Judges pushing back against congressionally-mandated ethics rules
One of the oldest controversies in official Washington is just how far – if at all – Congress can go in enacting ethics legislation for federal judges.
It’s a question that took on increased urgency when a Wal Street Journal investigation showed that more than 130 federal judges broke the law when they heard cases and issues ruling when they had clear conflicts of interest – including, but not limited to, a personal financial stake in one party to a lawsuit.
In the wake of that reporting, Congress is revisiting ethics and disclosure legislation that was introduced, but failed to pass – in part due to in-person lobbying from federal judges (including Chief Justice John Roberts). As the Journal reports:
…the House passed legislation requiring judges’ financial-disclosure forms to be posted on a searchable online database within 90 days of being filed. Currently, it takes more than a year before most are released.
In the Senate, Texas Republican John Cornyn and Delaware Democrat Chris Coons are reintroducing a bill to facilitate access to disclosure forms. One change, which lengthens the time allowed to get the database online, followed complaints from the Administrative Office of the U.S. Courts.
An official with the Administrative Office said it has told legislators “we are making progress on a new financial disclosure reporting system and are in the midst of an aggressive ethics training initiative.”
On Dec. 9, the Senate Judiciary Committee unanimously approved a bill called the Open Courts Act to rehabilitate the online court-records system known as Pacer and make it free to the public.
Strong opposition from judges helped kill similar House legislation last year, which had been introduced by two Georgia congressmen who are usually on opposite ends of the political spectrum, Mr. Johnson, a Democrat, and Doug Collins, a Republican.
To resist their effort, the Judicial Conference’s top lobbyist sent talking points to the judges who head the conference’s committees. One read: “This bill would force the Judiciary to create a completely unnecessary new electronic filing and public access document system, estimated to cost at least $2 billion.”
It would cost just a fraction of that, according to the nonpartisan Congressional Budget Office in a December 2020 estimate: $46 million over 10 years—minus $37 million in revenue from fees for large users and agencies.
It’s not uncommon for lobbyists to shade the truth to suit their ends. But this looks and sounds like a lot more than shading (though none dare call it anything more, for fear of angering a federal judge).
Here’s the thing…congressional oversight applies to everyone in federal service. Asserting otherwise, as the judiciary is prone to do, makes them unaccountable – dangerously so.
All the more reason for Congress to apply an ethics law that brings the courts back down to earth. And even more reason to apply term limits to members of the various federal courts.