In 2019, U.S. presidential candidate Senator Elizabeth Warren presented a bold and compelling "plan" to reform a judicial system that, over the years, has become increasingly insular, abusive and out of control as a result of self-governance and the lack of external policing.  Her assessment and proposed solutions to restore fairness to the federal judiciary are presented below.
 


Restoring Trust in an Impartial and Ethical Judiciary
 
Its time to strengthen the integrity and impartiality of the federal judiciary
 
Elizabeth Warren
 

In December 2017, more than fifteen female law clerks alleged1 that Ninth Circuit Judge Alex Kozinski committed sexual misconduct and created2 a "hostile, demeaning and persistently sexualized environment" for employees. According to their accounts, Kozinski inappropriately touched female clerks and showed them pornography in his chambers.

Sen. Elizabeth Warren
Senator Elizabeth Warren
(D-Massachusetts)

It wasnít the first time3 he was accused of misconduct. But what did Judge Kozinski do when the judiciary started to investigate? He retired.4

And because of inadequate ethics laws, the investigation ended immediately. Meanwhile, Kozinski continues to collect5 his taxpayer-funded pension for life.6

The Kozinski case is just one example of the broader problem of accountability in the federal judiciary.

Donald Trumpís sister Maryanne Trump Barry ended an investigation7 into the Trump familyís potential tax fraud and other tax schemes8 by resigning from the bench.

Justices Clarence Thomas and Antonin Scalia did not recuse9 themselves from Citizens United v. FEC, the case that opened an avalanche of money in politics to the benefit of people like the Koch brothers, who invited the pair to multiple all-expenses paid retreats.10

And several judges have ruled on cases11 while owning stock in a company that was a party to the case, violating existing conflicts-of-interest rules12 that expressly prohibit this practice.

The basic premise of our legal system is that every person is treated equally in the eyes of the law — including judges. Our judiciary only functions properly when it lives up to this promise, and it risks eroding its legitimacy when the American people lose faith13 that judges are ethical and fair-minded.

Thatís why today Iím announcing my plan to strengthen the ethical integrity and impartiality of the federal judiciary. Itís time to ensure that judges do not hear cases where they have conflicts of interests, strengthen our nationís ethics rules for judges, and ensure accountability for judges who violate these rules. Recusing Judges and Supreme Court Justices with Conflicts of Interest.

In 2011, Eleventh Circuit Court of Appeals Judge James Hill ruled in favor of Johnson & Johnson14 in a case brought by a woman who suffered from a malfunctioning medical implant. He did so while owning as much as $100,000 in the company's stock. The same judge ruled on three other cases involving companies in which he owned stock — and ruled in favor of the company each time. Judge Hill, unfortunately, is not alone: one study identified 24 cases in which judges owned stock in a company that appeared before them in court.

Itís time to strengthen the integrity and impartiality of the federal judiciary.

A basic principle of our federal judicial system is that judges make decisions as disinterested, impartial observers — stepping aside when they may not be able to decide cases objectively. This principle should also bar judges from being the final arbiter of whether they can be objective in the first place.

Itís time for fundamental reform:

• Prohibit judges from deciding for themselves whether they should recuse from a case due to a conflict. When a litigant believes that a judge cannot consider a case in an unbiased manner, the litigant may file a recusal motion asking for another judge to decide the case instead. But our current system gives judges enormous discretion to decide for themselves15 whether to grant recusal motions where their objectivity is challenged. My plan will instead empower the Chief Judges within regional circuits to establish a binding recusal process. It will also require courts to publish its reasons any time judges are disqualified from a case without a recusal motion, including when judges voluntarily recuse or when an automated conflict-checking software16 disqualifies them.

• Ban judges from owning or trading individual stocks. Itís not enough for judges like James Hill to recuse in cases with conflicts of interest — my plan would eliminate the appearance of impropriety by banning federal judges from owning or trading individual stocks, while allowing them to instead invest in conflict-free mutual funds or open new investment accounts managed by the Federal Retirement Thrift Investment Board. Law firms follow rules like these to avoid the appearance of financial conflicts with the interests of their clients. Judges should certainly be held to the same standard.

• Require Supreme Court Justices to provide written explanations of recusal decisions when a litigant challenges for recusal. If a Supreme Court Justice has a conflict of interest, they are ethically obligated to recuse themselves from considering a case, but the law allows them to deny recusal motions without even providing an explanation.17 Under my plan, when a party asks for a Justice to recuse, the Judicial Conference will issue a non-binding, public advisory opinion with its recommendation — and the challenged Justice will publicly explain their final recusal decision in writing. Because all recusal decisions will be a matter of public record, future litigants will understand these conflicts and know when to bring recusal decisions of their own.

