There is a good deal of complicated scheduling going on in the senate, which is particularly busy right now. So we may or may not be joined by Ranking Member, kennedy, i see as other obligations. But ive been cleared by his team to proceed with the hearing, if you can make it here i will give him the chance to make an Opening Statement at a convenient juncture. But, in the meantime, the witnesses are ready and im cleared to proceed. So we will go forward. Two weeks ago, in a speech to the american law institute, chief justice, roberts, said he wanted to assure people he was committed to making certain that the Supreme Court would adhere to the highest standards of conduct, more important, the chief justice acknowledged the court has more to do, that justices are continuing to look at things they can do to give practical effect to that ethics commitment, and that he is confident that there are ways to do that. Ways to do more. The chief justice is right. There are plenty of ways. The court could fix its ethics problems. Bogus personal hospitality, obvious conflicts of interests, phony front group and mickey, these are all areas right for repair. As chairman of the subcommittee, i pointed out these problems and offered up solutions. More times than i can count. But, still we wait we. Wait for the court to do something, anything, to show that it takes its ethics seriously. The American People are tired of waiting. The new poll released the same day as the chief justices remarks, shows that almost 60 of americans disapprove of the way we disapprove of the way the Supreme Court is doing its job, and americans are more likely to think that the justices honesty and ethical standards were low or very low. For an institution that depends on the publics faith to carry out its functions, that is unsettling, territory. If the Supreme Court is not going to do anything to restore the publics trust, it is up to us in congress. Today we are going to talk about Real Solutions to real ethics problems. The Supreme Courts ethics recusal and Transparency Act. This committee has covered a past hearings how the bill what address problems like Justice Thomass failure to disclose gifts and travel from a billionaire republican donor. We have also discussed how my bill would create a transparent process for enforcing ethics rules at the court. Todays hearing will focus on how this bill would address recusals in conflicts of interest. From the very first days of this republic, congress has regulated judicial conflicts of interest to help preserve the judiciarys integrity. Recusal, and conflicts laws on the books expressed lee applied to the Supreme Court. It is time for congress to step back in, to fortify the administration of these laws. Case in point, for more than a year, now Justice Thomas has refused to recuse from cases involving january six or the 2020 election. In the first instance, Justice Thomas voted to stop the january Six Committee from getting access to white house communications. It may have included Justice Thomass wifes texts to the white house chief of staff about overturning the 2020 election. The lawfulness of that failure to recuse, depends on a fact. What to Justice Thomas know about his wifes insurrection activities, and when did he know it. After more than a year, Justice Thomas has still never been obliged to answer that question. We dont know the answer to that essential fact. In no other court would such an essential question of fact go unanswered. Questions of recusal and conflict of interest are intertwined. So we need to know more about front groups that helped appoint trumps justices and then appear as litigants before the same justices. And recent reporting shows ties among rightwing operative leonard leo, billionaire megadonor, harlan crow, and Justice Thomas. Again, often implicated in the filing of amicus briefs without links disclosed. To these concerns and others, the response of the court has been secrecy, and silence. When my bill would end the practice of Supreme Court justices judging their own conflicts of interest. Require better disclosure and transparency so the public knows when justice has a connection to a party or in a case before the court. And require judges to explain their recusal decisions for everyone to see. As we hear from todays witnesses about why these reforms are needed, we should all keep in mind a maxim so old that it is in latin. Name oh [speaking nonenglish] no one should be a judge in their own case. With that, without senator kennedy, here i wont yield to him for his opening remarks, but the chairman of the Senate Judiciary committee, senator durbin, is here, and i would invite him to make any opening remarks he should care to deliver, thank you for being, here mr. Chairman thanks to you, as chairman of the court subcommittee. Senator whitehouse, for holding this important hearing today. I want to thank the witnesses for their participation as well. This is the third hearing we have had this year on the topic of judicial ethics. We are serious about finding Real Solutions to the ethical shortcomings of the Supreme Court. It was february 12 to 12, 2012, when i first sent a letter to chief Justice Roberts calling for the court to step up and adopt an enforceable code of ethical conduct. I have been pushing for this reform for more than a decade. It is long overdue. We need to restore Public Confidence and trust our Supreme Court. It cannot be done when they operate in the dark and in secrecy. Todays hearing will discuss recusal transparency. We have seen interesting movement on this issue in the Supreme Court, with at least one justice, Justice Elena kagan. She is now providing public explanations for a recusal decision. She gets it. She understands that when the American People understand her thought process, it lends credibility to her final results. The same thing is true for the rest of the court. They obvious question, is will another justice follow suit . Justice kagan . Will chief Justice Roberts step in to ensure other justices do so for transparencys sake . Ive said this before and it bears repeating. The problem of ethics in this closure in the Supreme Court can be cured before the end of the day by one person. Chief Justice Roberts, of the roberts court, as it would go down in history, has the authority and the opportunity to step in and get this done now. Rather than let this problem linger and even get worse. That its the conduct of some of the justices. He can do it, and he should. This committee will continue to pursue this issue because it is critically important to our responsibility and to the constitution when it comes to the Supreme Court. A few weeks ago, chief Justice Roberts gave a speech where he said, and i quote, he is committed to making certain that we, as a, court adhere to the highest standards of conduct. I couldnt believe it. I thought he spoke up. Maybe he is finally going to do something about. This well, he should do something, and he should do it, now take the steps before the Supreme Court takes its summer recess. To carry out the commitment he made in that speech. Lets not have another summer of justices jetting off for luxury junk its under an inadequate set of ethics rules. Ive said it, before it is worth repeating, the highest court in the land should not have the lowest ethical standards. If the court wont act, congress will. Thank, you chairman thank you very much, chairman durbin. I will now introduce the witnesses and turn to them each after the introductions for five minute Opening Statements. If you are written testimony is