr. Paynes analysis. So often these are dug up by journalists and do damage to the court if there were better ways to identify these problems, we can avoid this. Sen klobuchar how would you handle that, because youve been trying to thread the needle . Hon. Fogel i agree with the other witnesses, i think there are ways that that they could have independent impartial advice about ethical questions. It is kind of a black box as i said in my written testimony there is a lot of sources of rules that they follow. No one knows what they are and i think if they had an internal resources, and i am not alone in suggesting that they get a roop of experience retired judges whose integrity is unquestioned. I stress retired judges because then they are not subject to the problems that the circuit judge or district would have. Most say i have a question and i would like your advice. What do you think, somebody who is independent and doesnt have skin in the game and could they, i think this is ok or thats not ok. I think thats a modest that for the court to take. Sen klobuchar im sure we can talk about this in the future but we worked together well including when you were attorney general. And like to go to the video please. I would like to go to the video please. Committee was would please come to order. Judge. It is a tough day and tough night for you, i know. He asked, do you have anything you would like to say before we begin, i understand that your preference is, which is totally and completely understandable that we go one hour tonight, 30 minutes on each side, am i correct in that . Thats right. Pres. Biden is there anything youd like to say . Senator, i would like to state unequivocally, uncategorically that i deny every allegation against me today, that suggests in any way that i had conversations of a sexual nature, or about pornographic material with the anita hill, that i ever attempted to date her. That i ever had any personal, sexual interest in her. Or that i in any way ever harassed her. The second, and i think more important point, i think that this, today, is a travesty. I think it is disgusting. I think that this hearing should never occur in america. This is a case in which this flees, this dirt was searched for by staffers and members of this committee. It was then leaked to the media. And this committee, and this body, validated it and displayed it on prime time over our entire nation. How would any member on this committee, any person in this room, or any person in this country would like fleas set about him or her in this fashion. Or this dirt dredged up and this gossip and these lives displayed in this manner. How would this court like it . The Supreme Court is not worth it. No job is worth it. I am not here for that, i am here for my name, my family, my life, and by integrity. I think that something is dreadfully wrong with this country when any person, any person in this free country would be subjected to this. This is not a closed room, there was an fbi investigation. This is not an opportunity to talk about difficult matters privately, or in a closed environment. This is a circus for national a circus a national disgrace. And from my standpoint as a black american, as far as im concerned it is a hightech lynching. That was 32 years ago. I am reminded as i get older that not everybody had the same experience or memories that i had. That was one of the searing emerys that i have had about Supreme Court confirmation hearings. And i think it provides important context for todays hearing. The truth is, as senator kennedy says, starting perhaps with the board nomination, that members of the Supreme Court when theyve been nominated for the job are subjected to relentless campaigns of harassment and intimidation. Which, as Justice Alito recently pointed out can lead not only to intemperate attacks like the Senate Majority leader made against senator gorsuch and judge judge gorsuch and judge kavanaugh im name in 2020, it can lead unstable individuals to decide that they are going to conduct an assassination. Assassination of these members of the Supreme Court. So things have become terribly out of hand. Judgment casing, you and mr. Depree both talked about the separation of powers, ive looked back into the rules of the United States senate, our ethics rules by which we are governed, and they are rules that are set by the senate itself. How do you think the senate would react if the United States Supreme Court said, we do not like the ethics code of senators or members of the house of representatives. With the same principle of separation of powers, and coequal branches of cover of government apply in that circumstance . Yes, of course it would, senator. This body sets the rules for its conduct, and at this in the same way that the court sets the rules for its conduct, the executive the president and Vice President said the rules for theirs. Laws of general application do not apply . Of course they apply. When youre talking about particular rules relating to a particular branch of government that is set by that branch of government. Mr. Depree, i agree with judgment casey and id like to recognize the importance of the separation of powers, the ports of the separation of powers is not an academic concept invented by law professors, it is a concept that is structurally vacant to our constitution and absolutely crucial to preserving not just the independence of this of each ranch, and ensuring that the judiciary could act independently but to ensure individual liberty. The things we discussed today obviously have in terms of granule information about data disclosure and the like. But at the end of the day what is on the table is the concept that is absolutely fundamental to our constitutional structure and must be preserved. I think Justice Scalia pointed out among others sen. Durbin the senators time has expired minutes ago. Senator lee. Sen lee thanks to each of you for being here. As we hardcoded moments ago when Justice Thomas was in this room, in front of this committee, nearly 32 years ago, he had observations about confirmation proceedings. He described those proceedings as quote, a hightech lynching for uppity blacks who deign to think for themselves or have different ideas. You will be lynched destroyed caricatured by a committee or Senate Rather than hung by a tree. More than three decades later that observation remains tragically relevant. The continued attacks on justest Justice Thomas and his wife over the last 31 and a half years are part of a sustained attempt to discredit an honest man and a principal jurist. They cannot tolerate or accept the fact that one of our greatest american Success Stories that rose from poverty in the segregated south to become not only one of the longest serving Supreme Court justices, but one of the most influential jurist our country has ever known, it is the story of a black man who happens to be conservative. Most leading the charge against Justice Thomas would have us believe that he simply could not think for himself. That he cant think for himself. So his wife, and his white friends must tell him what to think. And the truth is, the left simply disagrees with his decisions and the decisions of our current Supreme Court. They obviously cannot persuade the American People to adopt their regular radical policies so they are working to destroy the courts accountability and intimidated and intimidate the justices. They are making clear that the justices that disagree with them will pay a price, its surprised that the radical left is determined to ensure is very high. It is all a dog dish shakedown. Nice Supreme Court you have there, america. It would be a shame if something happened to it. Dont just take my word for it. Remember what senator Chuck Schumer did in 2020, and called out specific Supreme Court justices by name referring to gorsuch and cavanagh by name, telling them youve released the whirlwind and youve paid and you will pay the price if you move forward with these awful decisions. In august of 2019 one five Democratic Senators including or members of this committee submitted a dimitrios brief to the Supreme Court of the united date United States. In which it leveled a threat, change according to what we demand otherwise the court will have to be restructured in a way to reduce the influence of politics, since the leak of the draft opinion one week from today, justices have endured protests at their