BAD INFLUENCES: WEIGHING SEPARATION OF POWERS PRINCIPLES AGAINST CALLS FOR TRANSPARENCY FOLLOWING “LAPSES” IN JUDICIAL ETHICS

By: Bridget Hoffmann, Vol. 106 Staff Member

In his 2021 Year-End Report on the Federal Judiciary, Chief Justice John Roberts emphasized the importance of maintaining judicial independence[1] in response to public criticism and calls to impose “ethics and transparency measures” on the federal courts.[2] The Chief Justice specifically addressed recent Wall Street Journal (“Journal”) reporting on “lapses” in judicial ethics.[3]

Throughout Fall 2021, the Journal published articles on ethics violations in the federal judiciary relating to “financial disclosure and recusal obligations.”[4] In September, the Journal reported that it had uncovered 685 instances of 131 federal judges presiding over cases in which they held a financial interest between 2010 and 2018.[5] The Journal revised these figures after accessing the judiciary’s 2019 financial disclosures, increasing its initial estimate from 685 violations to 965.[6] The reporting prompted judges to notify parties of their violations in 796 cases, opening the door for these cases to be, well, “reopened.”[7]

The Chief Justice’s comments do not stem solely from the Journal’s reporting. Rather, the reporting fueled interest among lawmakers to impose transparency measures on the federal courts. Calls for such legislative oversight are common[8] and the judiciary heavily denounces these efforts where they arise, labeling them a threat to judicial independence.[9] Congress, in response, emphasizes its authority to oversee the administration of the federal courts, and the importance of accountability within an insulated, influential judiciary.[10]

The cross-branch battle between independence and oversight is nothing new. The reported violations, however, have fueled both criticism of a judiciary that is increasingly perceived as partial, and pressure on lawmakers to adopt “past due” reforms.[11] Reform opponents emphasize founding era, Constitutional arguments for judicial independence. Reform proponents emphasize the need for oversight in a branch prone to ethics violations.

I. EXISTING OVERSIGHT MEASURES

The federal judiciary is not without an ethics regime. The Judicial Conference, the federal courts’ policy-making body,[12] adopted the “The Code of Conduct for United States Judges” in 1973. The Code sets out ethical guidance for federal judicial officers, and the Conference’s Committee on Codes of Conduct provides subsequent revisions and advisory opinions.[13]

In September 2020, the Judicial Conference released its “Strategic Plan for the Federal Judiciary” to “promote beneficial change.”[14] The Plan lists “Preserving Public Trust, Confidence, and Understanding” as a primary issue, and indicates that “failure to live up to established ethical standards” is “the surest way to lose trust.”[15] The strategy for addressing this issue relies, in part, on “the effective performance of critical integrated internal controls [and] governance of judiciary financial information.”[16] The Judicial Conference thus emphasizes the importance of both accountability to preserve public trust and “sufficient structural autonomy for the judiciary as an equal branch of government in matters of internal governance.”[17]

Recognizing that “internal governance” is not always sufficient, Congress has also acted to regulate judicial ethics. Post-Watergate legislation prevents federal judges from presiding over cases in which they hold a financial interest, providing that they must disqualify themselves “however small” such interest may be.[18] Congress went a step further to stifle judicial conflicts of interest in 1978, requiring judicial officers to file financial disclosures under the Ethics in Government Act.[19]

The recent reports of ethics violations, however, cast doubt on the sufficiency of existing oversight measures. Judges have accounted for their “lapses” in different ways, from placing blame on court clerks and faulty conflict-screening software, to minimizing their role in the cases at issue, to a judge with thirty-six violations claiming ignorance of the ethics law.[20]

In his year-end report, the Chief Justice emphasized that the 2010–2018 violations constituted “less than three hundredths of one percent . . . of the 2.5 million civil cases filed in the district courts in the nine years included in the study.”[21] He also stated that the judiciary should “strive for 100% compliance” under its existing code of conduct in order to maintain “public trust.”[22] This would involve additional ethics training and improved technology to detect potential conflicts of interest.[23]

The Chief Justice made clear, however, that any change in the existing oversight regime should occur internally, citing former Chief Justice William Howard Taft’s “prescient” recognition of “the need for the Judiciary to manage its internal affairs, both to promote informed administration and to ensure independence of the Branch.”[24] These calls for internal reform, however, have not appeased Congress’s desire for intervention in the name of transparency.

