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Judicial Ethics

Joyce Vance Dec 11

Yesterday, Third Circuit Court of Appeals Judge Emil Bove attended an event where Donald Trump spoke. That’s an unusual thing for a federal judge to do, even when the president in question is his former client. Federal judges usually avoid political events like the plague.

Doing so would seem especially prudent when the Judge in question is newly appointed to the bench after a confirmation hearing that included testimony about the role he played in the government’s decision to ignore Judge James Boasberg’s order in the El Salvador deportation case. Bove has said that testimony from a whistleblower claiming he said “D.O.J. would need to consider telling the courts ‘fuck you’ and ignore any such order,” isn’t true. He recently submitted a declaration in that case that he provided “privileged legal advice” to others in that matter, without going into the substance of it. Attending a presidential speech in the middle of all of that might have struck other judges as unwise.

The Judicial Conduct and Disability Act of 1980 (“Act”), 28 U.S.C. §§ 351–364, and the Rules for Judicial-Conduct and Judicial-Disability Proceedings (“Rules”) govern the process for making a complaint against a federal judge. You may recall from our past discussions that U.S. Supreme Court justices are not subject to an ethical code. But the rest of the federal judiciary is. And anyone can file a complaint about a federal judge. The Act establishes the process for making them. The Code of Conduct for federal judges says “a judge should refrain from political activity” and shouldn’t attend any events “sponsored by a political organization or candidate.” Judges are also charged with upholding the integrity and independence of the judiciary and avoiding impropriety and the appearance of impropriety in all activities.

There are limits on the type of complaints that can be made. The judicial conduct and disability review process cannot be used to challenge the correctness of a judge’s decision in a case. The process is for complaints about a judge’s conduct. Any person can file one if they believe a federal judge has engaged in “conduct prejudicial to the effective and expeditious administration of the business of the courts” or has become, by reason of a mental or physical disability, “unable to discharge all the duties” of the judicial office.

Complaints go to the Chief Judge of the Circuit where the judge a complaint is filed against sits. It’s up to that Chief Judge to conduct an initial investigation and determine whether the complaint should be dismissed, for instance, because it’s a complaint about how a judge ruled in a case, or whether there is a sufficient reason to appoint a special committee of judges to investigate the alleged misconduct. The Chief Judge must dismiss a complaint where, even if the allegations were true, they would not rise to the level of a situation that is prejudicial to the effective and expeditious administration of the business of the courts. The Chief Judge must also dismiss the complaint if the allegations are frivolous.

Most complaints end with a dismissal, but in some cases, there is an investigation, and it can be significant. When it’s concluded, the special committee submits a report of its findings and recommendations to the judicial council. The council can dismiss a case at this state, or conclude it because corrective action has been taken. But it also has a range of more serious consequences it can impose:

If the order does not dismiss or conclude your complaint, the order may sanction the judge with a range of remedies including:

• “censuring or reprimanding the judge, either by private communication or by public announcement;

• ordering that no new cases be assigned to the judge for a limited, fixed period …

• in the case of a circuit or district judge, requesting the judge to retire voluntarily…

• in the case of a circuit or district judge who is eligible to retire but does not do so, certifying the disability of the judge so that an additional judge may be appointed …

• recommending corrective action”

The speech Bove attended was what he might have expected—highly partisan. Bove is one of Trump’s former lawyers, so he is well acquainted with him. Trump was more political than presidential, railing against “the radical left Democrats in Congress” and calling Joe Biden “the worst president in the history of our country.” He also lambasted his former political opponent, Minnesota Governor Tim Walz, who was the Democrats’ Vice Presidential nominee in 2024, as “one of the dumbest governors ever in our history.”

At least one ethics complaint has already been filed against Bove and there are likely to be more.

Bove told MS NOW reporter Vaughn Hillyard that he was “just here as a citizen coming to watch the president speak.”

The complaints against Bove may get traction or they may go nowhere. But that’s not the point. Federal judges shouldn’t engage in arguably improper behavior and then shrug it off by claiming they did it in their personal capacity. I was taught as a U.S. Attorney that I didn’t even have a personal capacity; that I was on the job, working for the American people, 24-7. The same is true of federal judges. They get life tenure. In exchange, they should refrain from behavior that is arguably permissible if it could damage the integrity of the judiciary or create even an appearance of impropriety. That’s the job. If you don’t want it, then don’t become a federal judge. Otherwise, you might just as well say “F*** the courts.”

If Civil Discourse helps you make sense of the legal and political whirlwind we’re all living through, I hope you’ll consider becoming a paid subscriber. It’s your support that lets me devote the time and care this work deserves.

We’re in this together,

Joyce

My slate of the most sweeping set of anti-corruption plans since Watergate.

