Year-End Report Available at TinyURL.com/2018-Is-Over-Fam
WASHINGTON – There’s little doubt that Fix the Court’s 2018 highlight occurred on Sept. 13, when for the first time ever, a bill with half a dozen “fixes” cleared a House panel – unanimously, at that.
The Judiciary ROOM Act, introduced by a trio of Republicans and advanced by voice vote, included same-day audio for Supreme Court oral arguments within one year of passage, live audio at the high court within two years, live video for all circuit court arguments also within two years, a new code of conduct and required recusal explanations for SCOTUS, and all federal judges would be subject to periodic medical exams to ensure cognitive function.
The bill didn’t make the House floor, primarily due to a partisan disagreement over paying for the new judgeships that were also in the bill – and the fact that the pre-shutdown attempts at funding the government took priority over fixing the third branch. But the statutory text is poised to return in the next Congress.
Similarly, another bill – Sen. Warren’s Anti-Corruption and Public Integrity Act and its House companion with a dozen cosponsors – would have also fixed the court by banning individual stock ownership by federal judges and justices; expanding rules prohibiting judges from accepting gifts or payments to attend private seminars; requiring judges’ speeches, “conflict sheets” and annual disclosure reports to be posted online; and mandating that federal appeals courts livestream audio of their proceedings. That, too, may get a reboot.
“The same cameras in the courtroom and Supreme Court ethics bills that are introduced every two years are fine proposals, but it’s heartening to see that members of Congress from both parties realize that fixing what ails the third branch may require a different approach,” FTC executive director Gabe Roth said. “I’m confident that this congressional momentum will continue in the new year and that the ‘fixes’ will make it even further in the lawmaking process.”
Another 2018 highlight: there are more senators from both parties are considering proposals to end life tenure for Supreme Court justices than at any time since the Sen. Nunn-led mandatory retirement age plan that (likely) stemmed from Justice Douglas’ 1975 stroke. This comes as poll after poll shows widespread support for SCOTUS term limits across party lines – upwards of 75% now! Plus, we may even have Justice Kagan’s support on the policy specifics.
An additional measure that three-quarters of Americans support – same-day audio at SCOTUS – happened this year for the first time since 2015, as we worked with Sens. Ted Cruz and Mazie Hirono on requesting day-of audio in the travel ban can. Turns out the court can post an audio file under three-quarters of an hour.
FTC learned in June that the three stock-owning justices (Roberts, Breyer and Alito) shed up to $360,000 from their portfolios last year. All told, they owned shares in 44 companies at the end of 2017, compared to 76 companies at the end of the 2014, the year FTC was founded.
Even with the selloff, we found that Chief Justice Roberts missed another statutory stock conflict this year. A new regulation may help end some of the continued confusion, as in November, the court announced it’s considering a rule requiring petitioners to list all cases related to theirs to help elucidate the “prior work” recusal requirement. And when Justice Kavanaugh listed his D.C. Circuit recusals – two-thirds of which he couldn’t recall the reasoning behind – we dug deep and solved several of the mysteries.
FTC successfully lobbied for a Senate Judiciary Committee hearing in June on preventing harassment in the judiciary, and we know the Senate will have more to say in 2019 on ensuring staff have the resources they need to feel safe in their courthouses and that judges are given legitimate punishments once found to be harassers. It should not be taking the judiciary so long to implement all the changes, though.
In July, FTC was the first organization to file FOIA lawsuits over the government’s withholding of Justice Kavanaugh documents from his time in the Office of Independent Counsel and in the Bush White House. (We had requested them in spring 2017.) In what’s a surprise to no one, we’re still receiving Kavanaugh documents from these suits.
FTC had lots of success in the circuits in 2018. We learned that the First and Eighth Circuit have begun working on the formation of circuit-wide judicial wellness committees aimed at maintaining judges’ cognitive health and the First, Fourth, Fifth, Seventh, Ninth and D.C. Circuits have created circuit-wide workplace conduct committees, modeled after the national one. Earlier in the year, the Seventh Circuit started video-recording some arguments, and the D.C. Circuit started live-streaming the audio of all arguments.
And we know that just days from now, an FTC-backed measure that would direct Supreme Court justices to create a professional code of conduct akin to existing rules for their lower court counterparts will be included in H.R. 1, the House Democrats’ ethics-focused first bill of the new Congress.
“The judiciary at the end of 2018 is more transparent than it was at the beginning of the year,” Roth added. “That said, we still have a ways to go.”