II. RECENT CONGRESSIONAL ACTION

In October 2021, legislation entitled the Courthouse Ethics and Transparency Act of 2021[25] was introduced in the House of Representatives as a revision to the Ethics in Government Act of 1978.[26] The bill requires “that federal judges report securities transactions that are worth over $1,000 within 45 days[,]”[27] and “expedite[s] public access to judges’ financial-disclosure forms.”[28] The bill has bipartisan support and passed the House in December by a 422-4 vote.[29] Its companion bill is in the Senate.[30]

Following the bill’s passage, House Judiciary Committee Chair Jerrold Nadler (D-NY) stated: “Transparency and ethics are vital to the integrity of the judiciary and maintaining the public’s trust in our courts; however, recent reporting has shown that our federal judiciary has operated with much secrecy and minimal accountability for far too long.”[31] Chairman Nadler emphasized that the “long-overdue” bill would provide transparency and ensure impartiality in judicial decision-making.[32]

III. JUDICIAL INDEPENDENCE AND THE SEPARATION OF POWERS

To protect its independence, the federal judiciary contests Congressional efforts to impose codes of conduct and oversight measures on its officers.[33] The judiciary’s arguments for anti-encroachment are rooted in the separation of powers.

Certain Constitutional provisions preserve judicial independence, like those providing federal judges with undiminishable salaries and life tenure.[34] Such measures insulate the “federal judiciary . . . from political pressure,”[35]in service to the “rule of law.”[36] The Chief Justice emphasized the impact of this independence in his year-end report, as “[t]he Judiciary’s power to manage its internal affairs insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and co-equal branch of government.”[37]

The Framers recognized the importance of an independent judiciary. Because the judiciary had neither the legislature’s power of the purse, nor the executive’s power of the sword, Alexander Hamilton argued that “liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.”[38] Under this view, “[t]he complete independence of the courts of justice . . . essential.”[39]

Congress, however, has a Constitutional claim over the administration of the federal courts. Under Article III of the Constitution, “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”[40] This directive permits Congress not only to establish “inferior courts,” but, according to many scholars,[41] also grants it the ability to impose additional rules and regulations. The Judicial Conference, for example, is a creature of statute.[42]

As the Senate takes the Courthouse Ethics and Transparency Act under consideration, it appears ripe for passage. The bill, co-sponsored by Senators Chris Coons (D-Del.) and John Cornyn (R-TX),[43] has bipartisan support, as illustrated its 422-4 passage in the House. Despite its separation of powers concerns, the judiciary’s hope of keeping certain oversight measures internally regulated seems unlikely, at least insofar as this Act is concerned.

For now, requiring expedited financial disclosures and increasing access thereof seems like a minor, well-intentioned step towards transparency and greater public confidence in the integrity of judicial decisionmaking. The judiciary has countered, however, that there are broader ramifications to outsourcing the regulation of judicial oversight. Interfering with the judiciary’s ability to manage itself, for example, poses a risk of introducing “inappropriate political influence.”[44] Such influence may pose a greater risk to public confidence in the judiciary than highly publicized and certainly unacceptable, but few-and-far-between ethics violations.

The judiciary intends to “Preserv[e] Public Trust, Confidence, and Understanding,” in part through “internal oversight.”[45] The branch’s publicized ethics violations directly inhibit this goal and raise doubts regarding judicial impartiality. In the short term, the Courthouse Ethics and Transparency Act’s moderate reforms seem more likely to preserve public trust in both the integrity of judicial decisionmaking and the branch’s freedom from “inappropriate” financial “influence” than would an overhaul of the courts’ internal oversight measures. Legislative reform seems particularly necessary given the prevalence of recusal violations despite the judiciary’s “internal oversight” objectives.

 

[1] John G. Roberts, Jr., 2021 Year-End Report on the Federal Judiciary, Sup. Ct. 3 (Dec. 31, 2021),  https://www.supremecourt.gov/publicinfo/year-end/2021year-endreport.pdf [https://perma.cc/GY8G-PGG4].

[2] See James V. Grimaldi, Joe Palazzolo, & Coulter Jones, Judges Held Off Congress’s Efforts to Impose Ethics Rules—Until Now, Wall St. J. (Dec. 23, 2021), https://www.wsj.com/articles/judges-held-off-congresss-efforts-to-impose-ethics-rulesuntil-now-11640275421 [https://perma.cc/7QGY-K675].

[3] Roberts, supra note 1, at 3.

[4] Id.

[5] James V. Grimaldi, Coulter Jones, & Joe Palazzolo, 131 Federal Judges Broke the Law by Hearing Cases Where They Had a Financial Interest, Wall St. J. (Sept. 28, 2021), https://www.wsj.com/articles/131-federal-judges-broke-the-law-by-hearing-cases-where-they-had-a-financial-interest-11632834421 [https://perma.cc/53GT-QSUL].

