Chief Justice Roberts Notes Ethics Controversies

Today in the Huffington Post, AFJ President Nan Aron took a look at Chief Justice John Roberts' annual report on the federal judiciary. In his most recent report, Chief Justice Roberts devoted a fair amount of time to the ethics concerns AFJ and others have been raising in recent months. Unfortunately, as Nan documents, the chief justice's defense of his colleagues' behavior misses the mark.

Unfortunately, in spite of substantial evidence to the contrary, the message from Roberts is that he sees no ethics problem at the Court and that no reforms are needed or desirable. Besides, he inferred, no one can make rules for us anyway.

Over 140 law professors, newspaper editorial boards, and groups like Alliance for Justice, Common Cause, and others, have called for increased accountability and transparency from a Court that is steadily and alarmingly losing the trust of the public. The Chief Justice's casual dismissal of the ethics issues as the consequence of "misconceptions" will further erode the Court's credibility.

Calls for reform have been precipitated by a series of actions by some justices that call into question their judgment about ethical matters. For example, Justices Antonin Scalia and Clarence Thomas famously--or infamously--attended events at overtly political strategy conferences hosted by the Koch Brothers, and Justices Scalia, Thomas, and Samuel Alito have headlined and lent their name and prestige of their office to fundraising events for conservative organizations. These activities are expressly prohibited by the Code of Conduct that governs all federal jurists. The Code contains both general and specific ethical rules for all federal judges--except the nine members of the Supreme Court.

The Chief Justice maintains that in spite of their exemption, "All members of the Court do in fact consult the Code of Conduct in assessing their ethical obligations." But the record shows that while some of them may consult it, they apparently don't feel compelled to actually follow it. That's' why reformers are calling on the Court to agree to be formally bound by its provisions.

Read the rest of Nan's analysis on the Huffington Post.

Press Release: AFJ Calls on Chief Justice Roberts to Address Ethics Issues in His Annual State of the Judiciary Report

AFJ Calls on Chief Justice Roberts to Address Ethics Issues
in His Annual State of the Judiciary Report

Washington, D.C., December 22, 2011—Alliance for Justice President Nan Aron today issued the following open letter to Chief Justice John Roberts in advance of the release of his annual Year-End Report on the Federal Judiciary:

Dear Mr. Chief Justice:

With the time fast approaching for your annual Year-End Report on the Federal Judiciary, I am writing on behalf of Alliance for Justice to respectfully urge you to take advantage of this important opportunity to address questions that have arisen about the ethical standards governing the Supreme Court. We, among many others, are growing increasingly concerned that the recent decline in public approval of the Court is due in part not only to the well-publicized and ethically questionable actions of some justices, but also to the lack of clear and unequivocal precepts governing justices’ behavior.

As you know, all other federal jurists are subject to the Code of Conduct for United States Judges, yet the Supreme Court, our nation’s most important legal institution, is currently exempt. We understand that several justices and Court spokespeople have made public statements that the Code is used as guidance and that justices voluntarily follow its rules, but the recent record demonstrates that either that is not true for all justices or there is a lack of understanding of what the Code requires.  For example, Justices Antonin Scalia and Clarence Thomas recently attended a fundraising dinner at which they were the honored guests and main speakers, and allowed their names and images to be used to publicize the event. All of these activities are prohibited by Canon 4C of the Code, which states that “a judge should not personally participate in fund-raising activities,” and which goes on to specify in commentary that a judge “may not be a speaker, a guest of honor, or featured on the program” of a fundraiser.

Incidents like this one demonstrate the need for clarity and certainty about the ethical standards which bind the Court. The nation can ill-afford to allow ethical uncertainties to cloud public perceptions of the Court, its justices, and, the decisions they make. The simplest, most direct approach is for the Court itself to make an explicit public declaration that the Code of Conduct governs justices’ behavior and to formally adopt it as the Court’s own rule.

We urge you to take the occasion of your 2011 Year-End Report to restate the Court’s obligation to maintain the highest ethical standards and to make a commitment to beginning the process of finally and officially adopting the Code of Conduct.