childrens schools. There was an assassination attempt against Justice Kavanaugh. I dont think i dont mean all of them the dobbs jordi justices only the dissenters in that case have been spared the machine as Justice Alito observed, it was the dobbs leak that made Justice Alito and his colleagues , it was rational for them to believe they might stop the decision by telling on us. With that conversation fresh in our mind, Democratic Senators are requesting to defund the protection of families unless they adopt what those senators demand. These tactics are meant to harass and intimidate the court, specifically the justices appointed to the court by republicans and force them to impose a less radical policy agenda on the american agenda. Not through the legislative process but through judicial fiat. Through outlets like pro publica, you would think that they are universally reckless. Democrats are universally conscientious. That bias is apparent in what receives coverage and what does not. One justice appointed by a democratic president failed to recuse when her husbands law form had cases before the court. One failed to disclose her husbands income. One traveled for free at the homes of private attorneys whose firms have cases before the Supreme Court. You would not hear any of that from the biased media or Congressional Democrats who point to republican appointed justices when demanding reforms to the courts. I raise these examples not to accuse the court of being broken. Let me just finish my statement if i could, i raise these things only to point out that Senate Democrats, leftwing advocates and activists in their publicity as americas Mainstream Media establishment, they never tell the complete story. By telling only half the story they reveal their true purpose, which is not to tell the truth but to punish their political enemies. We cannot afford to delegitimize the court in this way. It must stop, thank you mr. Chairman. Thank you senator lee. We pass the judicial privacy act in the last congress that led to the murder of judge esther salas are there home. That bill was held up for nearly a year by a member of the other party. Senator . Thank you. The American People need to have confidence in government officials in all three branches, serving the public interest, not personal interest. The Supreme Court as i think this hearing has demonstrated, suffers from a lack of transparency and accountability when it comes to ethics practices. This is true for justices appointed by president s of both parties. This is not a democrat or republican issue. This is an issue of transparency, accountability and confidence. Last year, i led the successful passage of the courthouse ethics and Transparency Act, joined by senator cornyn, many republicans, it was adopted unanimously. Its symbol requires federal judges on the Supreme Court to promptly report when they sell securities so the public is made aware of potential conflict due to financial interest. Members of congress have had to comply with the same requirements, the major all federal judges have to play by similar rules. The Supreme Court is subject to weaker ethical obligations than other branches. And want to explore those differences now. One obvious difference between congress and the Supreme Court is the court has no formal mechanism to provide guidance, investigate allegations or enforce ethical constraints on the justices. The chair of the ethics committee, ive seen firsthand the value of similar structures. Why has the court failed to create a similar ethics body . Could it do so at any moment if it chose to . It is unclear why the court has decided not to establish an internal body the basic principle with rules to have an enforcement or Compliance Mechanism internally. They could create this immediately. All they need is to establish an office within the Supreme Court. They have experts and professionals who can provide advice on the existing rules and handle any new rules that are enacted. If one were seeking guidance and you turned to your colleague rather than a professional office that was responsible for providing uniform into impartial advice, would you be practicing at the highest level in terms of compliance with ethics regulations . No. If you rely on colleagues or anyone who is not providing guidance across the board, the advice would not be consistent, it will not be correct. In his response to the letter, chief Justice Roberts noted the Supreme Court adopted a resolution in 1991 after complying with Financial Disclosure regulation. The court has declined to adopt a similar resolution that would bind justices to the judicial conferences code of conduct. Why has the court agreed to comply with Disclosure Rules but not its broader ethics rules and could the justices find themselves bound to the code of conduct if they chose . Again it is unclear why they decided to only bind themselves to the regulations. I pointed out that the ethics in Government Act applies to the justices so they do not have the option to opt out. But they could easily establish a code of conduct for themselves to have rules that are applicable to them and can be enforced. Is there any distinction among the other borders of the article three federal judiciary in terms of their reporting requirements, disclosure, and their ability to have conduct reviewed by an independent enforcement body . Is there any variation among the rest of the judiciary . Lower court judges are bound by the same requirements but they do have the bodhi to provide ethics advice that is Available Online, they said its clear what the rules are, one may apply and what happens if there is no compliance. Chief Justice Roberts said it would be important for the judicial conference to supervise the Supreme Court. At the same time he believes that the court cannot be constrained by the contents raised here today. In that view, the court would be able to enforce its own ethics requirements, do i understand that . Yes, that seems to be the position. It seems that is the equivalent of saying they should be able to grade their own homework. I think congress can legislate here if necessary. It may not be the most desirable outcome, but it is possible. In fact, we pass to ethics and Transparency Act by a voice vote last year. Colleagues on both sides of the aisle sponsored the bill. Canoe between how we can reconcile this legislation with a key principle of separation of powers . Yes, were not talking about interfering with the courts decisional independence or penalizing justices for their votes. We are talking about the checks and the balances that exist for all three branches where Congress Plays a role in establishing the administration of the courts, the constitution requires that as part and parcel, that establishes ethical guidelines. I would argue enclosing that if the most senior members of the executive branch and the legislative branch and the Judicial Branch are all subject to disclosure and reporting and compliance and enforcement obligations, for just one quart of nine justices to exempt themselves puts us at a risk of the highest court having the lowest standards of the entire senior members of all three branches. Thank you, mr. Chair. Senator kennedy . Thank you to all of our witnesses who have joined us today. Mr. Payne, we start with you, sir. You are kind of in the middle. You work for the Campaign Legal center, is that right . That is correct. Is your website Campaign Legal. Org . Correct. Does not the front page of your website say and im going to quote here, im going to get it right, the current u. S. Supreme court is a threat to our democracy . The current u. S. Supreme court is a threat to our democracy did i read that right . What i can say is that on your website . Here it is right here, as big as dallas. What they referred to as the Voting Rights cases, the Voting Rights organization that fights for all americans rights to vote. If you click a bunch of times to find that explanation. I want to make sure i read that correctly. A few months ago, mr. Payne, you retweeted the following statement. Some justices are politicians in robes. Who thrive in a system where access and influence are for sale. Some justices are politicians in robes who thrive in a system where access and influence are for sale. Now that is a pretty bold statement. Is that a news article . No sir, that is a retweet. You tweeted this out. Tell me which justices are for sale . I dont recall that tweet. Here it is, november 21, 2022. Can you tell me which justices are for sale . No. Are any of them for sale . No, the problem is the American Public has a perception i want to establish the point first. You tweeted this out. Do you believe that some justices are for sale . And if so, which ones . No i do not believe justices are for sale. Can you provide more context . Ill get you a copy but there it is. Triple check it. He also said less than a month ago that john roberts, you retweeted this out, john roberts is a disgrace. You do not call him chief Justice Roberts, you called him john roberts. You retweeted this. Know, senator, i did not retweet that. Can you provide a copy to me now . Can you tell me why you think he is a disgrace . I did not say that, did not retweet that. Ok, maybe twitter got it wrong. Someone got wrong. The unstated premise of all of this, sometimes it is stated, but the unstated premise is that some justices have been bribed. Lets just cut to the chase. Ok . Now, let me stay with you, mr. Payne. Let me go to mr. Vogel. I dont want to just pick on you. You can look it up on twitter where you said those things. On april 4, 2019, the American Civil Liberties in paid for Justice Sotomayors trip to puerto rico. Have you ever been there . Is it expensive . I keep forgetting. Well, it depends when you go. How much do you think it cost to go down there . Depends whether you fly first class or economy. If you fly first class. A couple thousand dollars. Do they have courses in front of the Supreme Court . All the time. Do you think the return to bribed the justice . No, i dont. I dont either. But that is the unstated premise of all of this. All of these articles about Justice Clarence thomas and the chief justice of the United States and Justice Gorsuch, who sold interest in an llc to a 2828 democratic donor. May i Say Something . I think there are two things going on here today. I think there is a political conflict which as i said earlier, it is very intense, hyperpartisan, both sides have things to say. And then i think there is an ethical issue. When you accuse people of accepting bribes pulled on, im not accusing anyone of being bribed. Im not. Some people are. The reason i am here is there is an ethical issue as senator graham said, it would be good for the court to think about in terms of being transparent, that is the only thing that i care about. There is a lot of political backandforth, its very interesting. Im interested as a citizen of the United States, but i think the most useful thing that this or any committee can do is think about how are you going to do that in the context of i have Great Respect of telling to justices if they vote in a way they dont want, they will pay the price and reap the whirlwind. And you have another one of your witnesses here tweeting out stuff saying quote some justices are politicians in robes who thrive in a system where access and influence are for sale. He said they were bought like a sack of potatoes. Im not going to comment on that, that is not anything i had anything to do with. Did i hear the gavel . Thank you, senator kennedy. Im sorry, i got it wrong. Senator . A word before you get started, members are coming and going. We have two roll call votes so please understand, it is not disrespectful. Thank you chairman and thank you to the witnesses for being with us today. You know, as i look at this exchange, the fact of the matter is the American Public want action. The American Public is disgusted. They are disgusted with what they see in public life and the degrading of standards and conduct that would never be tolerated in their own workplaces. And in their own private lives. And they want us to provide that action. The Public Confidence in the Supreme Court has plummeted. We can go back and forth as to what the cause is, but a lot of the American Public are increasingly seeing the justices as politicians in robes and now after the revelations out of Justice Thomas, as corrupt politicians. They want an investigation, they want the truth. And the ones who are victims here are not only the American Public, they are the judges themselves. The lower courts. Year in and out. Federal district Court Justices, appellate Court Justices are filling out these forms rigorously, accurately. And now, the nations highest court is seeming to put itself higher than the law. And that is unfair to the other judges who are playing by the rules. And in fact, it is tarring the entire judiciary, undermining that branch of government. It has no army, no police. All it has is its legitimacy. If you undermine that legitimacy, confidence and trust in the American People, there is nothing left of our judiciary. And the greatest democracy in the history of the world protected by judges who are supposed to be independent and impartial is going to suffer irreparably. That is why think we need a proper investigation. It should be done by the department of justice, because there are allegations of criminal wrongdoing, violations by Justice Thomas. Of the disclosure and law, incomplete, inaccurate reporting as well as in disclosure. In absence of the investigation by the department of justice, we have a role to play in congress. But the judges have a role to play in protecting themselves. And what chief Justice Roberts has done in refusing to come before this committee is judicial malpractice. It is a diss service to the court, to his colleagues. Who sit there every day, sometimes in danger and always under the microscope of public scrutiny. So judges ought to be angry about this crisis because it affects our entire judiciary. I want to ask judge vogel in your experience although you are a retired judge, my view is judges should be not angry and fearful, do you agree . Let me ask the question this way, senator. Senator, it is true, i have a lot of respect for chief Justice Roberts. He was a great guy to work with for the seven years i worked with him. His intentions are good. I think that the rank and file judges to whom you alluded earlier have often felt that they would like the court to be a little more robust in asserting itself in this area of ethics and transparency. That it has been not forthcoming in some ways that i think it could be. I am not saying there is anything wrong. Im not here to be partisan or get into that debate, but i think it would be good for the Public Confidence. It would be very good for Public Confidence and the confidence of the judicial rank and file that you were talking about if the court were more assertive in standing for ethical compliance. I think this is on the court, i think the court can do it, weve got smart people. There are ways they can do it but do not compromise decisional independence or institutional independence. Some judges are frustrated that that has not happened. I have talked to a number of judges who are more than frustrated. They are limited. And i believe their views reflect a growing feeling among the judiciary. All i can say is i urge those judges to stand up and speak out, because they can help protect the judiciary as an institution, thank you mr. Chairman. Thank you. Senator cruz . In 1991 Justice Clarence thomas appeared before this committee in one of the most disgraceful performances in our history. Justice thomas describe the treatment he got from chairman joe biden and Senate Democrats as a hightech lynching. It is sad to see 30 years later this committee is again engaged in the same despicable tactics. Senate democrats and the media are engaged in a twofold Political Campaign. Number one, to delegitimize the Supreme Court of the United States because they are angry that there are a bunch of authoritarian constitutionalists on the court. But very directly, this is a Political Campaign designed to smear Justice Clarence thomas. Im the reason is simple, the left despises Clarence Thomas. They do not despise him because he is a conservative, the left despises him because he is a conservative africanamerican. Here is what Clarence Thomas said at the confirmation hearing. He said if you are a freethinking africanamerican quote you will be killed, destroyed and caricatured by a committee of the u. S. Senate. In three decades that has not changed, its gotten worse and to be clear, here is the left. I point to one article three weeks ago, democrats need to destroy Clarence Thomas is reputation. They will never impeach peace him, but so