On Monday, October 7, 2024, HuffPost reported that a former federal judge and a watchdog organization are advocating for the establishment of a three-member ethics panel for the Supreme Court. This call comes in light of recent controversies involving undisclosed gifts and travel arrangements for Supreme Court justices, particularly from conservative groups.

Retired U.S. District Judge Jeremy Fogel, who is also the director of the Berkeley Judicial Institute, has teamed up with the organization Citizens for Responsibility and Ethics in Washington (CREW) to present this proposal. The suggested panel would primarily focus on providing confidential guidance to Supreme Court justices and would establish a process for challenging a justice’s ability to preside over cases due to potential conflicts of interest, personal biases, or prior involvement as legal counsel.

The push for a more stringent ethics framework follows public endorsements from Justices Ketanji Brown Jackson and Elena Kagan for a binding ethics code, as well as a recent reform initiative announced by President Joe Biden and Vice President Kamala Harris. This renewed effort comes on the heels of the Supreme Court’s decision to adopt a code of conduct for the first time in its history in November 2023, a move prompted by investigative reporting that highlighted ethical concerns surrounding the justices.

Fogel and Noah Bookbinder, the president of CREW, noted that the proposed ethics panel would mirror existing judicial oversight mechanisms currently in place in lower courts. The panel would consist of three retired circuit or Article III judges, all of whom would be drawn from the nation’s Committee on Judicial Conduct and Disability, part of the Judicial Conference of the United States.

The selection process for the panel members would be conducted by the chief justice. One member would serve a one-year term, with the possibility of extending their service for an additional three years. The second member would have a two-year term, and also eligible for three more years. The third member would begin with a three-year term, with no option for reappointment. Importantly, no member would serve more than a single three-year term.

Virginia Canter, the chief ethics counsel for CREW, emphasized the significance of the chief justice selecting panel members from this pool, asserting that it would enhance the panel’s independence and accountability. However, she also acknowledged the necessity for all involved, including the chief justice, to act in good faith to restore public confidence in the Supreme Court.

Recent polling from the Pew Research Center indicates that public trust in the Supreme Court has waned significantly, with less than half of Americans expressing a favorable view of the institution—an all-time low in nearly three decades. Justices Clarence Thomas and Samuel Alito have particularly drawn scrutiny due to their involvement in high-profile scandals. Thomas recently disclosed that billionaire Harlan Crow funded his trip to Bali in 2019, and he has faced criticism for accepting lavish vacations from Crow, including visits to elite gatherings.

Similarly, Justice Alito has come under fire for an undisclosed luxury vacation to Alaska in 2008, which was funded by GOP donor Paul Singer. Controversies surrounding both justices include accusations of failing to recuse themselves from cases related to the January 6 Capitol riot, despite significant public concern regarding their impartiality.

The proposed ethics panel would function as a confidential advisory resource for justices, allowing them to seek guidance on whether they should recuse themselves from cases. Additionally, it would provide a mechanism for individuals to challenge a justice’s impartiality if they believe it to be in question. Such requests would need to include a statement summarizing the issue, relevant facts, and a concise argument for disqualification. These requests would be made under penalty of perjury, ensuring they are not meant to harass justices or cause unnecessary delays.

Once a disqualification request is submitted, it would be reviewed by the Supreme Court’s Office of Legal Counsel to determine its validity. If deemed appropriate, the matter would then be referred to the ethics panel, which would conduct its own assessment and issue a confidential advisory opinion to the involved justice.

At the end of each year, the panel would report on the number of disqualification motions received and advisory opinions issued, although it remains unclear whether this report would be made fully public or only partially redacted. Likewise, it is yet to be determined if justices would be required to respond to these opinions.

 

 

Source: HuffPost