longer than, that will be made a matter of record. But i urge you to confine yourself to the five minute time window so that we can proceed with the questioning part. Of the hearing. First, donald sherman, is the Senior Vice President and senior counsel at citizens for responsibility and ethics that washington. Mr. Sherman overseas legal efforts to improve transparency and accountability within the federal government. Including through Ethics Reform. Mr. Sherman previously served as counsel for the House Ethics Committee, and has helped several roles in congress and the executive branch, including chief oversight counsel on the House Committee on oversight and government reform. Senior council on the Senate Homeland security and Government Affairs committee. And chief of staff and senior counsel for oversight and investigations in the department of housing ands office of general counsel. Professor jennifer mascot is an assistant professor of law at the Antonin Scalia law school, george mason university, and the codirector of the sea board and great center for the study of administrative state. Professor mascot writes and teaches in the areas of constitutional, law administers above law, and the separation of powers and federal courts. Professor mascot previously u. S. Justice department and Deputy Assistant attorney general within the Departments Office of Legal Counsel during the trump administration. Professor mascot also clerked for Justice Clarence thomas and before, that then judge, brett kavanaugh. Professor james sample is a professor of law at the maurice 18 school of law and huff strut university. Professor sample is an expert on the law of judicial, recusal elections, and the Internet Action of Campaign Finance and traditional ethics. Hes the coauthor of a leading text on judicial ethics and has written numerous articles on the history of and issues related to judicial recusal. Professor sample previously served as an attorney in the Democracy Program at the Brennan Center for justice in New York University school of law, he also cloth for judge Sidney Thomas on the u. S. Court of appeals for the ninth circuit. We welcome all of you, mister, sherman you may proceed. Chairman whitehouse, Ranking Member kennedy, members of the subcommittee. Thank you for the opportunity to testify before you today. About the Supreme Court, the ethics recusal in Transparency Act. The urgent need for a clear, transparent and binding recusal regime for the Supreme Court. Im here representing citizens for responsibility and ethics in washington. A nonpartisan, non profit organization, devoted to ensuring the integrity of our government institutions, today, there is a crisis of confidence in our federal traditionary. This crisis is the result of a number of overlapping failures, chief among them, is the judiciarys apparent inability to abide by the rules of ethical conduct their high office demands. As the wall street journal reported in 2021, over nine year period, more than 130 federal judges presided over 650 cases, in which they had immaterial financial interest in one of the parties. More recently, the public has learned of unreported gifts accepted by judd stiffs Clarence Thomas by a billionaire political benefactor, and of a decades Long Campaign by wealthy activists to purchase unparalleled access to the Supreme Court. Sadly, these scandals were entirely preventable. For decades, liberal and conservative justices alike have tested the limits of this lacks ethical regime while activists and advocates, for godless of ideology, have exploited every cap they can find. Like many americans, i have long regarded the federal judiciary with great preference and even all. I recall fondly every flipping interaction have had with the high, court from attending my first oral argument, to visiting chambers, touring the highest court in the land. Even after years of ethics problems facing the judiciary, many organizations, including my, own were hesitant to sound the alarm because we often litigated the federal courts. That reluctance, combined with a benign elect neglect of many in, conference has contributed to the current crisis. Unfortunately, our collective reverence for the court has resulted and giving undue deference to the nine justices for their ethical compliance. The wall street journals reporting and recent revelations of ethical issues impacting justices across the ideological spectrum have made the case for reform even undeniable. The act takes a number of actions to respond to this crisis, each of which promotes the independence of and rebuild Public Confidence in the judiciary. In particular, the act would reshape the recusal, regime a constitutionally appropriate manner, adding transparency and accountability to an opaque and broken system. When the act really husel provision creates a more robust process for identifying and deciding recusals, to ensure justices independents in their work on behalf of the public, after all, they are government employees. This is my third time testifying before congress about judicial ethics. And i want to proactively address some of the questions that i have heard before and expect to hear today, first, the need for Ethics Reform at the Supreme Court is not a partisan issue. I have been an ethics lawyer for more than a decade, but you dont need to be an expert to appreciate what is wrong with judges ruling on cases where they have conflict of interest, or with making their own recusal decisions. Second, i have also been black in america my entire life. I am absolutely certain that Justice Thomas has faced racism in his. I am also absolutely certain that bolstering ethics rules that will apply to every justice, regardless of ideology, is not racist. The idea that these necessary reforms are political or retaliatory is equally absurd. While we cannot dismiss Justice Thomass agree just ethical problems, it is also true that former justices, ginsburg, prior, and others, have heard cases where they like we shouldve recused. Even more troubling, every single one of the current justices has rebuffed basic oversight and reform, arguing that we should just trust them to make their own recusal decisions, despite years of scandal at the court. So while it is regrettable that some politicians have directed incendiary rhetoric at justices they oppose, one cannot acknowledge the ethical blunders by both liberal and conservative justices in recent years, and credibly defend this untenable status quo. In closing, despite having the power of judicial review, and enjoying life tenure, federal judges have substantially fewer ethical checks than the counterparts in the legislative and executive branches. The highest court in the, land it has the lowest standards regarding conflicts and recusals. It is now abundantly clear that the justices cannot or will not effectively regulate themselves. Your favorite liberal icon, and your favorite conservative hero on the court need binding ethics rules. That includes a transparent and independent recusal process. The surge act does just. That thank you for the opportunity to testify on this important topic. I look forward to your questions. Thank you very, much mister chairman. We now turn to professor mascot. White house, making member, kennedy members of the subcommittee, thank you for having me or chest testify. Im jennifer mascot, i am a professor at scalia law school. Im testifying on my individual capacity. My views dont reflect my academic institution. I was here 12 months ago right after the leak of the dobbs opinion, when we were, at that, point going to