Gavel Grab

Wisconsin Supreme Court justices discussed changes to the state’s judicial ethics code on Friday, but couldn’t seem to decide on alterations to recusal rules, reports the Legal Newsline.

The justices held an Open Rules Conference on Friday to discuss Chief Justice Shirley Abrahamson’s proposed revisions. According to the article, Abrahamson would like to see the court follow provisions from  a code of conduct created by the American Bar Association.

Newly reelected Justice Pat Roggensack argued that the court should not be revising the code in an open meeting forum.

Justice David Prosser said he was worried that attorneys and special interest groups would abuse the new recusal rules, and use them to push certain justices off a case.

Both Abrahamson and Justice Ann Walsh Bradley are in support of making the changes in the open, the article says.

A criminal investigation of three Florida Supreme Court justices who are up for re-election in the fall constitutes “a threat to an independent judicial branch,” a Palm Beach Post editorial by Randy Schultz warns.

Entitled “Political witch hunt threatens Florida Supreme Court,” the editorial says that “politicians who disagree with how these justices have ruled want to corrupt the system.”

The Florida Department of Law Enforcement recently launched the investigation after receiving an inquiry from Gov. Rick Scott, a Republican; it initially was sought by state Rep. Scott Plakon, a Republican and critic of the state Supreme Court. At issue is the trio’s use of court employees to notarize last-minute paperwork for their bids in a retention (up-or-down) election.

Former Florida Justice Raoul Cantero, who was nominated to the court by then-Republican Gov. Jeb Bush, “said, correctly, that such notary work is common at the court,” according to the editorial. And two Republicans appointed to the court by then-Gov. Charlie Crist, another Republican, “had such work done when they were on the ballot two years ago,” it adds.

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Former U.S. Sen. Arlen Specter of Pennsylvania, saying the Supreme Court’s 5-4 “recurrent” ideological split has “shaken confidence in its integrity,” calls on Congress to set judicial recusal rules for the high court if the justices don’t act.

In a Washington Post op-ed, Specter also sounds off on the high court’s 2000 Bush v. Gore ruling ”in which the justices elected George W. Bush by one vote with a tortured interpretation of ‘threaten[ed]irreparable harm,’” and its 2010 Citizens United decision.

“Enormous expenditures from political action committees have turned the Republican presidential primaries into a billionaires’ auction and threaten to enable big money to elect our next president,” Specter, a former chairman of the Senate Judiciary Committee and Republican-turned-Democrat, writes about the aftermath of Citizens United.

The high court will hear oral arguments in the federal health care case next week, with all of its justices expected to be present. That’s despite calls by groups and individuals for recusal by Justices Elena Kagan and/or Clarence Thomas, along with proposals for the court to formally adopt an ethics code spelling out procedures for recusal by a justice (see Gavel Grab).

Specter touches on the high court’s landmark judicial recusal ruling in 2009, Caperton v. Massey, in urging the justices to formally adopt recusal standards:

“Starting with the 17th-century principle from Lord Coke that ‘no man can be a judge in his own case,’ Justice Anthony M. Kennedy wrote in the Caperton decision that a judge ‘accused of bias’ should not be ‘the sole trier of fact’ on ‘inquiring into actual bias.’ Why wouldn’t that rationale apply equally to require review of a Supreme Court justice’s decision to sit under questionable circumstances, at least a review by his or her colleagues?”

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A federal judge’s decision whether to recuse when faced with a potential conflict of interest cannot be left to the judge alone to decide, but must be reviewed by other jurists, a New York Times editorial argues in advocating the same standard for Supreme Court justices.

The editorial is entitled, “A Way Forward on Judicial Ethics.” It suggests that a proposal by legal ethics expert Stephen Gillers of the New York University School of Law would be a “sensible recusal process” for the high court to adopt.

Under Gillers’ proposal, if a justice decided against recusing when he received such a motion, either the chief justice or senior associate justice — if the motion concerned the chief justice — would weigh whether the motion was meritorious. If it was deemed to have merit, he would send it to the full court for a written decision, with the justice at issue not participating. A majority would be required to mandate a justice’s recusal.

“This approach would add little to the court’s workload since recusal motions are rare. But it would add considerably to the court’s credibility with the American public,” the editorial says.

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BULLETIN: Chief Justice John Roberts Jr. has told Congress that the Supreme Court has no plans to formally adopt rules binding it to the same code of conduct that governs other federal judges, the Associated Press reported.

The Supreme Court’s lack of openness in dealing with ethics questions and in refusing to permit televised oral arguments has undermined public trust in the court, a New York Times editorial says.

Entitled “Trust and the Supreme Court,” the editorial agrees with Chief Justice John Roberts Jr.’s recent assertion that it is the prerogative of the court, not Congress, to set rules for the court’s operations.

At the same time there is another way for the high court to bolster public confidence at the same time it responds to a bill advancing in the Senate for televising its public proceedings, and to a request from five Democratic senators to announce its ethics policies, the editorial says:

“They are good indicators of public concern, and the justices should take heed. The court should embrace sensible ethics rules and broadcast requests on its own.”