what, make him a metaphor for every insidious thing the far right has done to this country. That is with the left is trying to do and i will tell you if you look at the next poster board, the left has repeatedly attacked Clarence Thomas with a racism, this is a magazine cover that shows Justice Scalia, every bit as conservative as Clarence Thomas, but he is per trade as the master and Clarence Thomas bigoted attack portrayed as shining his shoes. I will show you another one to give you a sense of the racist vitriol from the left. Here is a caricature of racist of Clarence Thomas, lawn jockey for the right. This is the bigoted contempt the left eye is. I will show you another magazine cover. Offensively this is how the left views Clarence Thomas. It is important for people at home to understand, this is not about judicial ethics, you can take those down this is not about ethics. This is not about rules that should apply to justices across the board. We can have a discussion about that. This is about applying a double standard to Clarence Thomas and spewed the attack that my democrat colleagues repeat is clearance thomas stayed at the Vacation Home of a close friend, a successful businessman. He flew on a plane and went on his yacht. Well, if that is the standard, going in traveling and being paid for by others then guess what, every Supreme Court justice has done so and done so in greater numbers. Justice thomas was appointed and since then he is taken 109 reported trips and 500 international trips. Justice ginsburg was appointed in 1993, 2 years later. In the time she was on the court she took 157 troops including 28 international trips. Yes or no, do you think she was corrupt . No. Nor do i. Ruth Bader Ginsburg was not alone. Stephen breyer appointed in 1994 took 233 reported trips including 63 international trips. Do you think Stephen Breyer was corrupt . No. Nor do i. I would point out Justice Kagan has done the same, Justice Sotomayor and yet none of my democrat colleagues care because this is a political attack directed at a justice they hate. And by the way, lets spend a moment focusing on Justice Breyer, a delightful human being. Someone i know personally, someone who served decades on the court. Justice breyer repeatedly traveled on the penny of a prominent democratic billionaire. The pritzker family. Now jb pritzker is the democrat governor of the state of illinois from which our chairman hails. I would be shocked if the chairman of this committee has not had mold with the pritzker family. Justice breyer was a longtime member of the board that awarded the architecture prize. What did that mean . That meant he traveled on the dime of these democrat billionaires in 2019. He traveled to new york city and vancouver and paris. In 2018, justice prior briar traveled to new york, spain and france. He traveled to norway, sweden, denmark. In 2012 he traveled to beijing and london. All of this paid for by the pritzker foundation. None of my democrat colleagues are mad about this and let me be clear, im not suggesting that he is corrupt what i am suggesting is that this committee is corrupt because this is a kangaroo circus and we had 15 Senate Democrats including six members of the committee sent a letter to the Appropriations Committee threatening to cut off the funding for security of the Supreme Court. The left is willing to threaten the lives of the justices. Justice alito this weekend in the wall street journal said that the attacks directed at the justices are making them targets of assassination. This is disgraceful. Every senator who signed this letter should be embarrassed. I ask unanimous consent but this letter be admitted into the record and that the interview with Justice Alito from this we can be entered into the record. This attempt to delegitimize the court is an attempt to personally smear Clarence Thomas. It is dishonest and everyone in the media echoing it is participating in a shameful reprise. Of 1991. Senator . Thank you mr. Chairman. We have heard that every other federal judge, members of congress and legislative and executive branch employees are bound by strict ethical rules. But this extends beyond government into the private sector where employees from the ceo to the sales floor are subject to strict codes of conduct. For example, home depot tells all employees that a conflict occurs when their private interests even appear to interfere with the companys interest and the perception of a conflict can be just as damaging. Home depot makes it clear that gifts of personal travel for associates or family members are never allowed. Ally bank explains that even personal friends gifts can appear to be improper if the friendship resulted from a business relationship involving the bank where the perceived preference relates to business involving the bank. The bank tells employees to ask themselves the following questions when evaluating gets. Does the person or entity frequently provide or offer gifts to me . Is the gift extravagant or otherwise not reasonable and customary . Would i be embarrassed for everyone to know about the gift . Similarly, autozone tells employees that we do not except gifts, meals, entertainment, weavers or anything of value that may inappropriately influence or appear to influence our judgment. So as we have seen today, the Supreme Court ethic rules fall short of the binding rules of the executive and legislative branches and those of the private sector. These companies have their rules online for the world to see. Wouldnt it restored faith in the Supreme Court if it had a set of explicit binding ethical rules for the world to see . I completely agree. I think the code of conduct for United States justices with all the other federal judges to follow is online you can find it anytime you want. All state courts have something similar Available Online and i think it is potentially reassuring to the public, given the political back and forth, i think the answer is yes. Thank you. Professor frost, the Supreme Court is a huge impact on the daily lives of every single american. For example, the ruling in dobson overturned roe v. Wade has led to chaos over reproductive care. The decision gutting the Voting Rights act resulted in over a dozen states enacting laws making it harder and harder to vote. The Supreme Court decisions have also sanctioned unlimited corporate spending in elections and diminished the quality of the air we breathe. Professor frost, shouldnt a group of individuals with immense power be held to at least the same ethical rules as all other judges . Yes, i agree. I want to get to the personal hospitality. That was a huge exception to the Disclosure Requirements before the judicial conference, as senator whitehouse has prompted, they clarified personal exceptions. The judiciarys rules were anemic at best. If there is even an argument however unconvincing that trips valued at hundreds of thousands of dollars might be allowed, it shows how far we are from a strong and binding code of ethics. That is what the Supreme Court needs. If the court will not adopt one on its own, we must impose one on them. Basically for panelists, the highest court in our land should hold itself to the highest ethical standards. It is so clear that that is not what is happening today. What is so hard for our Supreme Court to adopt a code of ethics. It could have done so 11 years ago, 10 years ago when our chairman frost first brought up the subject. What is so hard for them to adopt the code that every other court has to abide by . That is what we are facing today. I can see why the public has severe questions about the confidence they have in the Supreme Court. Which seems to hold itself about any other court in any of the rest of us in terms of ethical behavior. Thank you, mr. Chairman. Thank you senator. Thank you mr. Chairman. Professor frost, i enjoyed your testimonies. I thought they were speaking to the importance of trying to find balance. The Supreme Court is probably one of the most important parts of our government. It is independent to rule, which is critical. I appreciate mr. Dupree injecting skepticism about how anything that we do can be exploited by this very Political Institution called congress, that is somewhat problematic and something i would trade on lightly. I enjoyed your testimony for that reason. Can i ask you there are legitimate concerns that mr. Depree brought up but i wonder if you can talk about this