discuss chairman whitehouses legislation. The discussion took a different turn and sadly, personally, since that time, my husband have fell ill of pancreatic cancer and passed away just a few weeks ago, in february. So im glad today to have the opportunity to be back before you. We welcome you back. Thank you, so today ive been asked to talk about any separation of powers questions that might arise in looking at regulation of procedure with the Supreme Court. Congress obviously has a very important constitutional role to play, related to the federal judiciary, congress is responsible, obviously for establishing federal tribunals. Since the judiciary act of 1789 has taken significant action, to regulate and address the procedure and subject matter jurisdiction of federal courts, including the Supreme Court, the congresss power in this area with the federal judiciary is pegged to his authority to establish inferior tribunals, and also its necessary and proper power to enact laws to carry into execution the vesting of federal judicial power in the Supreme Court and other federal tribunals. So its not an unfounded authority, necessarily, to regulate all actions, various judges and justices, and since 1789, this body has had a practice of leaving the courts with significant discretion in regulating procedure and also administration of their own affairs. Two additional principles in the constitutional structure that i think are relevant to the discussion today, they include the concept of the Supreme Court sitting over inferior tribunals, concept of hierarchical system with an article three. And then also, the more constrained role of the judiciary to control and the executive which are elected by the American People. I think those principles come up and touch on several aspects of the draft legislation. First, the legislation has some provisions in it providing for notice and comment procedures. The Supreme Court looks at its own procedural mechanisms and recusal roles, and ethical codes. And in contrast to this body, and the executive, branch where the public, through the electoral process, and commenting, has a much more direct role in procedures. The Supreme Court and the federal judiciary, by the terms of the constitution and the constitutional structure, were set aside to be impartial, thats the title of this hearing, it reflects judges given tenure protection and salary protection so they would not be too swayed by the public. So i think its important to think through whether there is tension between having the Public Comment on ethical codes of the supreme, which we want to stand apart from political contributions, consideration and morris. And, edition the aspects of the draft bill, they enable individual members of the public, even apparently in cases, situation so they dont necessarily have a case before the Supreme Court to raise individual ethics complaints. And try to initiate investigation into various aspects of judicial or Supreme Court affairs, or recusal decisions, that also may create tension with the notion of an impartial judiciary that is set aside from the political process. Finally, aspects of the bill that give Lower Court Judges a role in overseeing or approving various justices decisions, whether it is recused or how to handle their role in a particular case, also may sit intention with the constitutional structure. As a policy matter, i think its good to think about whether it makes sense at this point to significantly increase regulation of the judiciary, which, by many metrics, i would argue is actually working quite, well president biden, at the start of his administration, established a commission to review and look at the Supreme Court, and courts in general, and instruction how it operates. That commission did not coalesce around a single significant change that needs to be made close to 40 , more than 35 of decisions or dungeons each year over the past two years issued by the Supreme Court are unanimous. Congress has many tools at its disposal to regulate practice of courts to subject, matter jurisdiction other procedures that have a much more longstanding historical providence than some of the disclosure and recusal provisions in this particular bill. Thank, you i look forward to discussing this further and answering questions. I think you just said the subcommittee record for the most amount of testimony in five minutes. [laughter] well done, congratulations. Professor sample. Chairman whitehouse, Ranking Member kennedy and members of the subcommittee. Thank you for inviting me to testify today. In our polarized political era, the tendency is to see nearly every issue through a partisan lens. With doing robust judicial ethics rules as partisan, however, is reductive at best, and corrosive at worst. The acute problems we face are not limited to tourists of any particular ideological stripe, as my written submission notes, on the Supreme Court, legitimate concerns can and have been raised as to tourists across the ideological spectrum. As was written in the New York Times two days ago, liberals and conservatives should want a Supreme Court that is above reports. Yes, there is variants in the severity and regularity of the problem surrounding individual judges and justices. But fundamentally, and with extraordinarily rare exception, the problem is not the people. Though, iconic figures, Supreme Court justices are human beings. They make mistakes. The problem with only rare exceptions, is not the people, but the system. So, what is the central flaw . Well, section 4 55 a, chapter 20, eight of the United States code. States that any justice or judge of the United States shall disqualify himself or herself in any proceeding in which the judges impartiality, and now we get to the key phrase, we might reasonably be questioned. This standard is, by its terms, objective. Indeed, if anything, it layers an excess of caution on top of the objectivity. By emphasizing the disqualification required whenever judges impartiality might be questioned. That objective standard is combined with a middle some tension, even a contradiction. It is applied entirely subjectively by the judge or justice in his or her own case. It should come as no surprise that the results of such a system are inconsistent. In analogous circumstances, some justices recuse while others do not. Section five of the proposed legislation requires tourists presented with a recusal motion to either recuse or have the question referred to an impartial panel of randomly selected judges. In the case of the Supreme Court, the panel consists of the other justices of the Supreme Court. The proposed legislation before you is not top down congressional control of granular details, in a coequal branch. On the contrary, section two of the legislation merely requires the Supreme Court to issue a code of conduct for itself within 180 days. And, doing, so it would merely level up the Supreme Court so as to bring the highest court in the land more in line with the stronger standards of the couple in all lower courts. Chairman durbins Opening Statement made this point more eloquently, and certainly more powerfully than i ever could. Similarly, Section Three of the legislation, mandates the justices disclose the same information concerning gifts, income and reimbursement. As required members of congress, and members of the executive branch. The Current System particularly because of the lack of enforcement in the Supreme Court, means that agree just failures to comply with existing federal law richer and recur without meaningful consequence. Consider, as a rhetorical question, whether it makes any sense to require less of the branch where impartiality is the touchstone, that we require of the two constituent branches, i applaud the legislation before the committee, and the sustained efforts to bring us to this day. The Supreme Court ethics recusal and Transparency Act would protect lit against, promote Public Confidence in the judiciary, and do so without jeopardizing the courts decisional core independents. The legislation is necessary, measured, and constitutional. Thank you. We thank you very, much professor. For the benefit of my, colleagues the order that i have is white house, durbin, blumenthal, corona, wells. And then without objection, i would like to add to the testimony a statement for the record prepared by professor charles g j, of the indiana University School of law, and a statement of the project on government oversight. Professor sample, let me turn to you. Federal law currently contains a provision. 