Restoring Trust in an Impartial and Ethical Judiciary

By Elizabeth Warren

In December 2017, more than fifteen female law clerks alleged that Ninth Circuit Judge Alex Kozinski committed sexual misconduct and created a “hostile, demeaning and persistently sexualized environment” for employees. According to their accounts, Kozinski inappropriately touched female clerks and showed them pornography in his chambers.

It wasn’t the first time he was accused of misconduct. But what did Judge Kozinski do when the judiciary started to investigate? He retired.

And because of inadequate ethics laws, the investigation ended immediately. Meanwhile, Kozinski continues to collect his taxpayer-funded pension for life.

The Kozinski case is just one example of the broader problem of accountability in the federal judiciary.

Donald Trump’s sister Maryanne Trump Barry ended an investigation into the Trump family’s potential tax fraud and other tax schemes by resigning from the bench.

Justices Clarence Thomas and Antonin Scalia did not recuse themselves from Citizens United v. FEC, the case that opened an avalanche of money in politics to the benefit of people like the Koch brothers, who invited the pair to multiple all-expenses paid retreats.

And several judges have ruled on cases while owning stock in a company that was a party to the case, violating existing conflicts-of-interest rules that expressly prohibit this practice.

The basic premise of our legal system is that every person is treated equally in the eyes of the law — including judges. Our judiciary only functions properly when it lives up to this promise, and it risks eroding its legitimacy when the American people lose faith that judges are ethical and fair-minded.

That’s why today I’m announcing my plan to strengthen the ethical integrity and impartiality of the federal judiciary. It’s time to ensure that judges do not hear cases where they have conflicts of interests, strengthen our nation’s ethics rules for judges, and ensure accountability for judges who violate these rules.

Recusing Judges and Supreme Court Justices with Conflicts of Interest

In 2011, Eleventh Circuit Court of Appeals Judge James Hill ruled in favor of Johnson & Johnson in a case brought by a woman who suffered from a malfunctioning medical implant. He did so while owning as much as $100,000 in the company’s stock. The same judge ruled on three other cases involving companies in which he owned stock — and ruled in favor of the company each time. Judge Hill, unfortunately, is not alone: one study identified 24 cases in which judges owned stock in a company that appeared before them in court.

A basic principle of our federal judicial system is that judges make decisions as disinterested, impartial observers — stepping aside when they may not be able to decide cases objectively. This principle should also bar judges from being the final arbiter of whether they can be objective in the first place.

It’s time for fundamental reform:

Strengthening Ethics Rules for All Judges

Every lawyer in America is subject to ethics rules. Federal judges are generally subject to a Code of Conduct that applies the most basic of these principles to members of the judiciary.

But there is no Code of Conduct for Supreme Court Justices.

That means that Supreme Court Justices can go on trips with litigants, like Justice Scalia did when he heard a case involving Vice President Cheney after going hunting with him — without an independent ruling on whether it was proper to do so. It means Justices can receive large speaking fees and all-expenses paid trips to fancy conferences, like Justice Thomas did when the Federalist Society, an extremist right-wing legal group, flew him to Palm Springs and paid for meals and transportation for four days. And it means that someone like Brett Kavanaugh can face accusations of lying to Congress — without a full and fair investigation by the judiciary. These actions could violate the Judicial Code of Conduct, but because unlike all other federal judges these Justices are not bound by a code of ethics, they are immune from any judicial investigations into misconduct.

We must act now to fix this — and that means strengthening the Code of Conduct for all judges.

Here’s where I would start:

Real Enforcement for Judicial Misconduct

When a lawyer violates the ethics rules, their state’s judiciary can investigate their behavior and impose disciplinary punishment, including stripping their licence to practice law.

But the panels of judges that investigate judicial conduct complaints have limited disciplinary power beyond asking the judge to voluntarily resign or asking the House of Representatives to consider impeachment proceedings — a request the House is free to ignore.

It’s time for real accountability for judges. Here’s how we’ll start:

These changes will not only allow us to ensure accountability for bad actors, including reopening inquiries into the conduct of offenders like Brett Kavanaugh. They will also hold the vast majority of judges who act in good faith to the highest ethical standards, and in the process, begin to restore accountability and trust in a fair and impartial federal judiciary.

Official campaign account. We’re building a grassroots movement to fight for big, structural change. Join us at www.elizabethwarren.com

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