 

Here's the way I see it: The American people should have complete confidence that government officials are making decisions with only one factor in mind: the public interest. Not their own pocketbooks. Not their future job prospects in the private sector. Not the wishes of big donors and giant corporations. The public interest. So I’ve got a whole bunch of plans to root corruption out of Washington. Some are more specific, like my Department of Defense Ethics and Anti-Corruption Act, which would limit the influence of contractors on the military, constrain foreign influence on retired senior military officers, and require greater transparency from contractors in their interactions with the Pentagon. Or my Judicial Ethics and Anti-Corruption Act, which would strengthen ethical standards up and down our judiciary, impose an enforceable code of conduct on the Supreme Court, and ban federal judges from owning individual stock. Or my Presidential Conflicts of Interest Act, which would require the president and vice president to disclose and divest from any potential financial conflicts of interest. That’s a standard that President Joe Biden and Vice President Kamala Harris have already cleared — and that all their successors should be held to. Especially after we saw Donald Trump run the most corrupt administration in modern history. Or my bipartisan legislation to reform the Federal Reserve, which would bar big bank executives from serving on Reserve Bank boards of directors, subject directors to ethics and financial conflict of interest rules, and bring increased transparency and accountability to the Fed. And then I’ve got my big plan: the Anti-Corruption and Public Integrity Act. It’s the most sweeping set of reforms since Watergate. And it would fundamentally change the way Washington does business, including… Banning all individual stock ownership by members of Congress, Cabinet secretaries, senior congressional staff, federal judges, White House staff, and other senior agency officials while in office. Prohibiting all federal officials from holding or trading stock if its value might be influenced by their agency, department, or actions. Tightening conflict of interest and recusal requirements. Padlocking the revolving door between industry and government. Creating a new, independent anti-corruption agency dedicated to enforcing federal ethics laws. Expanding an independent and empowered Congressional ethics office. All of these plans have two things in common. They’re about putting our government on the side of the people — not the powerful special interests. And they’re only possible if we grow and strengthen our grassroots movement. That’s how we beat Big Money. Every donation is another signal that the American people are demanding real change and calling for a country that works for everyone, not just the rich and powerful. I’m deeply grateful to fight by your side. Thanks for being a part of this, Elizabeth

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Sign the petition: Ethics reform to stop Amy Coney Barrett!

 

Amy Coney Barrett’s husband is a lawyer specializing in “white-collar criminal defense, internal investigations, and complex commercial litigation” whose firm has represented “over 25 Fortune 500 companies.”¹ If one of his clients winds up in a case before the Supreme Court, his wife, Justice Barrett, could not be trusted to rule fairly.

But Justice Barrett won’t disclose the name of her husband’s law firm. (It’s SouthBank Legal.) Let alone a list of his clients.

Justices Amy Coney Barrett, Clarence Thomas, and John Roberts are all failing to disclose their spouses’ work and recuse themselves when necessary.¹ It’s time for Congress to step in and tackle corruption on the Supreme Court.

Sign the petition: Pass the Judicial Ethics and Anti-Corruption Act, legislation creating a Code of Ethics for Supreme Court justices and their spouses!

We shouldn’t have to guess whether Justice Amy Coney Barrett and Chief Justice John Roberts are recusing themselves from cases in which their families have a vested interest. This lack of transparency is unacceptable.

But the case of Justice Clarence Thomas is even worse. We know that Justice Thomas’s wife, Ginni Thomas, was a key player in the Trump coup attempt² — yet Thomas refuses to recuse himself from cases related to the 2020 election.

Thomas recently shielded Lindsay Graham from testifying before a grand jury about his involvement in trying to overturn fair election results in Georgia in Trump’s favor.³

In January 2021, Clarence Thomas was the only justice who sided with Trump in a case determining whether the January 6th Committee could access Trump White House records.²

And later this term, Thomas could be allowed to rule on a case with terrifying implications for our democracy: Moore v. Harper. Essentially, the court will determine whether states can overturn election results and ignore the will of the people.⁴

Congress must pass the Judicial Ethics and Anti-Corruption Act, legislation banning Members of the court from trading individual stocks, requiring the court to adopt a Code of Ethics, overhauling the recusal process, and more.

Supreme Court Justices keep proving they won’t act ethically on their own. It’s time for Congress to force them to do it.

Sign the petition: Pass the Judicial Ethics and Anti-Corruption Act, legislation creating a Code of Ethics for Supreme Court justices and their spouses!

Thanks for taking action,

Izzi and the team at Demand Progress

Sources:
1. Politico, “Justices shield spouses’ work from potential conflict of interest disclosures,” September 29, 2022.
2. Washington Post, “Virginia Thomas urged White House chief to pursue unrelenting efforts to overturn the 2020 election, texts show,” March 24, 2022.
3. CNN, “Clarence Thomas freezes order for Lindsey Graham to testify before Georgia grand jury investigating 2020 election,” October 24, 2022.
4. SCOTUS Blog, “Moore v. Harper,” September 21, 2022.