28 United States code, section 4 55. It governs when judges should recuse themselves from a case in which there is a conflict of interest. Can you explain, generally, what that law requires . Yes, mister chairman, section 4 55 is the language that i quoted a moment ago that says that judge shall recuse, and it uses the language shall, which is mandatory language, in contrast to some of the remarks that the committee has received from the chief justice and others that make the standard sound as though its merely aspirational, and subject to voluntary compliance. It says, whenever the judge or justices impartiality might reasonably be questioned, the judge is required to recuse him or herself. The practice in many lower courts, and many state, courts is to have those decisions reviewed. But at the federal court of appeals, level there isnt a procedure to do that. At the Supreme Court level, there is absolutely no procedure to do that. And what happens is that we have an reviewable decisions by the individuals who are acting as the judge in essence, as you put it in your Opening Statement, their own case. That law applies to Supreme Court justices . Yes it does. And obviously Congress Passed that law. Correct. Has the Supreme Court ever ruled that this law or any other recusal law or, for that matter, the ethics and government act, was unconstitutional or that it cant apply to the justices . No, the Supreme Court has never ruled in that manner. Indeed, have justices not complied with it . Most of the time they have complied. Without objection . Without objection. Let me turn to mr. Sherman, with an example. This relates to disclosure. And one conflicts of interest should be presented to the parties and the public, so that informed recusal conversation can transpire. In 2020, the rightwing flagship Political Organization of the koch brothers, americas for prosperity, spent at least 1 Million Dollars on what it called a fullscale campaign to confirm judge amy coney barrett. Including hundreds of thousands of phone, calls emails, ads, opeds, and called unite for barrett. Com. Americans for prosperity had run similar campaigns, spending millions, for all the trump justices. At the same time, there was a case, pending before the Supreme Court, that was brought by the virtual alter ego of americans for prosperity, this organization was called americas for Prosperity Foundation. For those of you who are not familiar with the stateoftheart in dark money political influence tactics in america, the latest and greatest is to set up a 501 c 3 , no 501 c 4 , that are effective twins and have the same donors, the same up staff, the same address. Theyre indistinguishable. This is the relationship between americans for prosperity and americans for Prosperity Foundation. They share officers, directors, address, and certainly donors. Although, because if, dark money protections they dont disclose. What sort of disclosures should have been made to the parties in the americans for Prosperity Foundation case about that relationship in order for people to make a determination as to whether there was a conflict of interest in one corporate entity appearing before the court . Of a twinge corporate entity that spent millions of dollars to get those justices onto the Court Hearing the case. Under existing law . In terms of what the proper course of justice which the, just lets put it that way. Certainly, given this scenario that you described, its certainly raising concerns about the opacity of the arrangement, and whether this organization is using its funds to influence the justice, and disclosure, would be advisable, but obviously, its required under existing law, but would be under the search act. Heres another one. An amicus showed up under the fictitious name, the honest elections project. That fictitious Name Organization bears relationship of virtual corporate identity, to the judicial crisis network. Which, like americans for prosperity, spend millions of dollars and dark money to push for the confirmations of the trump team nominees. They are coordinated by an individual named leonard leo, who has been deeply involved in the selection of at least four of the Supreme Court justices. There is no disclosure made of any of those relationships in the honest elections project amicus brief. Why is that wrong . Again, the public is certainly entitled to information about who is mounting privately funded campaigns to influence both who sits on the, court and what decisions they make when theyre on it. But under existing, law they are not required to do so, but certainly under the certain act there would be more disclosure required. Senator durbin. Chairman durbin. Thanks, senator. Mister chairman, when i heard them describe your background involving work of capitol hill with the House Ethics Committee . So let me give you a hypothetical and see if you can help me get to a conclusion. Lets assume that, like the Supreme Court justices, our congressional recess starts somewhere in august, and a really good friend of mine of many years decides he wants to pay for my wife and myself to fly on his charter plane to a distant destination, and then spend a week or two on a very palatial yacht of his. And then he will return me home after ive had my vacation. What kind of responsibility do i have, as a member of congress, to disclose any of that . The first requirement you would have us to call the committee to seek approval to accept the travel in the first place. But then you would have to disclose the travel itself, if you were approved, the travel itself, the amount of the travel, and the source of who funded aspects of the travel. When you say disclosed, demean publicly . Correct. So let me ask you if you know what rule would apply to a District Court judge, a federal court judge, who had the same opportunity. In the federal courts, my understanding is that there is less Disclosure Requirements with respect to privately funded travel, and at the Supreme Court, they the personal hospitality exception covers a lot of this, depending on the nature of the friendship, and it wouldnt have to be disclosed at all. So there is no disclosure in the District Court level . For the Circuit Court judges . I believe there would be at this level. There . Would be yes. And they have a code of ethics as well . Yes, they have a very lengthy binding code of ethics. The Supreme Court does not, though they say that they sometimes reference the former. So Justice Thomas, when he did not disclose at the Supreme Court, level was he in violation of any law that you think applies . Yes, so with