balance between the separation of the powers and the checks and balances which you spoke to so eloquently, thats really what im looking at myself. Unsurprisingly, a lot of politicking in this hearing. But i think america wants their Supreme Court, this is something i learned at law school if i learned anything, there was this idea of the appearance of impropriety and how problematic that is for a lawyer, not to mention the highest court in the land. As was said and some of the early writings, the Supreme Court has no army. It has its power in the consent of the governed. These are very fundamental ideals and i was wondering if you could help me with that balance . Yes and thank you for the question. I hear the concern that we would not want ethics rules used as a way to penalize justices for decisions. I started my testimony by saying independence is vital. If the absence of rules that is harming the court and leading to the problems that we can see today in terms of public perception. If ethics laws were strength or passed by congress, they would apply to all justices. If there was transparency in the court and dealing with ethical problems, they would not have reporters publicizing justices problems. We have transparency about each and every justice, whether they were abiding by the rules and what should happen. I thing is the absence of laws leading to the problems of political attacks on justices. If we had better legislation we would see less of that. What about concerns you would have when we enter into this space, that is not something we regularly do when writing legislation. What are reasonable concerns that you would have about what that legislation is narrowly tailored to the end that we are looking for . It would be best for the Supreme Court to draft a code of conduct for itself. I agree with others on the panel. The code of conduct for the lower courts which the Supreme Court says it follows or uses as guidance, needing it to be tweaked or changed in various ways to deal with the nature of the Supreme Court. The Supreme Court should come up with a code and when that address for itself, legislation that could tell the court you must do this now because we have been waiting since elena kagan testified in between 19 that they were considering doing it and they get to take action. It is stunning, i dont want to ask you to speculate, clearly americas fate in their court on both sides, people identify as republican or democrat, theyre losing their faith in the institution. I am a nextgeneration guy and maybe like many in my generation, we took for granted the rocksolid nature of our democratic principles until we started seeing them including the capital being overrun for the second time in history. The word of 1812, the word of 1814. Could you maybe at least explain the idea that the Supreme Court may be what the founders had in mind in terms of urgency to self govern . Can to do things that would protect itself from that kind of loss of confidence . I think the framers realized how important it was dad decisions insulated from political pressure. The framers realized they would Want Congress to play a role in the establishment of the court. The lower courts, which are congresss choice to create them in the Supreme Court which must exist but does not control aspects of its administration with the core requirements, like when it meets significant aspects of jurisdiction controlled by congress. And what they intended to do was have congress ensure that the courts run effectively to serve the interests of the nation. The last point, which is something that again all of my studies of the founding of our country, there is worry about concentrations of power. This worry about the corrupt ability of officials should they not weve seen at written large how corruption happens. You get elected to the Supreme Court, youre not beyond corrupting influences of our society, which are often revolving around the enormous influences of wealth. And so, could you just give me one more point, if we are going to make democracy stronger than we inherited it or at least as secure, is there some wisdom to clean from the understanding that the founders had about the cell ability of the people that hold these secret offices . Framers were clear that there would be partial control of each branch over the other because no one should be unaccountable. And ambition must counteract ambition as James Madison put it. Thank you very much. Senator . Thank you, mr. Chairman and all of the witnesses. I want to talk about this letter that i think 11 democrat senators signed in 2023. The members of the appropriations, it includes a lot of members of this committee as well as others. This is an interesting letter and i want to look at some of the language and what the senators are asking for. They say that congress ought to impose a code on the Supreme Court, that congress has Broad Authority to compel the Supreme Court, compel. They will go on to say congresses appropriations power is one tool for achieving these changes. Compel, we going to compel and use the appropriation, congress should withhold appropriations. They go on to say nothing stops congress from treating the judiciary any differently from any other government when faced with judicial recalcitrance. These judges wont do what we want them to do so we are going to compel them to do what we want and use the appropriations power. What appropriations power . They asked for 10 million to be withheld. Thats an interesting number, 10 million, 10 million, why 10 million . Lets have a look at the Supreme Courts 2024 budget request. What are we seeing . We have seen 4 million of requests for security funding. And we see more funding. This is the 20, four plus six equals 10. That just happens to be magically the exact same number that my democrat colleagues want to deny the Supreme Court unless they stop their judicial recalcitrance and submit to the compulsion of this body. So in other words, the threat is we will deny you security unless you do what we want. Let me say that again, we will deny you security unless you do what we want. We had an assassin come to the home of Justice Kavanaugh and try to murder him. Weve had threats on the lives of other justices and members of this body say we will deny you security for you, your family, your children unless you do what we want. Extraordinary. Extraordinary. Judge, can i just ask you longtime distinguished jurists, former attorney general of this country is it appropriate to threaten the security of the justices of the United States and in lees order to get him to comply with the wishes of this body . Have you heard of Something Like this being done before . I have not. I have not either. And i have to say at a time when we have had three different credible assassination attempts or threats against justices, we still have people illegally going to the justices homes in an attempt to influence their decisions and their cases. No one has been prosecuted for those violations. We have constant threats and danger to their children, radicals post publicly the School Location of one of the justices children in the context to say we will deny them millions of dollars in security funding unless they do what this body wants is the height of irresponsibility. And frankly, i cannot believe i am seeing it. I guess its what weve seen from the majority leader who says what was it schumer, cavanaugh, gorsuch. That you will reap the whirlwind. Like us, we are reaping the whirlwind now. That they are just on their own unless this judicial recalcitrance stops. I hope we do not have to see another assassination attempt. I hope we dont have to have another justice killed before this body will take judicial security to course independent government. Thank you. Since the assertion has been stated, it was the democrats who led the recalcitrance after the bill was held up for nearly one year by republican senators unfortunately. Because of the security for our members of the judiciary, it is bipartisan. Senator . Thank you, mr. Chair. Continue this important dialogue, as the Supreme Court itself stated in buckley v vallejo, quote of almost equal concern is the impact. This case dealt with contributions to elected officials, the same logic. In the absence of strictly enforced ethical standards for our judges, but as the buckley opinion made clear, there is serious concern that public trust in our highest courts is