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Letter to Judicial Leadership on Judges' Lobbying Efforts Against PACER Bill

Judge Erickson, Judge Eagan and Mr. Deyling,

I am writing to you again this year, unfortunately, because another potential Code of Conduct violation has occurred in the third branch. My sources have indicated that judges on five Judicial Conference Committees were dispatched to lobby against the H.R. 8235, the Open Courts Act: the Advisory Committee on Bankruptcy Rules; Committee on Court Administration and Case Management; Committee on the Judicial Branch; Committee on Information Technology; and Committee on the Budget.

It is my understanding that federal judges possess no special knowledge in, or expertise of, government software procurement and deployment, so a plain text reading of Canon 4(A)(2) – “A judge may consult with […a] legislative body or official […] to the extent that it would generally be perceived that a judge’s judicial experience provides special expertise in the area” – would suggest that such lobbying was not proper under the Code’s strictures.

Though you previously counseled on June 11, 2020, that I as a member of the public cannot request that the Codes of Code Committee “provide advice or guidance […] as to the propriety of a judge or judicial employee’s conduct,” I may, as you wrote, “file a complaint alleging a federal judge has engaged in ‘conduct prejudicial to the effective and expeditious administration of the business of the courts’ pursuant to the Judicial Conduct and Disability Act of 1980” (e-mail below). But since the identities of the judges who sit on each Committee are hidden from the public, there is no way to file a complaint.

Beyond the lobbying impropriety itself, this episode raises recusal concerns. Undisclosed Committee memberships means no one knows whether the judge recently assigned to 16-745, NVLSP v. U.S. (the PACER class action in D.D.C.) sits on one of the bodies that lobbied against the bill, nor would we be confident in the impartiality of the Federal Circuit panel that hears an appeal to Judge Friedman’s ruling down the road.

I believe there are two simple solutions. First, in order to build the public’s faith that the impartiality of the judges in D.D.C. and C.A.F.C. has not been compromised by the direct lobbying effort, I ask that you release the names of the judges who sit on the aforementioned Judicial Conference Committees.

Second, I humbly request that you intervene to discourage this type of unethical lobbying from happening again in the next Congress – either via public statement or via a new ethics advisory opinion.

Thank you for your consideration,
Gabe Roth

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