respect to Justice Thomas, while personal hospitality need not be disclosed, there is a requirement if you are staying in somebodys home. If you share a meal in their home, but the payment of his actual travel to location, on the private, yet his travel on the boats, especially because that travel, as we understand, it was funded by a private company and not actually the hospitality of mr. Crow. It needed to be disclosed and was a violation of federal law. Professor sample, im trying to wrestle with the argument we hear from the other side that this is the separation of powers that gives Congress Little or no authority over this Court Created by the constitution. As opposed to the inferior courts. And yet, you made reference, this was one of the federal statutes enacted by congress to apply to the Supreme Court, which apparently the court, at least, nominally follows, is that correct . Correct. Can you rationalize the thinking, that congress has no authority over the court . And yet the Court Follows what Congress Says it should . I think, senator, it is clear that congress does have authority to regulate the Supreme Court. Indeed, separation of powers doesnt mean that one branch of government is entirely independent of the others. Congress regulates many aspects of the Supreme Court, including the size of the, court the salary of the justices, its budget, a quorum requirements. As far back as the judiciary act of 1789, congress has been in the business of making manifest the article three promise that there will be a Supreme Court, but without article one legislation that this congress can pass, that article three promise would be a parchment promise at best. Im not saying this as they, would put those on the other side argue that congress has authority when it comes to those elements you just mentioned. But doesnt have the authority to impact the decisionmaking of the court. They draw that line. Do you recognize that same distinction . I think in the prior hearing, professor amanda frosted a nice job, in my, view in her written testimony. She does a nice job laying out the key core of the judicial process, which is the power to decide cases and controversies. So a decision that intrudes on the core decisional independents in the case of smith v. Jones, if congress were to say that smith has to win and jones has to lose, thats a real problem. Thats an intrusion into the core of the judicial power. The legislation that you and your colleagues have proposed does not intrude into that core decisional independents in any way. Thank you, senator. What would we do without our staff to tell us what is what . Welcome, everybody. I think this is a very important issue because when we talk about the need for the public to hold the courts, especially the Supreme Courts, in high regard, in spite of the fact that there is very little we can do if the Supreme Court is doing things we dont agree with, im wondering why, im curious, maybe especially for professor sample, why is an important that a public hold the Supreme Court in high regard . Its a very good question, senator, and i think the answer is that democracy is fragile. It depends on faith, trust, and good will. And it depends on confidence. Famously, the court lacks the power of the purse. And it lacks the power of the sword. It depends on people believing in its legitimacy for its rulings to be respected and followed in a manner that is, consistent with civilized society. Would you agree, mister chairman . I would. I would also say that the courts exist so that there is a neutral arbiter to resolve disputes between individuals and institutions. And if people dont have faith that the courts are neutral arbiters, they wont avail themselves to the court which is also a problem for democracy. I think availing themselves to the courts, if they do not have confidence in these objectivity,s and fairness of the courts, i think that is a real concern. Now, i think we made a play that congress does have the power and authority to shape the size, determine the size of the Supreme Court. It holds the power of the purse over the Supreme Court. It requires justices to write circuit, for example. So i would like to ask all three of, you does congress have the power to enact the search act . Mister chairman . Yes, professor sorry, mascot . Do we have the power to enact the search act . Without getting into all the details of the, act i think the questions that i have raced in my earlier statement about the particular bill here is who is involved in enforcing some of the rules and requirements put into place, for example, putting Lower Court Judges sorry, we do have the powers. There are concerns about how things will be implemented or how those kinds of my question was simple, do we have the power to enact the search act . I would say yes. Professor . Yes. Things that you testified to, mr. , chairman really caught my attention. You referred to the wall street journals 2021 report where in 130 federal judges presided over more than 650 cases in which they had a material financial interest. I would like to, no how did this come to light that this kind of conflict existed in these instances . Well, as i understand, it the wall street journal spent a lot of time mining through an archaic system, Financial Disclosures, and identifying specific holdings that judges had and the cases that were involved. In many, cases the judges claim they did not know. This is one of the reasons why Congress Last year passed legislation to update and automate that process. We so, are you saying that out of these instances, there is not a lot of recusal from these judges, as they made decisions regarding these cases in which they had a conflict . Correct. Okay, so professor sample, do you think that the search act will remedy this kind of circumstance where the judges are not paying enough attention to where they have financial conflicts, which is probably the simplest conflicts to ascertain, thereby, leading to their recusal . I think they certain actual do a large part of the work to at least mitigate that problem. We still may have remnants of the problem, but the search act would do a lot of work to prevent that kind of scenario requiring judges to recuse themselves, or, if they declined to do, so to have those decisions reviewed by their peers. And the wall street journal did a tremendous job in reporting that piece, and i think it shows one of the fundamental flaws, which is that we are combining a system in which the judges are already going to be the judges in their own case, and that is only really a case if theyve done the legwork in advance to determine, via factfinding, that there might actually be a direct pecuniary interest on their part. And thats a real problem. Mister chairman, if i, may i think that pecuniary interest is really the most objective way that you can define a conflict. I would say there are also relational conflicts. And there may not be computer interest, but if you made somebody who is taking a position that is being challenged in court, that is a relational complex. And i just want to mention, im very familiar with the case that involves the state of hawaii, and major acts that was being challenged. It was called the land reform act. It went all the way ten years. All the way to the Supreme Court. Justice marshall recused himself because he was married to a person who was born in hawaii. That is a relational perceived conflict. Thank you, mister chairman. Senator blumenthal. Thank you, mister chairman. Now you know, whenever these issues of ethics are discussed, i cant help