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The Most Tone-Deaf Answer on Judicial Ethics One Could Imagine

On March 23, 2015, Justice Breyer was asked by Rep. Sanford Bishop of Georgia during a House Appropriations subcommittee hearing (at 51:17) why the Supreme Court doesn’t have a formal ethics code like the rest of the federal judiciary.

His answer was so tone deaf that it bears repeating seven-and-a-half year laters:

“We [the justices] all have or access to the volumes of the judicial code of ethics, and having been there for some time now — 20 years —I’d say I have not seen an instance of recusal by me or anybody elsewhere the judge doesn’t make sure it is consistent with the judicial code of ethics.

“To say [the lower courts’ code] is advisory as opposed to compulsory is words. Doesn’t really make a difference in practice. Why? What am I nervous about? I’m nervous about this: the Supreme Court is different from a court of appeals and a district court. […] Because in the court of appeals, if I recuse myself or in the district court, they can get another judge. Judges are fungible. They’re not in the Supreme Court. You can’t get a substitute.

“And I wouldn’t say there’s any lawyer in the country who would do this, but it is logically conceivable that a lawyer might sometimes think of the idea of bringing up an issue in order to have a panel that is more favorable. I know no such lawyer, but it is conceivable. And therefore, I think we have to be careful because unlike those in the lower courts, I can’t think, well, in case of doubt, just recuse yourself if it’s a close case. No. I have a duty to sit, as well as a duty not to sit. ”

Here’s the real head-exploding part:

“And moreover, I have a lot on my schedule. I have a lot to do, as do you, as do others. And trying to make this into some kind of big issue, I would prefer not because, I mean, I would think no is the answer. I have to make those decisions. I will make them as best I can. I will do it according to the [lower courts’] code of ethics and so far, I’ve been able to do that, and I don’t want it to become an issue.

“All that leads me to say no, I don’t want to give my answers [explaining reasons for my recusals] if I don’t want to. It is a personal decision. I will follow the [lower courts’] code, and that, I think, is the best way to run this institution.”

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