H.R. 1 and Brett Kavanaugh

Democrats are kicking off the new Congress with hearings on H.R. 1, the For the People Act of 2019. The bill contains a blueprint for strengthening democracy through reforms in voting, campaign finance, and ethics in all three branches of government. It is massive, ambitious and long overdue. The bulk of the bill addresses access to the ballot and how to make those votes meaningful.  Buried deep in the lengthy proposal, however, there appears a longstanding proposal, discussed in excellent testimony, to subject Supreme Court justices to a code of conduct for the first time.  That provision provides the occasion for a crucial examination of the health of the Supreme Court, including the challenges raised by its newest member.

Brett Kavanaugh was confirmed by a Senate in which partisan fealty and a commitment to radically conservative ideology steamrolled concern about the integrity of the Court. The severely truncated process installed a nominee who was credibly accused of sexual assault. He lied to the Senate Judiciary Committee about a range of other matters, from his denial that he knowingly received memos stolen from Democratic Judiciary Committee staffers to the meaning of entries in his high school yearbook. His hearing proceeded without production of 90% of his official paper trail and the FBI was not permitted to conduct a full probe of the sexual assault allegations against him.  His second appearance before the committee featured angry, partisan, injudicious attacks – by the nominee. The process left a bitter aftertaste for anyone concerned about the future of the Court.

H.R. 1 offers the opportunity to put that aftertaste to work. Kavanaugh serves as the poster child for reforms to the Court’s ethics. Kavanaugh’s confirmation cemented the image of the Court as a profoundly political institution.  It continued the decades-long alliance between conservative politicians and the conservative legal movement to stock courts – and particularly the Supreme Court – with judges and justices who would apply conservative legal ideology to implement a conservative political agenda. The effort was fueled by Republican exploitation of the backlash against civil rights and Roe v. Wade, pushed by business interests such as the Chamber of Commerce, and given an intellectual veneer by the Federalist Society and its members. The drive to politicize the Court entered the homestretch with Mitch McConnell’s shameless refusal to consider Merrick Garland and the subsequent confirmation of Neil Gorsuch. It culminated in the confirmation of Kavanaugh, creating a Court with five extremely conservative members, all appointed by Republican presidents and ready to fulfill the dreams of conservative politicians.

This process has damaged what’s left of the image of the Court as an institution that operates outside politics, applying some apolitically derived version of law to facts. The Court’s legitimacy has been inextricably bound up in that image, which helps the public to accept its lack of democratic accountability. As that image fades, it becomes increasingly necessary to reassure the public through transparent and effective regulation of the conduct of the justices.

It is imperative that Congress force the Court to adopt a code of conduct and a process for enforcing it.  The Court should have done so long ago, but if it won’t do it now, Congress must step in.

All other federal judges are subject to a Code of Conduct and the Judicial Conduct and Disability Act of 1980, which established procedures for disciplining judges.  While violations of the Code of Conduct are not necessarily grounds for discipline, they are taken very seriously by judges.

Chief Justice Roberts has responded to past reform efforts by stating that justices are skilled jurists who should be trusted to apply the rules to themselves.  That approach flies in the face of the basic maxim of law that no person should be his or her own judge. It places Supreme Court justices in an unaccountable status that is virtually unique among government officials.

Roberts has also floated the notion that congressional regulation of judicial ethics may be unconstitutional. Yet, the Constitution has long been understood to allow Congress to establish the number of justices, how much they will be paid, and the scope of the Court’s docket. Congress has also subjected the Court to the same recusal statute that governs other federal judges and to financial disclosure obligations.  Imposing a requirement that the Court adopt an enforceable code of conduct falls well within these precedents.

Justices have repeatedly engaged in conduct that likely violated the standards applied to other federal judges, including appearing as headliners at events that raised substantial money and making politically charged comments. Perhaps most disturbing, justices decide for themselves whether they have a conflict that prevents them from participating in a case. There is no mechanism for review.  The decisions of lower court judges can be appealed. Justices generally do not reveal the basis for their recusal decisions, leaving present and future litigants in the dark about the standards they have applied. At the very least, greater transparency in the form of reasoned explanations is necessary.

Addressing these matters became more urgent with the confirmation of Justice Kavanaugh. His confirmation process generated eighty-three complaints of unethical conduct that were filed with the D.C. Circuit and covered conduct extending as far back as 2004. The Chief Judge forwarded the complaints to Chief Justice Roberts for assignment to a different Circuit for consideration.  After Kavanaugh’s Supreme Court swearing in, the Tenth Circuit called the complaints “serious,” but dismissed them because Kavanaugh was no longer a judge governed by the Judicial Conduct and Disability Act.  Kavanaugh’s confirmation should not have given him immunity from ethics enforcement.

Congress now has the opportunity to consider those complaints as the foundation for extending ethics requirements to the Supreme Court. It is important to understand what happened and to bring the Supreme Court into the ethics fold so that future investigations will not be similarly truncated. It is also crucial to the court’s legitimacy to assure the public that the newest justice’s conduct conforms to ethical standards.  Justice Kavanaugh will generate a stream of continuing questions about whether he should recuse himself from matters involving those he attacked so intemperately at his hearing. Can he fairly adjudicate matters involving the Democrats he attacked, people he alleged engaged in a conspiracy to block his confirmation, or anyone associated with the Clintons? Surely Kavanaugh, who demonstrated substantial bias in his testimony, should not be allowed to decide these matters on his own without the guidance of a code of conduct, a mechanism for reviewing his decisions, and explanation of his reasoning to the public.

Congress should hold further hearings to expand the factual record and pass this provision of H.R. 1.

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Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.