Strengthening Ethics Rules for All Judges

Every lawyer in America is subject to ethics rules.18 Federal judges are generally subject to a Code of Conduct19 that applies the most basic of these principles to members of the judiciary.

But there is no Code of Conduct20 for Supreme Court Justices.

That means that Supreme Court Justices can go on trips with litigants, like Justice Scalia did when he heard a case involving Vice President Cheney after going hunting with him21 — without an independent ruling on whether it was proper to do so. It means Justices can receive large speaking fees and all-expenses paid trips to fancy conferences, like Justice Thomas did when the Federalist Society, an extremist right-wing legal group, flew him to Palm Springs22 and paid for meals and transportation for four days. And it means that someone like Brett Kavanaugh23 can face accusations of lying to Congress — without a full and fair investigation24 by the judiciary. These actions could violate the Judicial Code of Conduct,25 but because unlike all other federal judges these Justices are not bound by a code of ethics, they are immune from any judicial investigations into misconduct.

We must act now to fix this - and that means strengthening the Code of Conduct for all judges.

Hereís where I would start:

• Extend the Code of Conduct to Supreme Court Justices. When Judge Kavanaugh was elevated to the Supreme Court, 83 ethics complaints that had been lodged against him were dismissed26 — and because the Supreme Court is not covered by a Code of Conduct, no procedure exists to file new complaints. Questions are often raised27 about the behavior of Supreme Court Justices, such as Justice Thomas's 13 years of financial disclosures that failed to list28 $690,000 in payments to his wife from the Heritage Foundation, a right-wing judicial activist group — but these actions are beyond the scope of current rules. Enough. My plan applies the Code of Conduct for United States Judges29 to Supreme Court Justices — and places the Judicial Conference in charge of violations. My plan also allows individuals to file complaints against Supreme Court Justices, just like they can against all other federal judges.30

• Strengthen the Code of Conduct to ensure a fair and impartial judiciary. When judges accept gifts or financial contributions from interested parties, public trust in a fair-minded judiciary erodes. My plan strengthens the Code of Conduct so that judges generally cannot receive paid speaking fees or all-expenses-paid trips from outside organizations.31 To ensure that judges continue to interact with the public without the appearance of impropriety, my plan also establishes a modest fund to help cover reasonable expenses.

Real Enforcement for Judicial Misconduct

When a lawyer violates the ethics rules, their stateís judiciary can investigate their behavior and impose disciplinary punishment, including stripping their licence to practice law.32

But the panels33 of judges that investigate judicial conduct complaints have limited disciplinary power34 beyond asking the judge to voluntarily resign or asking the House of Representatives to consider impeachment proceedings — a request the House is free to ignore.

Itís time for real accountability for judges.

Hereís how weíll start:

• Continue investigations into judicial misconduct even when a judge resigns from office or is elevated to the Supreme Court. In 2016, Federal District Court Judge Walter Smith faced a judicial investigation into allegations of sexual harassment35 of court employees and drinking36 on the bench while presiding over cases. Judge Smith resigned, and the complaints filed against him were dismissed. My plan extends the authority of the Judicial Conference to former judges so that individuals under investigation cannot simply resign from the bench to avoid accountability. This provision would allow the judiciary to reopen the investigations into Alex Kozinski,37 Maryanne Trump Barry,38 Brett Kavanaugh,39 and any other judge who benefited from this loophole.

• Provide strong disciplinary authority to judicial ethics watchdogs, including the ability to strip non-vested taxpayer-funded pensions from judges. Under todayís rules, even if retired judges could be investigated, the Judicial Conference has no meaningful tools to discipline them. American taxpayers are paying for the more than $180,000-per-year retirement pay of Judge Smith, Judge Kozinski, Judge Trump Barry, and several other judges who left office during investigations into their behavior. We need to restore real accountability within our judiciary. Thatís why my plan provides disciplinary tools to the Judicial Councils and their parent organization, the Judicial Conference, including the ability to strip sitting or retired judges of their non-vested pension benefits by making retirement pay for new judges explicitly contingent on the absence of serious misconduct. In addition to strengthening these disciplinary tools, my administration will also work to prevent judicial misconduct against employees and law clerks by supporting strong climate surveys,40 questionnaires to court employees about the work environment in our federal courts, to help the judiciary understand how to improve the culture within our courts.