[6] James V. Grimaldi, Coulter Jones, Joe Palazzolo, & Michael Siconolfi, Dozens of Federal Judges Had Financial Conflicts: What You Need to Know, Wall St. J. (updated Jan. 25, 2022), https://www.wsj.com/articles/dozens-of-federal-judges-broke-the-law-on-conflicts-what-you-need-to-know-11632922140 [https://perma.cc/RWR7-QB25].

[7] Id.

[8] As a recent example, the Judiciary Reforms, Organization and Operational Modernization Act of 2018 was introduced in the House in 2018. H.R. 6755, 115th Cong. (2017–2018).

[9] See Grimaldi et al., supra note 2.

[10] See id.

[11] See id. (quoting Rep. Hank Johnson (D-Ga.)).

[12] See generally Governance & the Judicial Conference, U.S. Cts., https://www.uscourts.gov/about-federal-courts/governance-judicial-conference [https://perma.cc/F7RN-9SCU].

[13] Code of Conduct for United States Judges, Guide to Judiciary Pol’y, Vol. 2A, Ch. 2 (revised Mar. 12, 2019), https://www.uscourts.gov/sites/default/files/code_of_conduct_for_united_states_judges_effective_march_12_2019.pdf [https://perma.cc/M63N-96BG].

[14] Strategic Plan for the Federal Judiciary, Jud. Conf. of the U.S. (Sept. 2020), https://www.uscourts.gov/sites/default/files/federaljudiciary_strategicplan2020.pdf [https://perma.cc/T9XE-JELR].

[15] Id. at 9.

[16] Id. at 10.

[17] Id. at 2.

[18] 28 U.S.C. § 455(d)(4) (defining “financial interest”).

[19] The Ethics in Government Act of 1978, Pub. L. No. 95-521, amended by the Ethics Reform Act of 1989, Pub. L. No. 101-194, 103 Stat. 1716, 5 U.S.C. §§ 101­–111.

[20] See Grimaldi et al., supra note 6 (“One judge who had 36 recusal violations, after initially saying he ‘never really paid much attention’ to his stockholdings and wasn’t familiar with the ethics law, told the Journal: ‘I am embarrassed that I did not properly understand and apply the stock ownership rule.’”).

[21] Roberts, supra note 1, at 3.

[22] Id. at 3.

[23] Id. at 3–4.

[24] Id. at 5.

[25] H.R. 5720, 117th Cong. (2021–2022) (as passed by the House, Dec. 1, 2021).

[26] The Ethics in Government Act of 1978, Pub. L. No. 95-521, amended by the Ethics Reform Act of 1989, Pub. L. No. 101-194, 103 Stat. 1716, 5 U.S.C. §§ 101­–111.

[27] Mychael Schnell, House Passes Bill to Expedite Financial Disclosures from Judges, The Hill (Dec. 2, 2021), https://thehill.com/homenews/house/584039-house-passes-bill-to-expedite-financial-disclosures-from-judges?rl=1 [https://perma.cc/PXL6-WTYS].

[28] Grimaldi et al., supra note 2.

[29] Press Release: Chairman Nadler Celebrates House Passage of the Courthouse Ethics and Transparency Act of 2021, House Comm. on the Judiciary (Dec. 1, 2021), https://judiciary.house.gov/news/documentsingle.aspx?DocumentID=4805 [https://perma.cc/UY4C-GPX5].

[30] S. 3059, 117th Cong. (2021–2022).

[31] See Press Release, supra note 29.

[32] See id.

[33] See, Grimaldi et al., supra note 2 (“For decades, the federal judiciary has repeatedly rebuffed efforts by Congress to impose ethics and transparency measures.”)

[34] U.S. Const. art. III, § 1.

[35] See Judge Paul L. Friedman, Threats to Judicial Independence and the Rule of Law, A.B.A. (Nov. 18, 2019), https://www.americanbar.org/groups/litigation/initiatives/committee-on-american-judicial-system/in-the-news/threats-to-judicial-independence-and-rule-of-law/ [https://perma.cc/YDR7-W44T].

[36] William Rehnquist, 2004 Year-End Report on the Federal Judiciary, Sup. Ct. 4 (Jan. 1, 2005), https://www.supremecourt.gov/publicinfo/year-end/2004year-endreport.pdf [https://perma.cc/MT68-WEWK].

[37] Roberts, supra note 1, at 1.

[38] The Federalist No. 78 (Alexander Hamilton).

[39] Id.

[40] U.S. Const. art. III § 1.

[41] See Grimaldi et al., supra note 2 (“Because the Constitution left formation of the lower courts to Congress, many scholars have long maintained Congress can enact rules for the federal district courts.”).

[42] 28 U.S.C. § 331.

[43] See Schnell, supra note 27.

[44] Roberts, supra note 1, at 1.

[45] See Strategic Plan for the Federal Judiciary, supra note 14, at 9.