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Adams and Reese Partner Lucian Pera, a leading ethics law attorney, teamed up with the Hon. Benes Z. Aldana, President of The National Judicial College, to author “Judges Weigh in on SCOTUS Ethics,” published in Bloomberg Law.
The professional perspective column discusses the results of a validated survey of randomly selected judges from across the country, published by The National Judicial College, an independent, non-partisan institution dedicated to educating state and federal judges.
Pera practices legal ethics, media law, and commercial litigation. Pera was a member of the ABA “Ethics 2000” Commission, which rewrote the ABA Model Rules of Professional Conduct. Pera chaired the editorial board of the ABA/BNA Lawyers’ Manual on Professional Conduct and served as President of the Association of Professional Responsibility Lawyers.
Below is the article published by Bloomberg Law.
Judges Weigh in on SCOTUS Ethics
Practical Guidance - Legal Profession, Professional Perspective
Contributed by Benes Z. Aldana, The National Judicial College
and Lucian T. Pera, Adams and Reese
In the high-profile debate about the ethics of U.S. Supreme Court Justices, some lawyers and scholars have shrugged and worried aloud about whether a binding code of ethics for life-tenured Justices is possible.
They point to separation-of-powers issues and the practical question of how enforcement may work. Whether these concerns are valid — that's very much up for debate — the shrugs often come down to this: is an enforceable code of ethics for the Justices even feasible? Is there any way to make it work?
As things stand today, the Court has recently adopted a code of ethics for the very first time in its history, but it's quite clearly voluntary and has no enforcement mechanism at all.
Well, here's some news.
America's judges — the ones not on the Supreme Court — have just told us overwhelmingly that a binding and enforceable ethics code for the Court is not only a very good idea and needed, but entirely possible, using tools readily at hand.
The National Judicial College, an independent, non-partisan institution dedicated to educating state and federal judges, recently published a validated survey of randomly selected state and federal judges from across the country.
Bear in mind, the respondents were all judges — they should know something about judicial ethics and its enforcement. Every last one of them is subject themselves to a binding, enforceable, and applied code of ethics. This includes the justices on the 50 “other” supreme courts spread across the country from Hawaii to Maine.
The headlines from the survey show a truly remarkable consensus about the need for a binding Supreme Court code of ethics. The judges who responded also identify some practical solutions for their brother and sister judges on the Supreme Court:
- 94% of respondents support implementing a code of ethics for the U.S. Supreme Court, with only 5% opposed and 1% unsure.
- 88% think adherence to a Supreme Court ethics code should be involuntary, while 9% think it should be voluntary, with 3% unsure.
- 67% prefer enforcement by review with possible disciplinary actions, or review with recommendations for impeachment (43%), or non-binding recommendations, both private and public (20% each).
- The responding judges also prefer a tiered system of sanctions, ranging from private recommendations to impeachment.
- 42% of respondents support enforcement by an independent panel, with 38% favoring as the responsible enforcer the existing Committee on Judicial Conduct and Disability—established by Congress in 1980 to handle complaints concerning federal judges. Only 5% favored the Senate Judiciary Committee as the enforcement body.
If the Justices needed validation that policing their own ethics is both necessary and feasible, from experienced and informed sources, America's judges have offered it.
Particularly stark is the overwhelming consensus among America's judges — remarkably, about 90% — that the Justices need a binding code of ethics governing their conduct, and they also need an enforcement mechanism. It is hardly surprising that the people whose job it is to be the front-line guardians of the rule of law think that all judges should be transparently subject to the rule of law in their own conduct.
The existing federal Committee on Judicial Conduct and Disability may work just fine for the Justices. Alternatively, all 50 states have a court of last resort and all of the justices serving on those courts are bound by an enforceable code of ethics. Whether the existing federal system is used or a new system is modeled after one of the state systems, an enforceable ethics code for the Supreme Court is feasible and necessary.
America's judges did express understandable concerns about the enterprise. They raised questions about the Justices’ ability to self-police, the potential misuse of a binding ethics code by political branches, the possible “weaponization” of ethics enforcement, and the risk of infringing on constitutional separation of powers. They also thought it important to ensure that any enforcement body remains independent and free from political influence. But those concerns clearly did not stand in the way of their consensus that the Court today needs a binding and enforced conduct code.
The judges also expressed support for clearer rules, such as prohibiting gifts over $500 without disclosure, and transparency through public disclosure requirements.
Judges are speaking with near unanimity on this issue, and it's time we listened to their advice.