damage, even by the appearance of impropriety. Weakening the faith in our traditional institutions as a whole. Whats more, as a former federal judge pfizer to the president pants, speaking of numeral he said in a statement to this committee on some far left or whatever republican colleagues decided mr. Levy, he said quote is some thing in frankly not a political issue and must not become one, i agree, this is an issue of importance to all of americans. My first question, i will address it to professor fry. To explain the effect that calls into question their own ethical standards and how that impacts public faith in the courts. It does so in two ways, first when the law is binding on the justice Something Like it undermines the integrity of the court system and also raises the question of whether the justices following the law in the other cases because of course the justice is responsible for administering the law second, you made the point about appearance of impropriety. Its important for judges to be aware that if they are doing nothing personally wrong, there not trying to be bribed, it can create the appearance to others and that is a problem for the legitimacy. So the appearance of impropriety can be as damaging as actual impropriety when it comes to the public trust in our court system . Yes and the code of conduct that applies to the lower courts which the Supreme Court does not have to follow specifically states that. Impropriety is as much of a problem as actual in propriety. According to federal statutes, justices are required to recuse themselves when they have a financial outcome of the case or when there chief justice, along with todays witnesses argued that the Supreme Court cannot be subject to the sensible of the constitution which demands that all recusal would provide over which justices might hear a case, that is the argument anyway. I will address this to mr. Payne. Is it accurate that justices make decisions together . Sometimes justices recuse and not all nine are active on case but i want to point out the case point that recusal does not necessarily mean that the judge has to get off of a case if you have a procedure where the disclosure is ratcheted down more. The decision to recuse is made public, that also can provide with the public is looking for with transparency. I want to bring together the earlier question of propriety versus perceived impropriety. And the dynamic of recusal. Bloomberg reported that billionaire republicans, they gave Justice Thomas hunches of thousands of dollars worth of gifts and travel. They had a financial interest in cases appealed to the Supreme Court in 2005. If there is no indication that he recused himself from that matter, in your opinion, how did the situation such as this with the absence of recusal impact the publics faith and trust in the courts . Again, there are two problems. One, there is the reasonable possibility that there might be biased when there is financial interest by a justice. And second, there is the broad point of it is disturbing to see any justice not follow a law that applies to them. They should follow the laws that apply to them. Thank you mr. Chair. Thank you, mr. Chair. We have two competing narratives. We have five witnesses and two opinions. Three witnesses believe it is in the power of congress to act. Two witnesses believe it is a violation of the separation of powers. We have a dispute in a disagreement among basically republicans and democrats about what the motivation is an ethical investigation, whether it is just a proxy for competing views about the outcome. I happen to strongly believe that the court, that congress has the authority and i will not rehash that. But i would ask this, wouldnt it be wise for the chief justice who is the steward of the public reputation of the court under his own volition to adopt a strong code of conduct that the court would adhere to. A woodward answer a oneword answer . No. Because a strong code of conduct that you hypothesize would have to be enforced with a mechanism that would involve the questioning of individual justices. He has in his letter to this committee, outlined procedures that are used in cases of recusal. They file the same code of conduct. If the Supreme Court justice cannot take a bribe, they would say that would be improper because it would be subject to enforcement outside the court . They are subject to the same laws and general applications that apply, they could be prosecuted and impeach. That is not the same question. Thank you. Whether it would be printed for the Supreme Court justices as a steward of its reputation to promulgate part of me, i will ask you, mr. Depree, a code of conduct that will apply to all . When Justice Kagan testified, she said the Supreme Court was considering doing that. We have different points of view, but what is the problem with the Supreme Court justice saying lets have a code of conduct that applies to all of us . I think the potential problem would be the one that the judge identified, which is to say what is the enforcement mechanism . Is there going to be a superior tribunal . I want to go into another issue. There has been discussion that there is an agenda year because many disagree with Court Decisions, let me just admit, i am one of those who disagrees with a lot of the courts decisions. We have talked here about separation of powers. Which i agree with. But we have also talked about checks and balances. And my view is that the erosion of support for the court has less to do with the ethical issues and more to do with the public sense that it has completely disregarded the rights of the majority through their elected representatives to pass laws to protect the public interest. Now, i will ask you again, attorney general, the Supreme Court has done this before in my view. The dred scott decision, they said africanamericans could not be citizens. They said congress could not legislate against slavery in the territories. And historically, do you agree with that decision . With dred scott . No. Good. But that was the court interfering with the authority of congress to legislate on what was a majority point of view to start pushing back on slavery. That was the court making a disastrous error. And in a ruins decision which was where the New York Legislature was attempting to protect its own citizens from the violence of gun violence, the Supreme Court said they did not have authority to do that. And that is completely divorced from what the majority of american citizens want about gun safety. What say you about that . I say the decision stands on its own rationale and it does not have to do with denying anyones rights or denying any protections . It denies the legislate turned those legislators their rights. Let me ask about the lochner decision. It has been overruled. At the beginning of the progressive era it was overruled, thanksgiving is. At the beginning of the progressive era, some courts according to holmes who i happen to think was a good justice and a dissenter, he said that the rationale of the courts decision prohibiting the New York Legislature from protecting the workers from working 60 hours a week, that that was based on the courts adherence to not a legal principle, but to an economic doctrine. Do you agree with that decision . With the dissent . With the basis of the decision where the Court Essentially interfered with the legislative bath need to pass laws. In this case, to protect against abuse of wage and regulations imposed. The Supreme Court did not agree with the because they reversed locker imputed. Heres the point that i want to make and i appreciate your pushback. The checks and balances component of the constitution is being disregarded. The congress is not autonomous. We are all elected and we reflect different points of view. But this congress has the authority and responsibility to act on behalf of the citizens who elected them. And not have that impeded by a Supreme Court unless there is something unconstitutional. The Decisionmaking Authority of the court, it was not contested. I yelled back and i apologize for going over my time. Senator . I think it is the only day where the senator should not have to apologize. It is his birthday. Happy birthday. Thank you. Thank you all for being here. I actually came with some prepared comments to talk about what i thought was covered very well. By senator graham and senator kennedy. I am not going to talk