but think back to my days as a lock work for Justice Harry blackmon. He refused to have dinner with people who might conceivably, at some point in the future, have a case before the Supreme Court. Even if he was going to pay for dinner. He refused to sit down with someone privately who might have a case before the Supreme Court. And we made fun of him a little, bit i have to admit, as law courts do, behind the back sometimes of the justices. But if he were somewhat more lax, i think the standards overall have been reduced for the conduct of Supreme Court justices. At the time, justice, douglass he was regarded as an outlier. Because he wrote books. He wrote books. Supreme court Court Justices dont write books. Of course, every Supreme Court justice now writes books. So i think that we are dealing here with a cultural change that has really contributed to diminishing respect for the Supreme Court. And you know, to answer a little bit more the question that chairman durbin asked of mr. Sample, professor sample, you know, the Supreme Court has a mistake. You may regard it as a mystique not justified in fact, but it is a credibility. A trust. A confidence that is so necessary for a court composed of nine people, unelected, presiding for life, and able to strike down the will of a democratically elected congress, it is extraordinary and democracy. And so, i am really just baffled by chief justice, roberts. Because he should know better. And this controversy could be defused, if he were willing to lead. And obviously, we have asked him to lead. Again and again and again. And the failure to take the reins here, which could easily supplant these kinds of measures, if he were to voluntarily impose some code of ethics, and there would be enforcement questions. But at least there would be a code of ethics and the judicial conflict, someone could enforce it. You know, i dont want to be unfair to any particular justice, because i recognize these questions can be asked of any or all of them, but thinking to Justice Thomas is presiding over questions related to january 6th, in light of his spouses Text Messages to then white house counsel, white house chief of staff, mark meadows, regarding theories of fraud in the 2020 election. Strategies to overturn the election. His insistence on fort refusing to recuse himself on matters related to january 6th seems to me to flout section 4 55 statutory requirements. That is a statute. It exists. No one should be above the law. In all green. So i think thats a reason for the diminishing of Public Confidence in our Supreme Court at this historic time. And a historic low. And i have just, about unfortunately, just about exhausted my time. But let me ask, you, miss mascot, without asking you to comment on Justice Thomas, isnt there some way for this body, in the absence of leadership from the Supreme Court, itself to insist that some standards be imposed, understand fully your argument. Thats a separation of powers. But no decisional outcome, no substantive issues determined. Isnt there a way for us to act . Well, certainly i think through this hearing and through the policies that have been put in place regularly leading to the lower courts. This body made clear standards to apply to recusal, it sounds us, though i think from the chief statement that he provided, prior to the last hearing, the Supreme Court justices are aware of concerns and are going to continue to be careful, as they have, been in trying to police and make their own decisions and be faithful to make sure that theyre recusing in cases where they have involvement. Another very real procedure that we havent discussed a lot today, but i think has appropriate constraints, and obviously, political cost for the, spotty which is why its not more used, but the constitution, of course, does have, for wrongdoing, an investigation always has the impeachment authority. And i think some of the concerns, i think coming into play, here are when this body decides to not use that more serious structure whether there are concerns in a body of nine decisionmakers, as you all say, with two readily insisting that one of those decisionmakers recuse and not participate in exercising the judicial power, when we dont have evidence of wrongdoing, and we dont have reason to believe the process is actually not working. My time is expired. Senator padilla has arrived. And by sunday the principles of said norrie, he is next, followed by senator welch. Thank, you mister chair. As has been discussed at this hearing, and i apologize for arriving late, you know how, it is multiple votes and multiple committees. The current law governing recusal gives judges injustices a lot of discretion when making recusal decisions. And there have been numerous instances of judges abusing this discretion from district, toyed Circuit Court judges, failing to recuse themselves, from cases in which they have a financial interest. To Justice Thomas, failing to recuse himself from cases concerning january 6th. Despite his wifes documented engagement with the organizers of the insurrection. So what we are discussing today begins to fill those gaps by laying out specific instances in which a judge or justice must recuse themselves, including instances where a party has given a gift or made a financial contribution to campaigns supporting the confirmation. With mr. Sherman, i will ask, you why are these pacific recusal provisions necessary, and are there any other specific provisions that the congress should consider . Well, i think they are necessary because, as the last several years have demonstrated, again, activists and advocates who want to influence the court will exploit every loophole possible, which is quite easy when there is no code of conduct for the Supreme Court to abide by. I think that the search act would address these concerns, by not only with respect to the justices financial entanglement, but it would also provide transparency with regards to people seeking to influence the court. As you, said provided independent in transparent process to adjudicate recusals. Which is where the public is really growing frustrated and concerned with justices and judges ruling on cases in which they have we conflict of interest. Thank you. And there is certainly skeptics out there who have concerned that the with public explanations for recusal decisions. Would actually invite against man ship at the Supreme Court because theres only nine justices. Again, the legislation we are talking about would reduce, i believe, the opportunities for such gamesmanship by providing clear cut guidelines for when a conflict of interest requires recusal. Taking the guesswork out of the process. Federal judges want to hold themselves to a high ethical standard, they claim that they hold themselves to a high ethical standard. It would make it easier for them to do that and for the public to see that. Question for professor sample, can you explain how clear guidelines for when recusal is called for would lead to greater consistent and transparency and recusal decisions . Yes, senator. I think, most prominently, eliminating the judge as a judge in his or her case is an important preliminary step. At the Supreme Court level, while, yes, in theory, there is a gamesmanship concern i think it is worth noting that the justices regularly decide cases on issues of Major National import, all of the time. They often disagree vehemently and still maintain a good working relationship. I do not think that the individual justices out there would be looking to game the system by work using their fellow