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The Week Ahead: Court-Fixing Comes Into Focus

From FTC executive director Gabe Roth:

On Wednesday at 10 a.m., the House Judiciary Committee will mark up H.R. 7647, the Supreme Court Ethics, Recusal and Transparency Act. This is essentially last month’s 21st Century Courts Act minus a few provisions. It has the SCOTUS code of conduct, recusal reforms aimed at recent ethics scandals and stronger disclosure of lobbying and gifts by parties and amici, but live video and anti-sealing taken out.

I expect Democrats to be united in advancing the bill. I expect Republicans to oppose and say it’s a response to the actions of one justice, though I testified to the Committee two weeks ago, and last week reiterated to a Senate panel, that it’s obviously not. (This bill had been in the planning stages for 15 months, and Ginni’s Textgate simply moved up the intro date a few weeks.) Of note, since the last and only time a bill that included a SCOTUS ethics code passed the Committee (unanimously in 2018), the R side has had massive turnover, with two-thirds of them no longer there. The GOP staff in the 115h also largely left.

Next, on Thursday at 10 a.m., the House Financial Services and General Government Subcommittee will hear testimony from the judiciary on their FY23 budget. This will be the first time federal judges will appear before Congress since the final passage of the Courthouse Ethics and Transparency Act, requiring judges to file stock transaction reports and post disclosures online, a bill the judiciary tried to stop; a panel of judges sitting in the Fourth Circuit held that judiciary employees have 5th Amendment equal protection and due process rights, which came weeks after House Judiciary held a hearing on third branch harassment and the (judiciary-opposed) Judiciary Accountability Act (JAA); Leader Schumer put the (also judiciary-opposed) free PACER bill on his schedule, meaning a floor vote could come at any time; Judge Jackson was confirmed; the SCOTUS leak(s) occurred. We also expect some (good) news Thursday on the status of the circuit courts’ pandemic-era livestreaming experiments.

I anticipate Judges Mauskopf and St. Eve will be asked about compliance with CETA, their views on the JAA and free PACER, what constitutes an unscalable fence and general thoughts on stare decisis (e.g., “is it for suckers?”).

Third, at some undetermined time this week, President Biden will sign the Courthouse Ethics and Transparency Act, as noted above. He has 10 non-Sunday days to sign it, and the clock started on May 3, when says the bill was transmitted to him. Also, if he doesn’t sign it and Congress is in session, it becomes law.

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