about the current state of affairs. But i think our behaviors in the behaviors of some people in this country have created a toxic and dangerous environment for the Supreme Court and the judiciary. And that is what we need to be aware of. We have to stop this because this will not end here. We will have protest at district judges houses, Circuit Court judges stocks. We have got serious challenges here. I think it is in large part on congress to deescalate the situation. But in your Opening Statements it look like you were preparing remarks for a debate on the constitutionality of what we are considering here. So im going to create an ad hoc debate. Between the two of you. And maybe allow others to raise your hand and opine. But you laid out in five or six minutes a very strong case for saying any actions we would take here could arguably be oppositional. Stipulating to what professor vann said in opening comments, there is a role for congress to play. We have with creating the structure for the article three ranch mandated under the constitution. Im curious about professor frosts idea of where the line goes. I could have read your comments to say that the proposals that are before us in the senate and the house would pass constitutional muster. I think the one that i found most interesting that i would like your opinion on i did not recall the bill number. That really created the structure where circuit District Courts were really going to be empowered to govern the proceedings of the Supreme Court. If you are aware of this particular bill, we can go right to your rebuttal. The same way theres not a constitutional problem with it being prosecuted to commit a crime like any other judge. They certainly could review the ethical con conduct off the bench. We were envisioned to be that. Right now they seem to be doing very well. It just seems to me you would be creating a framework to where the outside could divide the court. Suddenly you would have a group of District Court judges who would have one agenda that they would be advancing. You would have another agenda and probably it seems right with the politicization. It starts with attic with ethics, but where does it go from there. There is a serious concern that litigants could try to gain the system to try to gain the justices who would be hearing their case. If that provision were to become law, i promise you as someone who regularly litigates, around one would be trying to knock out the justice who you think would be opposed. If you create a system where individuals are incentivized, the Supreme Court who rightfully declined with the concurrence of all justices, that would be a political circus and almost unprecedented as far as American History to have a hearing of that nature with chief justice so i just hope, what i care about most is not your confidence in the judicial system, not necessarily the confidence of anyone member here but the confidence of the American People and i do hope that this process has been instructed to in article three branch who should independently in the same way i have an office code of conduct i dont know how many Senate Offices have that, probably not many. I think they could update, refresh and address the concerns without requiring any congressional actions. If they act in the near term, maybe the committee could be instructed. Thank you for your time. Senator . Thank you mr. Chairman and thank you to our panelists for joining the committee today. Judge, that is usual conference has issued a code of conduct which applies to the district and the district and Circuit Courts correct . And as i understand it one of the tenants of that code is that judges should avoid any conduct that can lead even to the appearance of a conflict of interest correct . That is correct. Why is that . Because if theres an appearance of a conflict of interest or an appearance of impropriety then the people who are affected by the decisions that that judge or judges make, they suspect that its not a fair decision that there are improper influences. Are recognize and acknowledge that there are separation of powers and constitutional concerns need to be carefully weighed can and concern of a design of such a system. Do you agree with judge vogel that the appearance of a conflict of interest fogel that the appearance of a conflict of interest can undermine can reasonably undermine Public Confidence . As long as you articulate what it is that appears, people often say the appearance of conflict and feel that thats kind of a nice vague term they can use to cover a concern about something else. I think if you allege in particular that there is an appearance of a conflict or an appearance of impropriety, you have some obligation to architect articulate what it is that appears. You would agree with the principle. Yes as for judges as they are advised and governed in part by a judicial code of conduct that they should avoid any appearance of conflict of interest because that could undermine Public Confidence in the impartiality of the judiciary that the public could also reasonably lose confidence in the integrity of the Supreme Court. And it has to be reasonable. I recall writing on that subject and i was asked to recuse myself because i am a jew and a zionist from judging a case involving some terrorist. I refused. I wrote rather long and elaborately on that topic. Thats right, but you did not judge and i ask this rhetorically and i know the answer is no. You did not as a judge or do not as a judge except foreign travel and hundreds of thousands of dollars from politically active parties. Correct . No i dont know people. That wasnt my question. My question was that as a judge you would avoid accepting such jet such gifts because of the concern that he could create im not seeking to interrogate your personal conduct. Im asking you as a judge, is it fair to say that you most likely would have declined an offer of foreign travel worth hundreds of thousands of dollars because quite reasonably you wouldve had the concern that Public Disclosure of such travel could undermine Public Confidence in the partiality of your judgment . If somebody, if i were a district judge and somebody wanted to fly me out on his private plane, on a vacation with his family, i will would be firmly with that person. What i refuse and endanger their friendship . Im not sure that i would. I think america asked the question whether its appropriate and my impression is that most judges in the district and circuit level considering the guidance and code of conduct, i dont know if you agree with me, would refrain for that very reason. Is interesting. The california code of conduct which is similar to the federal one, there is guidance that when you receive social hospitality, receive gifts like we are talking about that you should consider the size of the gift is one of the factors. Its one thing somebody takes you out to dinner. Its another thing somebody flies you on a private jet to some faraway place. That actually is not in the federal code of conduct. One of the questions is, you can focus on whether one is accepting a gift like that should be disclosed and then theres the question of whether the sheer size of the gift creates an appearance and i think there are different opinions about that. But i think when you are talking about the appearance of impropriety, you need to look at the entire context. I agree, what is a reasonable question about whether the gift or the hospitality or the gift is so large that it raises issues of undue influence. I think it is a holistic type of inquiry. Thank you judge. Senator blackburn. Thank you. Before i begin my questions. I know that a lot of my colleagues have addressed what they see as hypocrisy. The continued effort by our colleagues across the aisle to politicize or smear or delegitimize the Supreme Court and i find that disappointing especially when you look at what has transpired in the past year with our justices and the threats, the assassination attempts, the protest outside of their home simple because people disagree with the decision that they have reached and i find it just completely inappropriate. General mckay c general, i want to come to you and talk about the safety of the justices and section 1507 which some of my colleagues in race today, that section makes it illegal to protest out of a judges residence if the intent is to influence that judges decisionmaking and we have heard