Barrett Signals Openness to Live Audio and SCOTUS Ethics Rules, Demurs on Recusals

According to a Judiciary Committee source, Democrats’ questions for the record were due to the Republican majority by midnight Friday (a “laughably rushed process,” the source said).

Amid these questions (full QFR here) – which, like the hearings, focused mostly on the ACA, abortion rights and the election – Judge Barrett was asked about some of the “fixes,” namely live broadcast of SCOTUS arguments, the lack of a formal code of conduct for the justices and recusals. (For a discussion on why the arguments for her recusal in election cases is pointless, see here.) Here are our five fixes-related QFR takeaways:

1. Barrett says she’d keep an open mind about live audio.

Asked by Sen. Coons (p. 106) if she’d “support continuing to provide real-time (audio) access to oral arguments” after the pandemic, she responded by saying she’d “keep an open mind regarding live broadcasts of Supreme Court oral arguments.” This mirrors her answer to Sen. Grassley last week on cameras in the courtroom.

2. Barrett says she’d continue to follow judicial ethics code, file financial and travel disclosures.

As readers (and Judge Barrett knows), the Code of Conduct for U.S Judges is not binding on Supreme Court justices. In response to a question from Sen. Coons (p. 109) on whether she’d “support the establishment of a code of conduct for Supreme Court justices,” Barrett responded that she’d “follow the same practice as my colleagues” on ethics if confirmed. (Justice Kagan indicated during a House Appropriations hearing last year that Chief Justice Roberts was drafting a SCOTUS ethics code, though there has not been an update since.) Also in response to a Sen. Coons question, Barrett added that she’d also follow her future colleagues in terms of how they file annual financial and travel disclosures.

3. Barrett refuses to comment on propriety of Justice Scalia’s ultimate hunting trip.

Sen. Whitehouse (p. 60) asked Barrett whether Scalia’s decision to accept “hospitality from someone who has interests before the Court” – i.e., John Poindexter, who had a case before SCOTUS a few months before Scalia’s Feb. 2016 trip to his ranch – “could undermine public faith in the impartiality of that justice.” Barrett disappointingly fails to answer, saying that the question “calls for my views on a matter of public policy [and] it would be inappropriate for me to offer an opinion.” 

4. Barrett commits not to meet with amici in open cases.

Interestingly, the next question Sen. Whitehouse (p. 61) asks is about whether it’s appropriate “for a judge to meet privately with amici while the case in which they’ve written a brief is pending before that judge.” Barrett responds that “it would be inappropriate to allow the amici to have access to the judges privately to try to make their case.” As you may recall, Justices Alito and Kavanaugh met with amici in Bostock / Zarda / Stephens last fall, and the two, along with Justice Thomas, sided with those amici.

5. We’re unlikely to see a Laird v. Tatum or Cheney v. USDC repeat.

In addition to questions on broadcast and ethics, FTC urged senators to press Barrett on recusal – not, as many senators did during the hearings, for her to commit to step aside from any election case, since she’d never do that – but on how she should commit, as Justices Scalia and Rehnquist famously did, to explaining her reasons for recusal or non-recusal in highly contentious cases.

Sen. Feinstein (p. 14) asked this question, and Barrett’s response was that she’d “commit to following the recusal process and faithfully applying the law of recusal if confirmed” but no more. 

When asked later in the QFR by Sen. Blumenthal (p. 130) “whether the standard for recusal is objective or subjective,” Barrett cites Rehnquist’s statement of non-recusal in 2000 Microsoft case, where he sat even though his son was a partner in the law firm representing the tech giant: “[a judge’s] recusal inquiry is an objective one, made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances.” This, ironically, is the very definition of subjective (i.e., “the perspective of a reasonable observer”), not objective. So much for that.

The full text of the above exchanges is below:

From Sen. Coons:

Q37 (p. 106): For the first time in its history, the Supreme Court this year has allowed for the simultaneous live audio broadcasting of its oral arguments, which have been conducted telephonically due to the COVID-19 pandemic. During this period, as many as 500,000 people are estimated to have listened to oral arguments in real-time (live or shortly afterwards), in contrast to the 50 seats available for the public in the Supreme Court. Advocates for greater transparency at the Supreme Court have long called on the justices to provide such real-time access as a routine matter. If confirmed, will you support continuing to provide real-time access to oral arguments after there is no longer a need to conduct them remotely? 

A: If confirmed, I will keep an open mind regarding live broadcasts of Supreme Court oral arguments.

