“I don’t know how [the courts] bring in interns in this environment,” Rep. Norma Torres laments
During a hearing on the third branch’s annual budget today, members of Congress pressed judiciary leaders on why they’re not doing more to protect their employees and provide clear avenues for reporting misconduct, and they asked probing questions about the lack of broadcast access in the lower courts and the lacking ethics rules in the highest court.
Administrative Office Director Jim Duff, who failed to appear before a House Judiciary panel on misconduct two weeks ago, offered many of the same talking points found in AO press releases but did not offer solutions to problems raised today and in previous hearings that would give judiciary employees – and members of Congress – greater confidence in the branch’s commitment to supporting victims, maintaining confidentiality and building a robust Office of Judicial Integrity.
“It is unacceptable that the judiciary still has no reliable mechanism for reporting misconduct and investigating judges’ misconduct once they’ve retired. I applaud members of Congress for again putting judiciary officials’ feet to the fire, as it’s clear that additional congressional oversight is needed,” FTC executive director Gabe Roth said. “Today offers yet another example of the judiciary dragging its feet on ensuring that law clerks feel safe in chambers and that all judiciary employees feel safe in courthouses across the country.”
Appearing next to Duff was District of Kansas Judge John Lungstrum, who chairs the Judicial Conference’s Budget Committee. Lungstrum’s Kansas City office is a few doors down from that of disgraced Judge Carlos Murguia. (“It was an actual shock to the judges that this was occurring,” Lungstrum said of Murguia’s behavior today.)
The hearing came as former Ninth Circuit Executive Cathy Catterson had a letter published in the L.A. Times that doubted the veracity of Olivia Warren’s Feb. 13 testimony, underscoring just how far the third branch still has to go to ensure victims are treated with dignity.
Several members of the House panel were the opposite of dismissive. Rep. Norma Torres was critical of the judiciary’s reform efforts to date, noting how the courts have yet to recommend that misconduct investigations continue after a judge’s retirement. “We can’t allow abusers to simply retire and collect on a [well-compensated] retirement,” Torres said, “while the victim is a victim forever and never got justice.”
Torres asked Duff about the status of a Feb. 6 letter four members of House Judiciary wrote him that requested more information by Feb. 20 about the allegations against Murguia and the extent to which the victims were supported. As of now, Duff still has not responded but did say this afternoon, “We will be responding to it. We suggested a little more time.”
Torres also noted that a year ago, Justice Kagan told the panel that Chief Justice Roberts was working on a code of code for the Supreme Court, yet to this day there has been no update.
Earlier in the hearing, Rep. Matt Cartwright asked, “How can the judiciary adequately police itself if investigations [against judges who retire] are curtailed in that fashion?” (The answer: they can’t.) As Duff pointed out, a judge could still technically be impeached after retirement and could be criminally prosecuted. But that misses the mark, and that’s why FTC and other advocates have sought a statutory solution where a retirement does not foreclose a misconduct investigation, as well as periodic third-party climate surveys and exit interviews with clerks.
Also today the public learned that the Office of Judicial Integrity, which Duff created 14 months ago, only comprises a single employee. Duff’s Working Group was told by former law clerks in 2018 that the lack of a national reporting mechanism was a fatal flaw in its post-Kozinski reform plans, and it was assumed that the creation of the OJI would fix that. (It did not.) The AO’s FY21 budget does ask for Congress to fund two new OJI positions.
Rep. Mike Quigley, who chairs the subcommittee, asked the panel about the lack of broadcast access to federal court proceedings. Quigley wanted to know why the Judicial Conference does not mandate livestreaming for district and appeals courts as a matter of course, especially when “you see [livestreaming] taking place at the state level across the country.” Duff and Lungstrum answered by citing the failures of the 2011-15 cameras-in-courts pilot program, yet did not point out that the program was set up to fail, since it included no appeals courts, permitted near-universal opt outs of video recording and shot grainy footage in the few instances video was permitted.
Meanwhile, Rep. Stewart offered his views on the recently leaked advisory opinion from the Judicial Conference’s Codes of Conduct Committee that stated that judges should no longer maintain paid memberships with the Federalist Society and American Constitution Society. “You got a lot of people who would have to come to us and justify that,” Stewart told Duff.
Duff appeared to reassure Stewart and undermine the Codes of Conduct Committee by saying, “It may be some relief to know that that opinion is not a final opinion.”
The opinion sought to strengthen judicial independence from partisan politics, but, if this interaction is any indication, it may be brought down before it ever goes into effect because of an onslaught of partisan attacks on the judiciary.
How last year’s hearing went down:
At the March 7, 2019, hearing on the judiciary’s budget, Justice Sam Alito and Elena Kagan testified and were asked repeatedly about pro-transparency reforms at the court.
Rep. Norma Torres asked why there is no inspector general in the judiciary (1:01:06) who could oversee a more robust branch-wide response to the ongoing problem of sexual misconduct. Alito answered by parroting non-germane talking points on the Judiciary Workplace Conduct Working Group. Torres then asked about why there’s no ethics code for the justices, with Kagan responding (1:04:50), “The Chief Justice is studying the question of whether to have a code of judicial conduct that’s applicable only to the United States Supreme Court.” Yet a year later, there has been no update on the code’s status.
Rep. Ann Kirkpatrick asked why the judges and justices do not post their financial disclosures online (1:12:49), like the other two branches do, and why the third branch does not comply with the STOCK Act (1:14:27), which requires members of Congress and top executive branch officials to report securities transactions within 45 days, and why the. The justices indicated that they would “look into” these items, yet a year later, the justices only report their financial transactions once annually, and as of today, more than nine months after the disclosures were due by law, the AO has released only about half of Article III judges’ 2018 reports.