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As Solicitor General, Kagan Didn’t Know Justices Were Exempt from Ethics Code

During her 2010 confirmation hearings, Justice Elena Kagan had the following exchange with Sen. Russ Feingold of Wisconsin:

FEINGOLD: When we spoke in my office, you indicated that you had just recently learned that the Supreme Court is basically exempt from the code of judicial conduct and the rules that the Judicial Conference puts in place to apply it. And so you didn’t really have an opinion about it yet. But now that you’ve had a chance to think about it, do you think, for example, that Supreme Court justices ought to be able to have contacts with parties of the case that other judges can’t?

KAGAN: Senator Feingold, I really haven’t thought about that issue since we talked about it. And I would want to speak with the people whom I hope will be my colleagues about it before I answer that question. I think it’s an important question and one worthy of real consideration.

Two primary observations: First, it’s incredible to think that a person who was the solicitor general of the U.S., dean of Harvard Law School, counsel in the Clinton administration and nearly a federal appeals court judge did not know that Supreme Court justices were not bound to the Code of Conduct for U.S. Judges like the rest of the federal judiciary.

Second, her comment that justices’ contacts with Supreme Court litigants is “an important [issue] and one worthy of real consideration” demonstrates that she understands the need for some sort of ethical bounds within which the justices should operate.

Good thing Sen. Feingold let her know about the ethics code. But knowing, we’re told, is only half the battle.

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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