Sincerely,

Nan Aron
President, Alliance for Justice

*   *   *

Alliance for Justice has prepared a background report on the Federalist Society fundraising dinner of November 10, 2011, at which Justices Antonin Scalia and Clarence Thomas were the guests of honor, and which has the hallmarks of an activity that is prohibited by the Code of Conduct for United States Judges. It is available online at: www.afj.org/FederalistFundraiser.

In addition, extensive background materials on Supreme Court ethics rules and current controversies are available for download at www.aquestionofintegrity.org. The issue is also discussed in AFJ’s new short documentary film, A Question of Integrity: Politics, Ethics, and the Supreme Court, which can be viewed online.

What's standing in the way of reform?

The Code of Conduct for U.S. Judges lays out ethical guidelines to protect the integrity of our judicial system, and its rules bind every federal judge... except nine. Can you guess which?

That's right... the Code of Conduct for U.S. Judges applies to every federal judge except the nine justices of the Supreme Court.

As Slate.com Senior Editor Dahlia Lithwick put it in AFJ's latest film, "When you tell people that the Code of Conduct applies to everyone but Supreme Court justices, they think it's a joke. That's how preposterous it is."

But we can change that, right now. Sign our petition and send a message to Chief Justice John Roberts and let him know that it's time for every Supreme Court justice to follow the same rules that govern every other federal judge in America.

Several Supreme Court justices have recently made headlines by engaging in behavior that likely would not be permitted if they sat on lower courts.

• Justice Alito has headlined fundraisers for right-wing groups such as the American Spectator magazine.
• Justices Scalia and Thomas attended political strategy and fundraising conferences hosted by the ultra-conservative billionaire Koch brothers. The justices have also allowed their names to be used to draw attendees.
• Justice Thomas maintains a relationship with conservative funder Harlan Crow that stretches the appearance of unethical behavior beyond the breaking point.

There's nothing stopping the Court from voluntarily adopting the Code of Conduct and putting an end to the kind of behavior that has left many Americans wondering if Supreme Court justices are becoming "politicians in robes."

Click here to send a message to John Roberts. Tell him that the Court could voluntarily adopt the Code of Conduct RIGHT NOW and put these fears to rest by preserving the integrity of our nation's highest legal institution.

Reform can happen. The same Code of Conduct that's good enough for every other federal judge is good enough for the nine justices of the Supreme Court. Take action today and make sure that Chief Justice Roberts understands that his Court faces a question of integrity... and that his answer can protect the Court from harmful poltical influence.

Chief Justice Roberts Calls for Ending the Blocking of Judicial Confirmations

In his annual year-end report on the federal judiciary, Chief Justice Roberts called for increased judicial confirmations, writing that a "persistent problem" in confirming judges has caused some courts to become "burdened with extraordinary caseloads." Though he did not cite any statistics in his report, Chief Justice Roberts was referring to the fact that there are currently 110 vacancies for lifetime federal judgeships, 44 of which are considered "judicial emergencies" by the Administrative Office of the U.S. Courts.

These numbers are all the more striking because they have more than doubled since the beginning of President Obama's term in office, when there were only 55 vacancies and 20 judicial emergencies. Obama's experience stands in stark contrast to Presidents Bush and Clinton, both of whom were able to significantly reduce the number of judicial vacancies that they inherited by the end of their first two years in office.

For the most up-to-date and comprehensive information on judicial nominations, visit Alliance for Justice's Judicial Selection Project website.

Now you tell us, Senator Specter!

Outgoing Senator Arlen Specter from Pennsylvania is now complaining that Supreme Court Justices John Roberts and Samuel Alito, both of whom he eagerly voted to confirm, weren’t being completely honest about their intentions during their confirmation hearings.

Specter said on the Senate floor Tuesday:

Ignoring a massive congressional record and reversing recent decisions, Chief Justice Roberts and Justice Alito repudiated their confirmation testimony given under oath and provided the key votes to permit corporations and unions to secretly pay for political advertising - thus effectively undermining the basic Democratic principle of the power of one person, one vote. Chief Justice Roberts promised to just call balls and strikes and then he moved the bases.

None of this surprises us, of course. We made the case against both of them, but he wouldn’t listen. Sorry, Arlen, but this comes just a little too late.