what the protesters outside of the justice homes were saying post the decision. Things like, and im quoting some of those. If you take away our churches our choices we will riot. Another chant was no privacy for us, no peace for you. In other words, if the justices were not going to vote their way on roe v and casey, the protesters were going to keep the harassment up and as we have heard, they have done that as they have protested roe v. Wade, as they have protested the Dobbs Decision. Despite all of this, the biden doj has refused to enforce section 1507. That is why i introduced the protecting our Supreme Court justices act which increases the jail time for anyone who tries to influence a judges decisionmaking in this manner. I would just like to ask you, what more can we do to send this message that what they are doing is wrong . To allow these protesters outside the justices homes and youve got justices that i know fear for not only their safety but the safety of their families and weve talked about that today and i do see increasing that jail time from one year to five years as one step that we can take and we should pass that and protect our justices. Increasing the penalty may very well be appropriate, but i think the key here is there have been no arrests. In those cases. None. Zero. Nada. To say thats within the control of the marshals who provide a safety i think really doesnt pass the laugh test and to suggest that somehow these people are exercising First Amendment rights when First Amendment rights are subject to place, time and manner restrictions is disingenuous. If you had arrests, im not entirely sure that in creasing the penalty would be necessary but in any event start with that. It would be nice to see some people held to account. It does anyone else on this panel have a thought on what ought to be done with arrests to send the proper message that what they are doing is inappropriate . Both branches have an Important Role to play in protecting on article three. The executive judgment could play a much more aggressive part in protecting the justices, particularly when they are in their home and when threats are directed at the children of the justices. They can make arrests and take Law Enforcement responsibilities seriously and think we can all recognize that peaceful protests have a role in our society. If you are targeting the justices and their children, that goes well beyond the line. What about senator schumers threats when you heard it . We talked about that some today. Do you see that as an ethical breach of conduct of one branch of conduct one branch of government to another . A threat to individual justices by name if they dont vote particular way and vote the way the senator prefers that they will inherit the whirlwind or what ever was said. You cant have a system that functions when you have numbers of the Senate Standing up to threats from the Supreme Court threatening the justices particularly cases. Three coequal branches and thats part of the point that is so important to make mr. Chairman. Thank you all. Thank you. You have asked for a chance to respond if i understand . Simply clarifying that when the committee asked me about suites that i made, i did not make the tweets myself. It was pointed out to me that i did retweet a news article that did have additional commentary with that retweet so i wanted to clarify that for the record. Thank you. I also want to clarify there when i sent the letter of invitation to chief Justice Roberts, he responded directly to me. The other justices signed onto his ethics statement that was accompanying that response. They did not technically decline an invitation. It was never offered to them. An invitation to the chief justice. He could come join us, any member of the court as well. Point of clarification. I want to closes by saying thank you, allowing senator if he has anything he wants to add at this point. What we have here is a situation in which very clear policies and procedures exist in the Judicial Branch of government and are generally administered through the Circuit Courts and appeal. They include very basic things like having a place where a complaint about a judges ethics can be lodged. The Supreme Court doesnt have that. They include very basic things like having staff people assigned to review any complaints that come in, sort out what makes them and what makes it and what doesnt. Filtering the people have to do, complaints of come in. Every Circuit Court does that. Supreme court does not. Beyond that, if it looks like a complaint has merit, staff attorneys work to look at the complaint and to do a little bit of a factual investigation so that there is a record to decide whats true and what isnt and that can include asking a question of the judge about what their recollection is of a situation or the justification is. The Supreme Court does not do that. Theres plenty of room well within the more extreme views here to see this, forgive me, but i consider these to be noncore duties of the court to comply with the statutes that are permissible to regulate. The court has already agreed to follow and respect and comply with judicial conference rules and procedures. It doesnt seem much to have them also ask, not just complied, but asked what does it take to comply question mark and get an answer in advance so they know if its compliant or not. Judges Financial Disclosure committee was set up to do and to take another step further, to make the advice that they get, which could be from other judges as just advice, public so that there is a clear contrast between what every other judge has to live by for rules and what the justices themselves rules they have to live by. I will close by reminding everyone of Ben Franklins Poor Richards almanac which advised that the best way to show that a crooked stick is crooked is to put a straight stick down next to it and i think the Circuit Court of appeal in the way they behave right now overseeing ethical conduct of federal judges presents that straight stick. Take you very much chairman for the hearing. Im going to close with a personal note. It was my good fortune as a college student, paul douglas and start inspired me to aspire to this life and he was the ultimate leader when it came to questions of ethics and took it to a level that many in elected office in the 1960s would not consider. Never accepted a gift worth more than 2. 50. 2. 50. He made an annual disclosure in detail of his net worth and income tax returns. I picked up that tradition of making a complete detailed income disclosure net worth disclosure every single year. I dont know that anyone even notices. My wife did for a few years. We had no money. No one else notices. My goal was to make enough disclosures that my own questions of ethical judgment would have to consider that disclosure. I dont know it takes to restore peoples faith in our government and our courts, but this was a good faith hearing, not an issue that i raised 11 years ago. It had nothing to do with president trump. He wasnt the president at the time. It had nothing to do with the agenda of the courts today. It was long before. I still think this is a valid point. Its a partisan point. This is now a demo credit because. I dont think judge or others came to this on the political basis. They are looking for a matter of principle and i still think its valid. Ive made my first entree on this with a personal letter, first with a phone call. I respect him. I really believe this is his court and he can make of it what he wishes. Its he had a chance to use us if he wanted to. He did not choose to. I hope regardless of what comes, it will heal itself by the justice leaders, the chief justice as leader. We will have statements in the record that will be added with unanimous consent. I hope you will respond quickly. Thanks very much for your patience today. Stands adjourned. The head of the environmental justifies on t president s 2024 budget request for the epa. Live at 10 a. M. Eastern. At 2 30 p. M. , Jerome Powell hos a News Conference to discs Interest Rates and other monetary actions. On cspan2, the Senate Returns at 10 00 a. M. To consider District Court nominations. Thesevents and more also stream live on the free cspan now and online at cspan. Org. This week, Marianne Williamson joined washington urnal to take your calls to discuss her policy objectives d what she sees as her path to vtory. Army secretary