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Fix the Court Probes Barrett’s Record on the “Fixes”

Though Fix the Court does not take a position on SCOTUS nominees, we do like to bring attention to a nominee’s brushes with the “fixes,” which are described below.

In 2018, Barrett sat on the first-ever Seventh Circuit panel that allowed a camera in the courtroom, along with then-Chief Judge Wood and Judge St. Eve. This year, she’s sat on numerous cases since May whose argument audio was livestreamed due to the pandemic. She has not expressed a view on live SCOTUS, but we’ve asked senators to ask her.

Term limits:
We do not know her views on ending life tenure for future justices. But given last week’ introduction of the first-of-its-kind SCOTUS term limits bill, we’ve encouraged senators to ask.

According to her SJQ (p. 64): “If confirmed, I would resolve any conflict of interest by looking to the Code of Conduct for United States Judges (although it is not formally binding on members of the Supreme Court of the United States); the Ethics Reform Act of 1989, 28 U.S.C. 455; and any other relevant prescriptions. I would also seek guidance from judicial ethics officials to structure my limited financial investments to minimize the potential for conflicts.” If only the three stock-owning justices (Roberts, Breyer and Alito) would do that. Don’t get too excited, though: Merrick Garland had nearly the same answer (p. 139).

FTC eagerly awaits the SCOTUS Code of Conduct that Kagan said 18 months ago (1:04:49) Roberts was working on.

Financial disclosures:
2020 nominee statement of net worth (filed 9/28/20): Pp. 66-68 of this LINK
2019 financial disclosure (covers 1/1/19-12/31/19; filed 7/30/20): LINK
2018 financial disclosure (covers 1/1/18-12/31/18; filed 6/5/19): LINK
2017 nominee disclosure (covers 1/1/16-4/25/17; filed 5/8/17): LINK
2017 nominee statement of net worth (filed 5/8/17): last two pages of the above link

Public appearances:
A dozen times as a federal judge has Barrett taken a paid-for FedSoc trip; she has appeared at no events hosted by ACS or other liberal groups since her 2017 appointment.

This is kind of silly since SCOTUS makes its own rules, but three quick points:

– Senate Democrats will look to press Barrett to recuse from any election-related litigation. This will go nowhere.

– We know her views on abortion and the ACA; she will sit on cases about abortion and the ACA.

What’s useful inside baseball to us is how she handles potential conflicts, p. 51: “The Seventh Circuit employs an automatic recusal system to help identify potential conflicts for the judges. Each judge maintains a recusal list, and a computer program flags potential conflicts against that list. […] To the best of my knowledge, there has only been one occasion on which my assistant identified a potential conflict on a case to which I had been assigned [i.e., that the software had missed],” a case argued by NDU students.

Barrett does not commit to using the software as a justice, writing on p. 52, “I will continue my present practice of using a recusal list,” but we believe that SCOTUS, like lower court judges, should be required to employ this belt-and-suspenders approach.

According to her disclosures, Barrett owned shares in just one publicly traded company at the time of her 2017 nomination – about 30 shares of Wal-Mart – which she sold later that year, and she’s remained stock-free since.

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