• Create a new, fast-track impeachment process for federal judges who commit impeachable offenses. The Constitution reserves the impeachment of judges for only the most egregious offenses.41 But when a judge commits a serious offense or ethical violation, we need to make sure that there is a prompt investigation — and that Congress takes action. Itís time to fast-track the process42 for judges who commit impeachable offenses. My plan would strengthen the process to certify that a judge may have committed an impeachable offense, and would ensure that any impeachment referrals will trigger a series of automatic rules under which the House Judiciary Committee will conduct a thorough investigation and vote without unnecessary delay.

These reforms will ensure that judges who commit serious, impeachable offenses will more likely be promptly removed from office. These changes will not only allow us to ensure accountability for bad actors, including reopening inquiries into the conduct of offenders like Brett Kavanaugh. They will also hold the vast majority of judges who act in good faith to the highest ethical standards, and in the process, begin to restore accountability and trust in a fair and impartial federal judiciary. Help our campaign keep fighting.

We're counting on grassroots donors to make this campaign possible.

Copyright 2019, WARREN FOR PRESIDENT


Adapted from: Plans, Elizabeth Warren: "Restoring Trust in an Impartial and Ethical Judiciary," https://elizabethwarren.com/plans/restore-trust, accessed 12/10/2019.  Reprinted in accordance with the "fair use" provision of Title 17 U.S.C. § 107 for a non-profit educational purpose.

Hyperlinked text refers to articles posted on the Tulanelink website.  Numbered references are those of Sen. Warren.

The author thanks Dr. Richard Cordero for bringing Sen. Warren's plan for judicial reform to his attention.


References
  1. Dan Berman and Laura Jarrett, "Judge Alex Kozinski, accused of sexual misconduct, resigns," CNN politics, December 18, 2017, https://www.cnn.com/2017/12/18/politics/alex-kozinski-resigns/index.html, accessed 12/10/2019.

  2. Katherine Ku, "Pressuring harassers to quit can end up protecting them," The Washington Post, January 5, 2018, https://www.washingtonpost.com/outlook/pressuring-harassers-to-quit-can-end-up-protecting-them/2018/01/05/0d44aeba-ea5d-11e7-8a6a-80acf0774e64_story.html, accessed 12/10/2019.

  3. Dan Slater, "CJ Roberts Assigns East Coast Judges to Kozinski Investigation," The Wall Street Journal, June 17, 2008, https://blogs.wsj.com/law/2008/06/17/cj-roberts-assigns-east-coast-judges-to-kozinski-investigation/, accessed 12/10/2019.

  4. Niraj Chokshi, "Federal Judge Alex Kozinski Retires Abruptly After Sexual Harassment Allegations," The New York Times, December 18, 2017, https://www.nytimes.com/2017/12/18/us/alex-kozinski-retires.html, accessed 12/10/2019.

  5. Matt Zapotosky, "Federal appeals judge announces immediate retirement amid probe of sexual misconduct allegations," The Washington Post, December 18, 2017, https://www.washingtonpost.com/world/national-security/federal-appeals-judge-announces-immediate-retirement-amid-investigation-prompted-by-accusations-of-sexual-misconduct/2017/12/18/6e38ada4-e3fd-11e7-a65d-1ac0fd7f097e_story.html, accessed 12/10/2019.

  6. "28 U.S. Code § 371, Retirement on salary; retirement in senior status," Legal Information Institute, Cornell University, December 2019, https://www.law.cornell.edu/uscode/text/28/371, accessed 12/10/2019.

  7. Russ Buettner and Susanne Craig, "Retiring as a Judge, Trumpís Sister Ends Court Inquiry Into Her Role in Tax Dodges," The New York Times, April 10, 2019, https://www.nytimes.com/2019/04/10/us/maryanne-trump-barry-misconduct-inquiry.html,accessed 12/10/2019.

  8. David Barstow, Susanne Craig and Russ Buettner, Special Investigation, "Trump Engaged in Suspect Tax Schemes as He Reaped Riches From His Father," The New York Times, October 2, 2018, https://www.nytimes.com/interactive/2018/10/02/us/politics/donald-trump-tax-schemes-fred-trump.html, accessed 12/10/2019.

  9. Jeanne Cummings, "Scalia, Thomas and Citizens United," Politico, January 19, 2011, https://www.politico.com/story/2011/01/scalia-thomas-and-citizens-united-047855, accessed 12/10/2019.