“With trust in government generally low, the justices need to find ways to bolster the public’s confidence without diminishing the court’s independence.”

To learn more about the Senate legislation, click here for Gavel Grab; and about the debate over an ethics code for the justices, click here.

“Clear and forthright standards” for recusal of Supreme Court justices “would enhance the court’s credibility and the public’s trust,” a New York Times editorial said in urging the high court to adopt a “transparent process” on recusal requests.

As congressional liberals call for Justice Clarence Thomas to step aside from reviewing the new federal health care law, and conservatives seek recusal by Justice Elena Kagan, legal ethics experts say a good case for recusal hasn’t been marshaled. But the editorial said the current picture isn’t pretty:

“[C]onflict-of-interest charges diminish the court and draw it further into politics. This latest fight should leave no doubt that when concerns are raised about a justice’s impartiality, it should not be left to that justice to decide whether to withdraw from the case.”

The justices are the only federal judges who aren’t covered by an ethical code of conduct, and there are sound standards guiding recusal decisions in the lower federal courts. But the Supreme Court has not spelled out such rules, and its justices rarely explain their actions Read more

In a growing debate over ethics rules for Supreme Court justices, a Brookings Institution scholar says it’s hard to regulate justices’ conduct without causing more problems, and he suggests some incremental steps.

Russell Wheeler, a Visiting Fellow at Brookings, suggested these ideas in an online paper:

• It “is worth considering” a requirement that justices disclose their reasoning for a decision on recusal, he wrote. (Justice at Stake recently said Justices Clarence Thomas and Elena Kagan should strongly consider giving a public explanation of their reasons for not recusing from the federal health care case.)
• The justices could adopt standards to guide whether recusal is merited in particular case and describe ways for justices to advise colleagues about recusal.
• “If the Court has adopted resolutions pursuant to the delegations of regulatory authority under the various ethics acts, or concerning the [judicial] Code of Conduct, why can’t they be made public?”

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The Alliance for Justice (AFJ) weighs in on continuing calls to implement a Code of Conduct to the U.S. Supreme Court in a Huffington Post article. Introducing a new video, AFJ President Nan Aron says the public’s confidence in the Court is greatly reduced by the absence of an ethics code that applies to all other federal judges.

Aron argues that the general public must perceive judges as impartial arbiters of the law, rather than partisan agenda-setters, in order for the judiciary to function effectively:

“Everyone who walks into a courtroom needs to know they will get a fair hearing before a judge who has not pre-judged their case as part of a political agenda. …As a country rooted in the rule of law, we simply can’t afford to have Supreme Court justices who feel unconstrained by the same formal ethical standards that bind all other federal judges. The code prohibits participation in political activities. It bans serving as the keynoter at fundraising events, no matter how seemingly benign. It instructs judges not to do anything that creates even the ‘appearance of impropriety.’ ”

A new Alliance for Justice short film, A Question of Integrity: Politics, Ethics, and the Supreme Court,

httpv://www.youtube.com/watch?v=GMoawSfR-No

provides examples of questionable ethical conduct by the Justices. Among these are Justice Thomas’ and Scalia’s trips to a Federalist Society conference hosted by the Koch brothers and keynote speeches by Justice Alito at American Spectator magazine and Intercollegiate Studies Institute fundraisers.

Forty-three House Democrats are pushing for a House Judiciary Committee hearing on a bill that would apply to Supreme Court justices the same ethics code that other federal judges are required to follow, according to a New York Times article.

Ethics questions have been raised about the conduct of certain justices in connection with appearances at political events, with the acceptance of favors from a conservative contributor, and regarding the work of Justice Clarence Thomas’s wife, Virginia Thomas, on behalf of conservative causes. Justices from both the liberal and conservative wings of the court have been targeted by critics who ask whether the conduct erodes public confidence in an impartial court.

Murphy’s legislation, which was the subject of earlier Gavel Grab posts, would have the Judicial Conference establish a process for investigating ethics complaints about justices, and justices would be required to explain why they did or did not recuse from hearing a case. If a justice declined to step aside from hearing a case, the rest of the court could disqualify him or her.

The fresh perspective that legal analyst Dahlia Lithwick, a Canadian, brings to writing about U.S.  judicial affairs is on display again. In Slate, she asks whether questions that were recently raised about Supreme Court ethics have gotten any traction.

Her commentary is headlined, “Senility v. Impropriety: Do Supreme Court justices worry more about appearing senile than they do about appearing unfair?” She examines public utterances by justices and former justices to arrive at an answer:

“While the justices are quite open about discussing their fears of overstaying their welcome on the job, they are loath even to consider questions about whether they have been compromised by financial or personal dealings with parties to the cases pending before the court. … The appearance of senility seems to be a larger worry than the appearance of impropriety.”

As Gavel Grab has reported earlier, questions have been raised about the ethics of some conservative justices, and the court has been urged to adopt the ethics code that governs judges who sit on lower federal courts. Some conservatives, in turn, have questioned whether Justice Elena Kagan — a former U.S. solicitor general — should recuse herself from any health care law challenges coming before the high court. Read more