The Roberts Court is Out of Touch With the American People

Earlier this week, Chief Justice John G. Roberts Jr. told law students in Alabama that Obama's criticism of the court during the State of the Union address was "very troubling." Roberts’ criticism of President Obama’s State of the Union speech shows just how out of touch the conservative majority on the Court has become. In his annual speech before Congress, the President attacked the Supreme Court’s Citizens United decision in which a narrow 5-4 majority radically transformed campaign finance laws. The ruling grants corporations the ability to spend unlimited amounts to influence the outcome of elections. Troubling, indeed.

Roberts was upset that the Justices had to “sit there expressionless” while the “members of [the elected legislature were] standing up, literally surrounding the Supreme Court, cheering and hollering.” Justice Alito’s furtive “not true” comment aside, perhaps the Chief Justice felt so disturbed because the court rarely has to confront the ire of those its decisions affect.

But Citizens United has served as a rallying cry. As Senator Amy Klobuchar (D-MN) noted in a recent Senate Judiciary Committee hearing, people are “freaking out” because the Court’s conservative 5-4 majority is transforming the legal framework in America to further a pro-business agenda. A recent Washington Post-ABC News poll shows that 80% of Americans oppose the Supreme Court’s decision in Citizens United. At a time when average Americans are struggling to survive economically, opening the floodgates to corporate campaign expenditures smacks of insensitivity and ignorance to the plight of ordinary people.

We applaud the President for reprimanding the court and giving voice to the frustration felt by so many Americans in the wake of Citizens United. Harry Reid also joined the fray on Wednesday criticizing the Court for being out of touch and engaging in “activism”, asking us to rethink who we put on the bench.

As we’ve said before, this decision should serve as a wake-up call to progressives who have allowed judicial nominations to sit on the back burner while conservatives pack the court, and to the administration, which has not treated judicial nominations as a top priority. President Obama should step up his commitment to nominating wise young judges who can change the jurisprudential conversation -- and progressives need look no further than Citizens United to see what happens if we don't pay attention to judicial selection and work to help confirm those nominees who will uphold our core constitutional values.

From Huffington Post: Let the Hearing Begin

The Senate Judiciary Committee will convene Monday morning at 10:00 a.m. to begin the hearing on Sonia Sotomayor’s nomination to become an associate justice of the Supreme Court. The hearing will be a consequential moment in our history, but not so much because the confirmation of Judge Sotomayor is on the line. Barring some unforeseen and very unlikely event, Republicans will quickly back off attacks on Judge Sotomayor herself. They recognize that it is politically dangerous to criticize her given her appealing personal story of rising from a housing project in the Bronx to the pinnacle of our judiciary through enormous talent and hard work, her record as a moderate who feels bound to follow the law strictly on the bench, and her ethnicity and gender.

Instead, they will use the occasion to promote their distorted view of the law – not what it is but what they would like it to be in a republic ruled by hard-right judicial activists such as Chief John Roberts and Justice Samuel Alito. For that reason, the week will offer an enormously important contrast between the nominee and her supporters and this ominous Republican vision.

So, what are the themes that Republicans will raise in response to Judge Sotomayor’s nomination?

First, they will highlight the Ricci case, the challenge by white firefighters to New Haven’s voluntary effort to avoid discrimination against minority firefighters. Judge Sotomayor, of course, sat on a panel of the Second Circuit that summarily affirmed the lower court’s decision that New Haven’s decision to scrap a test for promotion of firefighters to avoid disproportionately excluding black and Hispanic applicants was consistent with Title VII of the Civil Rights Act of 1964. Repudiating decades of settled civil rights law, the Supreme Court reversed that decision in a 5-4 opinion. The five conservatives on the Court, who have traditionally been hostile to claims of discrimination by minorities, created a new rule and broke with standard practice by directing judgment for the white firefighters, rather than sending the case back to the lower court so that New Haven could prove that it met the new standard. While Republicans will criticize Sotomayor’s participation in the panel decision and will bring in the lead plaintiff, Frank Ricci, to testify (surely they would not suggest that empathy for Ricci should influence the result), the fact remains that 11 of 21 judges who reviewed Mr. Ricci’s claim ruled against him. Judge Sotomayor can hardly be considered out of the mainstream or at fault for failing to apply the law that the conservatives made up when the case reached the Supreme Court.