justices. In voting, unless those recusals were truly warranted. I think if they are truly warranted than the entire nation is served by those recusals. We have had situations. We went over a year with only eight justices on the bench because congress refused to give Merrick Garland a hearing. The court managed to function with only eight justices for more than a year. I think they can manage to function with only eight justices in one particular case. Excellent point. I am glad that, in the reporting from this hearing, it will be. That quote will be attributed to you. Not a member of the committee. Thank you very much. Thank you mister chair. The patient senator wells. I thank you very much. In response to the question that senator asked professor mascot you use the term impeachment. Are you serious . What are you talking about . We should be impeaching judges . What did you mean by that . Oh, no. What i was saying is that the constitution, like it does in many instances, has a very challenging, finally grained, procedures in place. I understand the. But we are talking about a very concrete situation about a failure to report reports of a justice having been the beneficiary of very expensive travel arrangements. I just dont know where that word came from or what you are suggesting. I guess what i am suggesting is there are questions being raised about congressional regulation and investigation of alleged wrongdoing or concerns. What i was saying, which is what i would say if we were im sorry to interrupt. Im gonna retake my time. This is what it sounds like youre saying to me. We dont have the power, legislatively, to require ethical disclosure. But we do have the power to impeach . Isnt that a little overkill . Specifically what i said in my Opening Statement is the particular aspects of the bill which i think create the most constitutional tension are the ones that allow members of the public, members of lower court to adjudicate decisions by Supreme Court justices. Lets talk here were talking constitutional attention. How about public credibility . I am of the view that constitutional protections are one thing. Norms are another. If there is not credibility among the public for the institutions that are here to serve it, congress, the Supreme Court, the presidency, then things fall apart. I share your concerns. I think, across the, board federal institutions are struggling with credibility. Unfortunately, i think congresss Approval Rating is lower do you think that the nine people who occupy the highest judicial positions in the country can maintain credibility with the people that they serve . By the way, they are public servants, as well. They are not above the service requirement. Do you think they can maintain credibility with the public . Or even deserve to . If they will not disclose when they are the beneficiary of extraordinarily generous and completely out of reach vacations that only they can get by virtue of the position that they hold . I mean, in contrast to a lot of my colleagues, academic and otherwise, i actually think that all nine justices, admirably, are trying to apply the rule of law in every case according to the constitution. Well if these press reports are to be believed, no one has challenged them. Well, no, no one has made an accusation, actually, i dont think, that the Disclosure Requirements or anything about them has been related to any decision in a case. I think that is another point of connection that should be highlighted. So if you got thousands of dollars in vacation benefits but you were handing before the court, you dont think that is going to raise public questions . There was no. I see where youre coming from. I guess i will, respectfully, disagree. I am extremely worried about what is happening on the Supreme Court. What is happening with the failure of the chief justice to relieve us of this public spectacle. I am worried because the Supreme Court has to be a credible institution in our democracy. Im worried about how that has eroded with the unwillingness of that court to subject itself to the same ethical requirements that 150 other federal judges and here to. I am worried about what has happened with the credibility of the court because of the spectacle of Supreme Court hearings here. The unruliness, at one, point of allowing duly elected president from having his nominee considered. And, on this question of the separation of powers, i am worried about judicial abuse legislative power by refusing to uphold a bipartisan Campaign Finance law. Sponsored by john mccain, among others, russ feingold. It was intended to in still credibility to the election process. Those are my concerns. Congress had a role to play. The court has a role to play with its ethics. The court has a role to play with respecting the right of the majority to legislate decisions on behalf of the public interest. I yield back. Thank you. Im going to ask and extra question of professor sample. And professor sherman. With respect to professor thimble the new statement on ethics, principles, and practices that the justices put forward posits a duty to sit. Explain to me why it is preferable to have a conflicted just a sit on a case than to have the conflicted justice recused . Senator, i think the statement on the duty to sit is, respectfully, overstated. They have lots of empirical references. We had a recent bloomberg study indicated that justices recused from approximately 3 of the cases the duty to sit in is not trumping basic recusal requirements in those cases we have explored the fact that we have gone more than a year with only eight justices on the court. The very same individuals who are now championing this extraordinarily row busk of the duties dissent and seem to have a problem with only eight justices. I do not think that the duty to sit argument holes water when battled against the importance. The fundamental due process and an impartial judiciary. Mister chairman, let me offer you another hypothetical. It appears to be the fact that, right now, we have a justice on the Supreme Court who has written a book through with that justice received royalties that go directly to the benefit of that justice. I farm is helping that justice sell the book has agent pr operation. It appears to be the only book that the Firm Supports in that way. That firm. Crc advisers, is run by the same leonard leo that is responsible for orchestrating, socalled, federal society lists which the federal society has disavowed. Running the ad campaigns behind the confirmations of the three trump appointees. Who is Network Groups persistently filed briefs before the Supreme Court without disclosing any of those lengths. Setting aside those links not been disclosed. What other problems with the ability of someone in a position to derive royalty into a justices pocket . By organizing massive purchases. Perhaps even bulk purchases. Who knows . Why should there not be disclosure of these contractual relationships when cases come up in the cases of looking at recusals . They absolutely should be disclosure in the situation you are describing with respect to parties who are effectively have the ability to funnel money to a justice. Again, without casting aspersions on the nature or the motivation of the relationship, the nature of it demands disclosure. It also demands and independent work refusal process. If the act is passed, one of the things that will happen if the justices have to sit in judgment of each others there will be a Chilling Effect on the kind of conduct that we have seen over the last few years. The justices not