News Journal: Make the ethics rules clear for our top judges

There is an official Code of Conduct that applies to all but nine of the thousands of federal judges in the United States.

Does it make any sense to exempt those nine members of the Supreme Court from a code that requires all judges “to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary?”

The code prohibits judges from being involved in political activities. It specifically bans speaking at a political event and any kind of political fund raising. Judges cannot belong to a club that discriminates based on race, sex, religion, or national origin. Judges are expected to conduct extrajudicial activities in a manner that minimizes the risk of conflict of interest with judicial obligations. Finally, there are strict guidelines about when federal judges should recuse themselves from cases in which they have potential conflicts of interest.

Senators Richard Blumenthal (D-CT.), Chris Murphy (D-CT), and Sheldon Whitehouse (D-RI) along with Representative Louise Slaughter (D-NY), recently introduced the Supreme Court Ethics Act of 2013. It would require the Supreme Court to adopt a code of ethics within 180 days of its passage.

Representative Slaughter said that the behavior of members of the Supreme Court has contributed to the erosion of public confidence in the institution. She cited a Gallup poll in which Americans’ approval of the Court stands at an almost all-time low of just 43 percent, while 47 percent disapprove. She went on to say that among her concerns were “Justices allowing their names to be used to promote political fundraisers, attending seminars sponsored by high-profile political donors, failing to report family income from politically active groups, and failing to recuse themselves when deciding cases where there exists a conflict of interest.”

She then cited some specific examples of conduct that “would seem to violate” the code that applies to all other federal judges. Justice Alito headlined the American Spectator magazine’s annual fundraising gala in 2009 and attended again in 2010. Justice Scalia attended an “overtly political gathering of conservative activists” including Charles and David Koch. The invitation to the gathering explicitly stated that Justice Scalia would be there and would help plan how “to change the balance of power in Congress.”

Supreme Court Justices file annual financial disclosure forms, but Justice Thomas failed for 20 years to report his wife’s income from the Heritage Foundation, a politically active think tank.

Questions have been raised by others about Justice Breyer’s attending Renaissance Weekends and Justice Ginsburg’s participation in a symposium sponsored by the National Organization of Women’s Legal Defense and Education Fund.

Whether any of these examples is or is not an ethical violation is not the main point. What must concern us is that, alone among individuals in the three branches of government, there are no checks and balances on Supreme Court Justices except in extreme cases that would warrant impeachment. Each Justice is his or her own judge of his or her behavior, beholden and accountable to no one else.

In his 2011 year-end report on the federal judiciary, Chief Justice Roberts summarized his position on concerns about the Court not falling under the Code of Conduct. He wrote:

“Every Justice seeks to follow high ethical standards, and the Judicial Conference’s Code of Conduct provides a current and uniform source of guidance designed with specific reference to the needs and obligations of the federal judiciary. The Code of Conduct is not, of course, the only source of guidance for Justices or lower court judges. Because it is phrased in general terms, it cannot answer all questions. And because the Code was developed for the benefit of the lower federal courts, it does not adequately answer some of the ethical considerations unique to the Supreme Court. The Justices, like other federal judges, may consult a wide variety of other authorities to resolve specific ethical issues. They may turn to judicial opinions, treatises, scholarly articles, and disciplinary decisions. They may also seek advice from the Court’s Legal Office, from the Judicial Conference’s Committee on Codes of Conduct, and from their colleagues. For that reason, the Court has had no reason to adopt the Code of Conduct as its definitive source of ethical guidance.”

I don’t think there should be any “mays” when dealing with a position as powerful as that of a Supreme Court Justice. We need to impose some “musts” instead. I realize that constitutional scholars have pointed out many difficulties in fashioning a working Code of Conduct for our highest court. That’s all the more reason to get started on one soon. Knowing that individual Justices are held accountable to the highest ethical standards is essential if we are to have faith in the integrity of their decisions.

Ted Kaufman is a former US Senator from Delaware.