Chairman Nadler Statement for Markup of the “Supreme Court Ethics, Recusal, and Transparency Act”
Washington, May 11, 2022
Washington, D.C. - Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY) delivered the following opening statement, as prepared, during a full committee markup of H.R. 7647, the “Supreme Court Ethics, Recusal, and Transparency Act of 2022”:
“The Supreme Court is one of the nation’s most vital institutions. Its fidelity to equal and impartial justice, as well as the public's faith in the integrity of the judiciary, are foundational to maintaining the rule of law.
“But the institution of the Court has been undermined in recent years by the actions of the justices themselves—justices appointed by Presidents at both ends of the ideological spectrum.
“We expect the justices of our nation’s highest court to hold themselves to the highest standards of ethical conduct, but, in fact, their conduct too often falls below the standards that most other government officials are required to follow.
“People are justifiably shocked when they learn that not only is there no code of conduct for the Supreme Court, but that the justices have steadfastly opposed the creation of one. Every member of Congress is subject to a code of conduct, as is every other federal judge. Even entry-level employees in the executive branch are subject to more stringent ethics requirements than the Justices of the Supreme Court.
“Recent events—whether it be the unprecedented leak of a draft opinion, speeches given at closed-door events with parties to ongoing cases in front of the Court, or public appearances with political figures—all call out for scrutiny under a defined code of ethics.
“H.R. 7647 would require the Supreme Court to promulgate an express code of conduct that would apply to both the justices and their employees. No longer would each justice get to pick and choose their ethical obligations without being bound by a single, uniform code.
“Recent years have also seen the justices’ repeated and worsening failures to abide by the existing federal recusal statute. Last year, for example, one justice refused to recuse from a case involving a group whose affiliate had spent more than a million dollars supporting her appointment to the bench. Two justices refused to recuse from a case involving their publisher who had given them six and seven-digit book deals.
“We also now know that one justice failed to recuse from at least one case involving the attempted overthrow of our democratically elected government, despite his wife’s apparent direct and active involvement in that effort.
“To be clear, I do not expect Justice Thomas to recuse himself from cases because his spouse holds a particular political point of view. I expect him to recuse when he knows, or even reasonably suspects, that his wife’s communications would appear in the records that President Trump sought to withhold from Congress.
“To make matters worse, because the Court’s practice is that each justice’s recusal decisions are not subject to any form of review, each justice currently simply decides for themselves whether recusal is warranted.
“This legislation would ensure that the justices recuse themselves from cases where their impartiality could reasonably be questioned, by delineating additional instances where recusal is clearly required. This bill would also inject impartiality into the recusal process by allowing the full Supreme Court, rather than each individual justice, to consider certain recusal motions.
“The bill would also provide much-needed transparency into the filing of amicus briefs, which has increasingly become the equivalent of judicial lobbying and is often used in a coordinated fashion by dark-money groups.
“To address this issue, H.R. 7647 would require the parties and amicus filers in a case to disclose the gifts and payments they have given to the justices, as well as whether they lobbied to get any of the justices their jobs. This bill also requires amicus filers to disclose the sources of dark money funding their efforts to influence the Court.
“Finally, these disclosure problems extend to the justices themselves. They do not need to disclose the value of the reimbursements they receive for the junkets they take at the sponsor’s expense. And in some cases, they use a loophole to completely conceal lavish gifts like flights on private jets and trips given to them by people with interests before the Court.
“To address these problems, this legislation requires the justices to disclose the gifts, travel, and money they have received from outside entities.
“The appearance of impropriety and disregard for the law can have devastating impacts on the public’s trust in the judiciary. Our constitutional system suffers when it looks like the Justices of the Supreme Court—the very people we entrust to maintain the rule of law—think that they, themselves, are above the law.
“The Supreme Court Ethics, Recusal, and Transparency Act is tailored to protect the judicial process from hidden conflicts of interest, safeguard litigants’ right to equal justice under law, and ensure that the justices of the Supreme Court are not above the laws they are entrusted to enforce.
“I want to thank the distinguished Chair of the Courts Subcommittee, the Gentleman from Georgia, Mr. Johnson, for introducing this legislation, and I urge all Members to support it.”