RSN: FOCUS: Dahlia Lithwick and Mark Joesph Stern | Alito's Speech Mocking Foreign Leaders Has a Deeper, Darker Message

 

 

31 July 22

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FOCUS: Dahlia Lithwick and Mark Joesph Stern | Alito's Speech Mocking Foreign Leaders Has a Deeper, Darker Message
Dahlia Lithwick and Mark Joesph Stern, Slate
Excerpt: "It speaks volumes about Samuel Alito that, in the face of international outrage over the impact of this ruling on the lives of millions of women, he centered himself and his own feelings."

To the justice, “secular society” poses a threat to religious freedom—and state-sponsored indoctrination is the only solution.

Last Thursday, Justice Samuel Alito gave a talk in Rome sponsored by the University of Notre Dame Law School’s Religious Liberty Initiative. His remarks, which can be viewed here, were ostensibly about religious liberty, but Alito also used them to showcase his comedy stylings. After a ten-year-old rape victim crossed state lines to terminate her pregnancy, and while miscarrying patients are bleeding out in Texas before being allowed to receive life-saving medical treatment, Alito thought the Rome speech was the right time and place to mock international criticism of his opinion overturning Roe v. Wade.

It speaks volumes about Samuel Alito that, in the face of international outrage over the impact of this ruling on the lives of millions of women, he centered himself and his own feelings. His snarky little potshots at Prince Harry and Boris Johnson were not so much “jokes” about world leaders as personal petulance over international criticism, cloaked in the insistence that Alito doesn’t care what these world leaders think of him.

But to focus on Alito trolling American women, reproductive justice advocates, his liberal colleagues on the bench, and his international critics is to take his feeble bait. Alito is quite transparent about the fact that he delights in disapproval. He invites it! He welcomes it! His “comedy” is actually just a distraction from his gleeful effort to decimate whatever remaining legitimacy the Supreme Court still possesses in the eyes of the secular, liberal world order. Focus on that fact and there is really nothing hilarious to report from Rome at all.

For starters, there is the breathtaking conflict of interest at work when a justice gives faith-based speeches at faith-based events sponsored by faith-based parties who file briefs before the court. We only found out about this speech a week later when Notre Dame released the video, because the justices have no obligation to publicize or record their public speeches. The Rome event’s sponsor, Notre Dame Law School’s Religious Liberty Initiative, was founded about four months before Justice Amy Coney Barrett joined the Supreme Court in 2020. As Gabe Roth of Fix the Court, a nonprofit that promotes judicial ethics reforms, noted in an email Thursday, RLI and its affiliated professors “have filed amicus briefs in several SCOTUS cases, and they have a near-perfect record.” (Naturally, these professors filed a brief in Dobbs v. Jackson Women’s Health Organization urging the reversal of Roe.) As Roth further pointed out, we won’t know if RLI financed the trip until mid-June 2023, when it must be disclosed under current law. For now, the image of a tuxedo-clad Alito chumming it up with the same conservative lawyers who are involved in cases before the court creates the unseemly impression of judicial indifference toward basic judicial ethics rules.

It’s no wonder that public confidence in the Supreme Court has plummeted to historic lows. A new Marquette poll shows the high court with a 38 percent approval rating, down from 60 percent last July; a recent Gallup poll shows that just 25 percent of Americans are very confident in the court.

The conservative justices, though, can’t hear the alarm bells over the cacophony of the trumpets of jubilee playing in their ears. Justice Clarence Thomas used a public speech this past spring to insult Chief Justice John Roberts and his colleagues. And with his Rome speech, Alito ripped away even the pretense that he cares about public regard for the institution. Quite the opposite. He clearly revels in the plummeting approval ratings and the international and domestic loathing. He takes it as a sign that his religious liberty project matters: The more the godless, or as he put it, the adherents of “the new moral code,” hate him, the more certain he is that he is correct.

Which brings us, of course, to the godless, whom Alito believes must be educated, by him, about their own ignorance. He concluded his speech paraphrasing a quote from St. Augustine’s Confessions (“Our hearts are restless until we rest in God”) and closed with the promise that “the champions of religious liberty, who ‘go out as wise as serpents and as harmless as doves’ can expect to find hearts that are open to their message.”

In case this fact wasn’t already clear from his jurisprudence, Alito boasted that his vision of free exercise centers on proselytization and state-sponsored indoctrination. (It is ironic that, despite Pope Francis’ warning against “proselytism,” Alito has identified it at the indispensable core of free exercise.) The justice also fretted that in “economically advanced countries,” religious liberty faces a “challenge”: Our “increasingly secular society,” the justice asserted, is in the midst of “a turn away from religion.”