  10. U.S. Government, "Ch.2: Code of Conduct for United States Judges," Guide to Judiciary Policy - Vol. 2: Ethics and Judicial Conduct; Pt. A: Codes of Conduct, March 12, 2019, https://www.uscourts.gov/sites/default/files/code_of_conduct_for_united_states_judges_effective_march_12_2019.pdf, accessed 12/10/2019.

  11. Reity O'Brien, Kytja Weir and Chris Young, "Federal Judges Plead Guilty," The Center for Public Integrity, August 5, 2014, https://publicintegrity.org/politics/federal-judges-plead-guilty, accessed 12/10/2019.

  12. ibid., Ref. 10.

  13. "In Depth: Topics A to Z - Supreme Court," Gallup, Latest poll date as of Sep 3-15, 2019, https://news.gallup.com/poll/4732/supreme-court.aspx, accessed 12/10/2019.

  14. ibid., Ref. 11.

  15. U.S. Government, "28 U.S. Code § 455, Disqualification of justice, judge, or magistrate judge," Legal Information Institute, Cornell University, December 2019, https://www.law.cornell.edu/uscode/text/28/455, accessed 12/10/2019.

  16. Administrative Office of the U.S. Courts, "Administrative Oversight and Accountability," December, 2019, https://www.uscourts.gov/about-federal-courts/judicial-administration/administrative-oversight-and-accountability, accessed 12/10/2019.

  17. "The Supreme Courtís Recusal Problem," Editorial, The New York Times, November 30, 2011, https://www.nytimes.com/2011/12/01/opinion/the-supreme-courts-recusal-problem.html, accessed 12/10/2019.

  18. American Bar Association, "Text of the Model Rules of Professional Conduct," 2019, https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_ professional_conduct/model_rules_of_professional_conduct_table_of_contents/ [delete space from URL], accessed 12/10/2019.

  19. "Code of Conduct for United States Judges," United States Courts, March 12, 2019, https://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges, accessed 12/10/2019.

  20. Steven Lubet, "Why Wonít John Roberts Accept an Ethics Code for Supreme Court Justices?" Slate, January 16, 2019, https://slate.com/news-and-politics/2019/01/supreme-court-ethics-code-judges-john-roberts.html, accessed 12/10/2019.

  21. Michael Janofsky, "Scalia's Trip With Cheney Raises Questions of Impartiality," The New York Times, February 6, 2004, https://www.nytimes.com/2004/02/06/us/scalia-s-trip-with-cheney-raises-questions-of-impartiality.html, accessed 12/10/2019.

  22. Eric Lichtblau, "Common Cause Asks Court About Thomas Speech," The New York Times, February, 14, 2011, https://www.nytimes.com/2011/02/15/us/politics/15thomas.html, accessed 12/10/2019.

  23. Anya van Wagtendonk, "A year after his confirmation hearing, Brett Kavanaugh faces a new sexual misconduct allegation: The Supreme Court justice faces a new allegation, and fresh corroboration of an old one," Vox, September 15, 2019, https://www.vox.com/policy-and-politics/2019/9/15/20866863/brett-kavanaugh-new-sexual-misconduct-allegation-deborah-ramirez-max-stier, accessed 12/10/2019.

  24. Ariane de Vogue and Faris Bseiso, "Judicial conduct panel dismisses ethics complaints against Brett Kavanaugh," CNN politics, August 2, 2019, https://www.cnn.com/2019/08/02/politics/kavanaugh-ethics-complaints-dismissed/index.html,accessed 12/10/2019.

  25. Ibid., Ref 19.

  26. Sara Boboltz, "83 Ethics Complaints Against Justice Brett Kavanaugh Dismissed Permanently; Supreme Court justices are not subject to the federal judiciaryís system of ethics reviews, a panel affirmed," HUFFPOST, August 2, 2019, https://www.huffpost.com/entry/brett-kavanaugh-ethics-complaints-dismissed_n_5d4442a1e4b0acb57fcb6356, accessed 12/10/2019.

  27. "Justice Alito Flouts Ethical Standards," Common Cause, January 30, 2014, https://www.commoncause.org/media/justice-alito-flouts-ethical-standards/, accessed 12/10/2019.

  28. Eric Lichtblau, "Thomas Cites Failure to Disclose Wifeís Job," The New York Times, January 24, 2011, https://www.nytimes.com/2011/01/25/us/politics/25thomas.html, accessed 12/10/2019.