Republicans will also use the hearing to promote guns. In their continuing quest to ensure that every American is armed, they will criticize a decision in which Judge Sotomayor, sitting on a unanimous panel of the Second Circuit, held that the Second Amendment to the Constitution, which ensures against federal limitations on an individual right to bear arms, does not prohibit state limitations on guns. Unfortunately for Republicans, the Supreme Court has held the very same thing three times. To find fault with Judge Sotomayor’s decision, her critics have to argue that she should have thrown the rule of law to the winds and ignored Supreme Court precedent. Even conservative icons of the bench, Judges Frank Easterbrook and Richard Posner, have agreed with Judge Sotomayor on this issue. That, however, is unlikely to stop conservatives from using the occasion to lecture about the sanctity of the Second Amendment as a guarantee of fundamental rights.

Republicans will also raise questions about abortion – even though Judge Sotomayor has never ruled on abortion and does not have any known public statements on the issue. In any event, support for Roe v. Wade, which is the law of the land, can hardly be a ground for disqualification from the Supreme Court. There will be no traction in criticizing Judge Sotomayor on this issue, but Republicans are likely to use the opportunity to burnish their anti-choice credentials, as if anyone had any doubt.

Republicans will criticize Judge Sotomayor for two decisions involving takings of private property by local governments. Again, both decisions are based directly on Supreme Court precedent – namely the Court’s controversial but binding decision in Kelo v. City of New London. Because Kelo has proven unpopular, however, Republicans will try to tie Judge Sotomayor to it in a critical manner, even though it remains the law of the land, which she, as a judge, is required to apply.

Republicans will also use Judge Sotomayor as a foil to fulminate against importing international law as the basis for deciding domestic legal issues. Judge Sotomayor has been very clear that she does not believe that the law of other nations or international law offer a basis for decision in the courts of the United States. Indeed, there is nothing in any of her opinions that suggests otherwise. Republicans, therefore, will attempt to misconstrue a speech she gave in which she allowed that good ideas may arise outside the United States and we should be receptive to them. That is a far cry from endorsing international sources of law as binding in the United States.

Finally, Republicans will attack the activities of the Puerto Rican Legal Defense Fund (PRLDEF), which Judge Sotomayor served as a member of its Board of Directors prior to going on the bench. PRLDEF is an outstanding organization that has done exceptional work in promoting civil and constitutional rights. It operates in the great tradition of the NAACP Legal Defense Fund and other public interest legal organizations that have helped America to fulfill its promise as the cradle of liberty and opportunity. Republicans should be ashamed of trying to score political points off of Judge Sotomayor’s commitment to the proud tradition of public interest law.

In sum, next week will do more than allow Americans to learn more about Judge Sonia Sotomayor, it will also present an opportunity to examine the legal agenda of the hard-right. In contrast to the sterling nominee who will sit in front of the Senate Judiciary Committee as the embodiment of the opportunities that America, because of its values and laws, provides to those who work hard, the ultraconservative legal agenda will appear small, ungenerous, mean-spirited, and exclusive.

Let the hearing begin.

All eyes on the Supreme Court

AFJ's Advocacy Digest blog, which covers issues of importance to foundations and nonprofits who engage in advocacy work, published this story today.

Today, the Supreme Court will hear oral arguments in Citizens United vs. Federal Election Commission. While there will be no red carpet, “Hillary: The Movie” makes its debut in front of the nine justices as Citizens United argues that the 90-minute anti-Hillary movie, which aired when Secretary of State Hillary Clinton was then a Democratic presidential candidate, did not violate the Bipartisan Campaign Reform Act.

Citizens United argues that the movie is not a political ad but instead a documentary that viewers must seek out to watch, and therefore not subject to federal election law. At the lower court, a three judge panel concurred that the movie is indeed a political ad that spoke to candidate Clinton’s qualifications for office. Citizens United appealed to the Supreme Court. Today’s oral arguments will, among other things, pit the journalistic exceptions in federal election law against the Federal Election Commission’s role of governing political advertisements and its progeny of related issues. This will prove to be a very interesting First Amendment challenge for the Roberts court, which Alliance for Justice and the regulated community will follow closely.