One might reasonably wonder why Alito would frame secularism as a threat to religious freedom. Plainly, the Framers of the First Amendment did not share this view: They quite deliberately created a secular government through the establishment clause while enshrining an individual right to religious liberty through the free exercise clause. To them, secularism was not a menace to religion, but a crucial component of it: History taught them that once the government got involved with matters of faith, it harmed both church and state.

Alito sees things differently. “Polls show a significant increase in the percentage of the population that rejects religion or thinks it’s just not all that important,” he told the crowd in Rome. “And this has a very important impact on religious liberty, because it is hard to convince people that religious liberty is worth defending if they don’t think that religion is a good thing that deserves protection.” He continued:

There’s also growing hostility to religion, or at least the traditional religious beliefs that are contrary to the new moral code that is ascendant in some sectors. The challenge for those who want to protect religious liberty in the United States, Europe, and other similar places is to convince people who are not religious that religious liberty is worth special protection. And that will not be easy to do.

That “new moral code”? It’s a thinly veiled reference to the progressive values that define a flourishing liberal democracy: LGBTQ rights, women’s equality, secular public education, a humane criminal justice system—everything Alito despises. It’s worth noting that the targets of his “jokes” span the ideological spectrum, from a conservative (Johnson) to a centrist (Macron) to a liberal (Trudeau). Yet they all defended fundamental reproductive rights after Dobbs. And to Alito, this fact illustrates the atheistic corruption of contemporary society, regardless of politics; a godless consensus that faith-based convictions held by some should not dictate the laws that govern us all.

If you are not very frightened by the prospect of a Supreme Court justice crossing the ocean in order to quote the Gospels to religious adherents of his own faith, who have business before the court, as he excoriates all who do not share his personal view of the primacy of religion as an organizing force in a political democracy, it’s difficult to know what could alarm you. The Framers attempted to strike a careful balance between religious liberty and secular moral values. Alito would like you to know that for the foreseeable future, the latter is the enemy, and will be vanquished and mocked.

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Deep sadness and downright anger

 

May 28, 2022

The past two weeks have been tough, most recently for the families in Texas who had parts of their souls ripped from them when a gunman senselessly murdered their children. Here at POGO, we’re wavering between deep sadness and downright anger. Over this extremely short period, we’ve seen a racist massacre at a grocery store in Buffalo, New York, a deadly shooting at a Taiwanese church in California, and now mass murder at an elementary school. This all comes at the two-year anniversary of George Floyd’s death at the hands of a police officer. We’re left stewing in a sense of hopelessness, knowing that our government won’t do anything about the violence plaguing our nation. But hopelessness isn’t part of our mission statement at POGO. While we’re not experts on gun control, we do hope this is a wake-up call for the Senate. The chamber must reform the filibuster and make it harder for the minority in the Senate to block legislation from even being debated. We cannot go on with this current, broken system. We don’t have any illusions that filibuster reform alone will solve the gun crisis in our country. If only it were that simple. But it would be a positive step forward for our gridlocked legislature; it would chip away at the paralysis in our government that prevents lawmakers from meaningfully responding to any number of crises we face in America. We gave ourselves a couple of days to simply be sad and angry. And while we’ll continue to hold these victims and their families in our hearts, we’ll now continue our push for a government that works for the people, not just the few depraved souls in power who hold progress hostage. LISTEN NOW Episode 4: It’s Good To Be The King Hosts Walt Shaub and Virginia Heffernan discuss how presidential power has increased and what we can do to restore proper checks and balances. Listen, rate, and review now. ANALYSIS How to Protect Yourself from Surveillance While Seeking Reproductive Health Care The Supreme Court draft opinion overturning Roe v. Wade has raised huge questions about abortion and the future of reproductive health care. We provide answers on how numerous surveillance powers can be harnessed against individuals to enforce bans. Read More ANALYSIS Congress, Don’t Lose the Plot on Judicial Ethics Supreme Court ethics reform is a commonsense good-government reform, backed by nearly three-quarters of the public. Read More LETTER POGO Endorses Legislation to Establish an Inspector General for the Office of the United States Trade Representative An inspector general would provide the agency with much needed oversight, transparency, and accountability. Read More QUOTE OF THE WEEK “Sometimes I think the real story is what is legal but doesn’t necessarily … inspire public confidence in policymaking at the federal level. And this, I think, could be a good example of that.” Liz Hempowicz, Director of Public Policy, in Politico OVERHEARD ONE LINERS “There is substantial reason to believe that Rep. Cawthorn may have committed insider trading or some other manner of impropriety.” Dylan Hedtler-Gaudette, Government Affairs Manager, in the Washington Examiner   “A lot of these fancy electronic systems end up being more of a distraction than they are actually useful in helping soldiers do their jobs.” Dan Grazier, Senior Defense Policy Fellow, in The Intercept

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