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As Nominee, Sotomayor Implied Congress Could Regulate Court Ethics

During Justice Sonia Sotomayor’s confirmation hearings in 2009, she was asked by Sen. Russ Feingold of Wisconsin whether she would recuse herself in a case that she had heard previously as a circuit court judge.

“Yes, sir,” Sotomayor responded. “My own judgment is that it would seem odd, indeed, if any justice would sit in review of a decision that they authored. I would think that the judicial code of ethics that govern recusals would suggest and command that that would be inappropriate” (italics mine).

But there is no “judicial code of ethics” that governs recusals, at least for Supreme Court justices, given their exemption from the code. That both Sotomayor and Justice Kagan did not seem to realize this during their confirmation hearings speaks to how strange it is that the Code of Conduct for U.S. Judges applies to all other federal judges but not the justices.

Even more interesting, when asked about the Caperton case (in which the high court said a state supreme court judge should have recused himself when his political benefactor was subject to a $50 million ruling), Sotomayor seemed to imply that Congress has “the policy choice […] about what standards it should hold judges to.” Of course, not all of her high court colleagues would agree to that.

Fix the Court is calling on Chief Justice Roberts and his colleagues to formally adopt the code of ethics – called the Code of Conduct for United States Judges – that all other federal judges are required to follow. Should they demur, we believe Congress has the authority to compel the justices to adopt the code.

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