Nominee’s answers on codes of conduct and cameras as evasive as his answers on potential cases
Supreme Court nominee Neil Gorsuch refused to answer questions today about whether, if confirmed, he would continue to adhere the judicial code of ethics applicable to all federal judges save the nine on the U.S. Supreme Court.
Asked by Sen. Blumenthal, “Would you commit to following those rules (i.e., the Code of Conduct for U.S. Judges),” Gorsuch responded, “Senator, what I’ve committed to do is take a look at the law, talk to my colleagues collegially and then make up my own mind, […] but I’m not going to make any promises to anyone in this process about anything.” When asked about cameras earlier in the day by Sens. Grassley and Klobuchar, Gorsuch refused to assent to anything more than “an open mind” on permitting broadcast access.
“It’s one thing for Judge Gorsuch to decline to offer his opinion on cases as we all knew would happen, but it’s another frankly unsettling situation entirely when a nominee refuses to commit to transparency,” Fix the Court executive director Gabe Roth said.
“At the same time,” Roth added, “it’s a bit odd that senators this week have been pushing video given how far most federal appeals courts, save the Supreme Court, have come on audio. The Ninth Circuit’s livestream of Trump v. Washington last month showed that live audio of cases has great civic value and will garner a huge audience, and I’d even bet that most people who ‘watched’ the Gorsuch hearings this week in fact listened to the stream online as they went about their days.”
In the same exchange with Sen. Blumenthal, Gorsuch refused to say whether a federal law that would bind the justices to the ethics code would constitute a separation of powers issue, stating, “I have to respectfully decline to comment, as I’m afraid that could be a case or controversy” that could come before him.
The closest a case on whether Congress may write ethics rules for the federal judiciary, including the justices, has come to the high court was a 1979 suit, Duplantier v. U.S., in which the Fifth Circuit held that the financial disclosure requirements of the 1974 Ethics in Government Act were constitutional. The Supreme Court denied review, keeping the lower court ruling in place.
It’s unclear if Gorsuch would consider such a case a precedent given its relative newness and lack of cognates.
One aspect of court accountability missing from the hearings has been the lack of questioning on the perils of life tenure at the high court. With justices serving now longer than ever, and with ample examples of cognitive decline within the federal judiciary, Fix the Court had hoped that the nominee would be pressed to pledge serve for a fixed term of 18 years if confirmed – 18 years being the length of tenure that liberal and conservative scholars agree is a more appropriate amount of service in line with our founding documents.