Q39a (p. 109): All federal judges – except Supreme Court justices – are required to comply with the Code of Conduct for United States Judges. This code ensures that judges avoid the appearance of impropriety, refrain from political activity, and make financial disclosures. If confirmed, will you support the establishment of a code of conduct for Supreme Court justices?

A: As I said at the hearing, although the Code of Conduct for United States Judges does not apply to Supreme Court Justices, I believe that the Justices have chosen to follow them in practice. If I am confirmed to the Supreme Court, I intend to follow the same practice as my colleagues.

Q39b. In the absence of a binding code of conduct for Supreme Court justices, will you commit to continue adhering to the Code of Conduct for United States Judges applicable to federal judges on district courts and circuit courts?

A: Please see my response to [the previous question].

Q39c. Will you commit to filing the same financial and travel disclosures that you currently file, should you be confirmed to the Supreme Court? 

A: Please see my response to [the previous question].

From Sen. Whitehouse:

Q70 (p. 60): When Justice Scalia passed away, he was at a Texas hunting lodge owned by manufacturing magnate John Poindexter. One of Poindexter’s companies, the Mic Group, was a defendant in an age discrimination lawsuit filed by a former employee who unsuccessfully petitioned the Supreme Court for review the year before Justice Scalia’s passing. This trip would likely never have been disclosed under the Court’s limited disclosure requirements. Do you agree that when a Supreme Court justice accepts hospitality from someone who has interests before the Court, that could undermine public faith in the impartiality of that justice?

A: This question calls for my views on a matter of public policy. As a sitting judge and as a judicial nominee, it would be inappropriate for me to offer an opinion on the matter. 

Q71 (p. 61). In Question #70, I am not suggesting Justice Scalia violated the Court’s disclosure requirements. My concern is that they are inadequate. Will you commit to refuse any gifts, even if they are personal hospitality, from someone who has business before the Court?

A: If confirmed, I will fully and faithfully apply all ethical rules and rules regarding gifts, and I will consult my colleagues as to the factors they use in determining to accept or refuse a gift.

Q72. If not, will you commit to disclosing all such gifts, even if the practice under the rules do not require you to?

A: Please see my response to Question 71.

Q73. During your hearing, you testified that it would be “inappropriate” for a judge to meet privately with amici “while the case in which they’ve written a brief is pending before that judge. Why is it “inappropriate” for a judge to meet privately with amici “while the case in which they’ve written a brief is pending”?

A: As I said at my hearing, it would be inappropriate to allow the amici to have access to the judges privately to try to make their case.

Q74. Will you commit, if confirmed, not to meet privately with parties or amici who have interests pending before the Court?

A: I will follow all applicable rules regarding such communications. Please also see my response to Question 73. 

Q146. Your recusals list contains the names of four Shell entities: Shell Oil Company, Shell Oil Products Company LLC, Shell Oil Refinery, and Shell Petroleum Inc. One of these is not a subsidiary of Royal Dutch Shell plc (Shell Oil Refinery). Your financial disclosure shows that you do not hold any Royal Dutch Shell stocks, bonds, or other financial instruments. Why would you need to recuse yourself from cases involving the above-mentioned Shell affiliates?

A: My father worked at Shell Oil Company for many years, and while on the Seventh Circuit, in an abundance of caution, I have recused myself from cases involving those Shell entities with which he was involved.

Q147. Royal Dutch Shell plc has approximately 1,260 subsidiaries and related undertakings, according to its most recent annual report for investors. Why have you listed only a few of these subsidiaries on your recusal list?

A: Please see my response to Question 146. 

From Sen. Feinstein:

Q19 (p. 14). If confirmed, how will you ensure that your recusal decisions are open and transparent, so the American people can understand whether and why you choose to recuse or not in each case? Please be specific in describing transparency measures you will take. 

A: The question of recusal is a threshold question of law that must be addressed in the context of the facts of each case. As Justice Ginsburg described the process that Supreme Court justices go through in deciding whether to recuse, it involves reading the statute, reviewing precedents, and consulting with colleagues. As I explained at the hearing, I commit to following the recusal process and faithfully applying the law of recusal if confirmed. 

From Sen. Blumenthal:

Q21a (p. 130). Please summarize subsections (a) and (b) of section 455, including the standard for recusal and whether the standard for recusal is objective or subjective. 

A: […] In Microsoft Corp. v. United States, 530 U.S. 1301 (2000), Chief Justice Rehnquist issued a statement declining to disqualify himself, writing that the recusal inquiry “is an objective one, made from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances.” Id. at 1302.