Former Federal Judge Demands Supreme Court Form Ethics Panel

A retired federal judge and federal watchdog are demanding that the Supreme Court create a three-member ethics panel, following a string of embarrassing scandals over undisclosed gifts and travel for judges from right-wing outside groups.

Former U.S. District Judge Jeremy Fogel of California — who also serves as director of the Berkeley Judicial Institute — joined arms with the watchdog group Citizens for Responsibility and Ethics in Washington this week to propose a three-member ethics panel that would be, among other things, tasked with giving Supreme Court justices confidential advice and creating a mechanism where a justice’s qualification to preside over a case can be challenged because of “personal bias, prior involvement as legal counsel or financial conflict of interest.”

The renewed push to the court comes as support for an “enforceable” ethics code has emerged publicly from Justices Kentanji Brown Jackson and Elena Kagan this summer and after President Joe Biden and Vice President Kamala Harris announced a plan to reform the Supreme Court.

The idea of toughening up the court’s current and mostly feckless code of conduct isn’t that far-fetched. The Supreme Court’s decision to adopt a code of conduct in November 2023 — and for the first time ever in its history — only happened after investigative reporting into the court from groups like ProPublica and others erupted and public backlash followed.

The structure of the proposed panel and how its powers would be outlined resemble existing checks and balances on judicial conduct in the nation’s lower courts. Fogel and Noah Bookbinder, the president of CREW, noted it was Kagan who suggested recently that lower court judges could help enforce the code of conduct for the highest court in the land.

The panel would be composed of three members appointed by the chief justice.

One would be appointed to serve a one-year term and eligible to stay on for another three years. The second would be appointed to serve a two-year term and also be eligible to serve for another three years. And the third and final would be appointed to serve a three-year term initially and would not be eligible to serve on the panel after that. No one would serve more than a single three-year term.

All panel members would be retired circuit or Article 3 judges who’re also members of the nation’s Committee on Judicial Conduct and Disability, which is a part of the Judicial Conference of the United States.

The chief ethics counsel for CREW, Virginia Canter, told HuffPost in an email Monday that by calling for the chief justice to select the panel from this pool, it “introduces an additional element of independence that will help strengthen its accountability.”

But Canter acknowledged that “we expect all participants, including the chief justice, to act in good faith to help restore public trust in this important institution.”

That trust has been shaken. According to the Pew Research Center, less than half of the U.S. has a favorable view of the court, approaching a 30-year record low in confidence.

Supreme Court Justices Clarence Thomas and Samuel Alito have been a lightning rod of controversy. This summer, Thomas belatedly reported that billionaire Harlan Crow paid for his trip to Bali in 2019. Thomas also took lavish trips to California on the influential billionaire’s dime, specifically to Monte Rio’s Bohemian Grove and its men’s-only, invitation-only Bohemian Club, a playground for the powerful. Additionally, Thomas’ wife, Ginni Thomas, pushed for the 2020 election results to be overturned and attended the rally at the Ellipse in Washington on Jan. 6. As for Alito, he took an undisclosed luxury vacation to Alaska in 2008, paid for by GOP megadonor Paul Singer. Flags associated with Jan. 6 Capitol rioters were also flown outside of his home shortly after the incident occurred. Despite this, he has refused to recuse himself from Jan. 6 cases.

The panel would serve as a confidential resource for the justices to tap should they have questions about whether they can or should remain on a case or recuse themselves. The panel could also field questions from justices about compliance with U.S. laws more broadly speaking or how their decisions may impact the court’s code of conduct overall.

But perhaps most importantly, the formation of a panel creates a new window for people to disqualify a justice if the person filing the motion thinks the justice’s impartiality might be “reasonably questioned.”

This request must include a short statement summarizing the issue and then a list of facts relevant to the review. The person must provide a brief argument that lays out reasons for possible disqualification and state concisely exactly what relief they seek.

These requests would be made under penalty of perjury and must include a signed declaration that the request isn’t meant to harass a justice or cause “unnecessary delay.”

In this new system, once the disqualification request is made, it goes to the Department of Justice’s Office of Legal Counsel for review to ensure the allegations aren’t frivolous. If approved, the Office of Legal Counsel would refer the matter to the panel, which conducts its own review and ultimately issues a “confidential advisory opinion” to the justice in question.

By the end of each year, Fogel and Bookbinder said, the panel would produce a report that would indicate how many of these motions were referred and how many advisory opinions were made.

It is unclear if this annual end-of-year report would be made entirely public or public with redactions. It is also unclear if justices would be required to respond.

Although the call for an “outside oversight mechanism” on the Supreme Court has been growing in recent years, Fogel and Bookbinder emphasized their respect for the court’s own concerns over judicial independence and the separation of powers.

Establishing ground rules for recusal while respecting this separation of powers is undoubtedly tricky work, but as the code of conduct currently stands, Fogel and Bookbinder said it’s far more problematic to allow impartiality or the appearance of it to continue.

“We believe that our proposal represents a meaningful form of impartial review that also is respectful of the Court’s unique role in our constitutional structure,” the pair wrote.