  29. ibid., Ref.19

  30. "28 U.S. Code CHAPTER 16 — COMPLAINTS AGAINST JUDGES AND JUDICIAL DISCIPLINE," Legal Information Institute, Cornell University, December 2019, https://www.law.cornell.edu/uscode/text/28/part-I/chapter-16, accessed 12/10/2019.

  31. Karl Evers-Hillstrom, "Supreme Court justices continue to rack up trips on private interest dime," Center for Responsive Politics, June 13, 2019, https://www.opensecrets.org/news/2019/06/scotus-justices-rack-up-trips/, accessed 12/10/2019.

  32. "Rule 10: Model Rules for Lawyer Disciplinary Enforcement," American Bar Association, June 28, 2017, https://www.americanbar.org/groups/professional_responsibility/resources/lawyer_ethics_regulation/ model_rules_for_lawyer_disciplinary_enforcement/rule_10/ [delete space from URL], accessed 12/10/2019.

  33. "Governance & the Judicial Conference," United States Courts, (Current), https://www.uscourts.gov/about-federal-courts/governance-judicial-conference, accessed 12/10/2019.

  34. "28 U.S. Code § 354, Action by judicial council," Legal Information Institute, Cornell University, December 2019, https://www.law.cornell.edu/uscode/text/28/354, accessed 12/10/2019.

  35. Joan Biskupic and Aaron Kessler, "CNN Investigation: Sexual misconduct by judges kept under wraps," CNN politics, January 26, 2018, https://www.cnn.com/2018/01/25/politics/courts-judges-sexual-harassment/index.html, accessed 12/10/2019.

  36. United States of America v. Brandon Bernard, (Case 6:99-cr-00070-LY, Document 569, Filed 11/30/17), http://lawflog.com/wp-content/uploads/2017/11/2017.11.30-Bernard-motion-to-vacate-sentence.pdf, accessed 12/10/2019.

  37. Dan Berman and Laura Jarrett, "Judge Alex Kozinski, accused of sexual misconduct, resigns," CNN politics, December 18, 2017, https://www.cnn.com/2017/12/18/politics/alex-kozinski-resigns/index.html, accessed 12/10/2019.

  38. Russ Buettner and Susanne Craig, "Retiring as a Judge, Trumpís Sister Ends Court Inquiry Into Her Role in Tax Dodges," The New York Times, April 10, 2019, https://www.nytimes.com/2019/04/10/us/maryanne-trump-barry-misconduct-inquiry.html, accessed 12/10/2019.

  39. Carol D. Leonnig, Ann E. Marimow and Tom Hamburger, "D.C. Circuit sent complaints about Kavanaughís testimony to Chief Justice Roberts," The Washington Post, October 6, 2018, https://www.washingtonpost.com/politics/dc-circuit-sent-complaints-about-kavanaughs-testimony-to-chief-justice-roberts/2018/10/06/c7e7b526-c8d0-11e8-b1ed-1d2d65b86d0c_story.html, accessed 12/10/2019.

  40. Merrick B. Garland and Beryl A. Howel, "Chief Judges Announce Adoption of Workplace Conduct Policies," U.S. Courts, District of Columbia Circuit, November 28, 2018, https://assets.documentcloud.org/documents/5316827/11-28-18-DC-Circuit-Workplace-Plan.pdf, accessed 12/10/2019.

  41. "U.S. Constitution Article II," Legal Information Institute, Cornell University, December 2019, https://www.law.cornell.edu/constitution/articleii, accessed 12/10/2019.

  42. Emily C. Barbour, "CRS Report for Congress Prepared for Members and Committees of Congress Judicial Discipline Process: An Overview," Congressional Research Service, April 7, 2011, https://fas.org/sgp/crs/misc/R41758.pdf, accessed 12/10/2019.



Afterword

After posting the above, Bernofsky sent an email and a letter by certified mail asking Sen. Warren to sponser a bill that would amend the recusal statute to "prevent judges who are faculty members at academic institutions from adjudicating lawsuits in which those institutions are a party."

If there is any response from Sen. Warren's office, it will be posted here.

Note: Senator Warren ended her presidential candidacy on March 5, 2020.

Carl Bernofsky
January 12, 2020
Amended March 6, 2020




CONGRESSIONAL AUTHORITY

JUDICIARY INSPECTOR GENERAL

FIXING THE JUDICIARY

TULANELINK'S PETITIONS

CONGRESSIONAL RESPONSIBILITY

GRASSLY BILL FOR JUDICIAL OVERSIGHT

INSPECTOR GENERAL FOR JUDICIARY

ALTERNATIVE JUDICIAL FIX