only do they do not want to sit in judgment of each other. They dont want to force their colleagues to sit in judgment of them. The reason why right now the court is operating with Carte Blanche because every justice has the individual decision to decide whether or they should recuse or not. They do not have to disclose it at all. If i may i would just add one thing about the duty to sit. I also found that incredibly problematic and, frankly, arrogant. I would say that if the justices were serious about this duty to sit, than they would, of their own accord, and act significant prophylactically measures to eliminate conflicts before they arise. That could take the form of many different things. Banning the ownership or sale of stocks by themselves or their families. It could manifest itself as prophylactically deciding to ban certain types of travel. Again, the duty to sit is important. If the justices were serious about their duty to sit then they would take significant measures to avoid conflicts in the first place. What the court is saying in this two or three statement is they feel empowered to sit despite a conflict. Rather than a duty rather than the royals to eliminate a conflict in the first place. Thank you, very much. This has been a very helpful hearing. I am very grateful to all the witnesses for attending. In closing i would know that in terms of peers sitting in judgment of one another, that is what we do in the senate. That is what the senate Ethics Committee does. It requires peers to sit on the senate Ethics Committee to sit in judgment of other senators who have gotten in trouble. One of the ways that you make that real is by having talented staff, staff attorneys, go through the process of finding out what the facts are. So a proper decision could be made by the peers against or asked to each others conduct. In the case of the Supreme Court, not only do not have the peer review, if you will. You dont even have the most elementary factfinding. There is not a court in the country, in my estimation, where if a recusal issue was properly raised, there would be no way to determine what the facts actually were asked to a justice or judge can recuse or not. It simply doesnt happen anywhere else. The idea that the court, setting aside being unwilling to sit in judgment of itself it is unwilling to even have facts found about itself is so out of kilter with basic premises of due process, proper procedure. The american rule of law. It is a, little bit, astounding to me. The fact that we just dont ever get a proper honest answer about the facts, setting aside which he would do with them is a little bit stunning. I would also know, in closing, that there is a perfectly good Financial Disclosure committee that sits within the judicial conference. If the justices have questions about whether their conduct might violate the ethics rules they have a judicial place to go where other judges would give them advice and let them know no you shouldnt do that now you should have probably disclose that. So when we are evaluating a justices determination to rely on, what i believe he called, informal opinions of colleagues and others, that justice was bypassing the actual judicial system through which any federal judge can get an advanced, private decision about what they need to disclose. I think one of the reasons that so many federal judges are so furious about where the Supreme Court now is is they live within those rules. They file their questions with the code of conduct committee. They file their questions with the Financial Disclosure committee. They abide by the results that they get. They do not have a hallway conversation about an ethics issue and then end up taking a position which is virtually indefensible. There are many ways where this can be resolved. I just want to say that i, for, what i think most of my Senate Colleagues on the democratic side so far as we have heard today are going to persist at this. We are in an intolerable and indefensible situation. If the court itself for the overseer of the which this falls into. If it wont act then it leaves us to act. Its the worstcase scenario is a court had credibility is in free fall, because it will not hold itself to standards that every other federal judge knows are proper. Thank you very much. If i dont know if there were any questions for the record. If there were are any questions for the record and be in by tomorrow. Weve got a whole beach we have a week. If anyone has questions for the record, asked the witnesses. If we get those questions we will pass a question to you. We hope that we will get rapid responses back to the questions. I appreciate, very, much the dialogue weve had today. I appreciate you being here. With that, the hearing is concluded. This evening Congressional Republicans and democrats faceoff in the annual baseball game for charity. Live coverage from National Park begins on seven pm eastern on cspan. You can also watch on fees been now a free mobile video app or online at cspan. Org. Order your copy of the 118th congressional directory now available at cspans shop dot org. It is your access to the federal government with bio and Contact Information for every house and senate member. Important information on congressional committees. Depression cabinet, federal agencies, and state governors. Scan the code on the right order your copy today. Or, go to cspanshop. Org. It is 29 95 plus shipping and handling. Every purchase helps support our nonprofit operations. American history tv saturdays on cspan two. Exploring the people and events that tell the american story. At 6 45 pm eastern, Ohio Democratic senator sharon brown leads a Bipartisan Group of senators on a reading of dr. Martin luther king juniors 1963 letter from birmingham jail. At 9 30 am eastern on the presidency, in his book becoming fdr journalist and historian Jonathan Durbin reveals how polio transformed Franklin Roosevelt into the man that country through the Great Depression in world war ii. Exploring the american story. Watch American History tv saturdays on cspan two. Find a full schedule on your Program Guide or watch online anytime at cspan. Org slash history. On august 24th 1950 5 14yearold emmett till isited Bryant Grocery and meat market in greenwood, mississippi. He was accused of flirting with a white store clerk, caroline brian. Emmett till 16yearold cousin, whelan parker junior was with him when the incident happened. Also, four days later when emma till was abducted. Sunday, on q a, reverend parker. Coauthor of a few days full of trouble recounts the events that led to emmett tills murder and his efforts to get justice for his late cousin. I left him in the store. Nothing happened while i was in there. Arthur simeone who was 12 years old. He was 14 of 16. He went in with him. Nothing happened while they were in the store. They came out of the store. Once they were out of the store a short time later, i dont know how long but miss bryan came out of the store. He loved to make people laugh. There was never a dull day in his. Life so he whistles to make us last. He gives her a wolf whistle. When he did that we couldve died. He had to have understood the atmosphere in 1955 in mississippi. A black man whistling at a white woman. I mean, that was death itself. Reverend Wheeler Parker junior with his book a few days for the trouble. Sunday night at eight eastern on cspans q as. Listen to q a and all of our podcast on our free cspan now app. Cspan is your unfiltered view of government. We are funded by these television companies, and more, including mythical