Brennan Center for Justice

Congressional Democrats Propose Ethical Standards for Supreme Court
Democratic Congresswoman Louise Slaughter (NY) and Senators Richard Blumenthal (CT), Chris Murphy (CT), and Sheldon Whitehouse (RI) introduced a bill last Thursday proposing that stricter ethical standards be applied to the United States Supreme Court, according to the Huffington Post. The Supreme Court Ethics Act of 2013 would subject Supreme Court Justices to the Code of Conduct for United States Judges, which already applies to all other federal judges. Among other things, the code lays out recusal rules and regulates judges’ participation in extrajudicial activities. The Huffington Post notes that the debate over Supreme Court ethics reemerged last month when a Mother Jones article reported “that Ginni Thomas – a well-connected tea party consultant and wife of Justice Clarence Thomas – held an integral role in Groundswell, a conservative coalition of journalists and activists that has been meeting privately to coordinate talking points and messaging on key political issues. The revelation led to a new round of questions about whether her brand of partisan activism should constitute a conflict of interest for her husband, who has been tasked with ruling on many of the issues that she is involved in.”  Justices Antonin Scalia and Clarence Thomas have also attended several events that drew criticism from reform advocates on the left, including a Koch Industries fundraiser in 2010, several months after the Citizens United ruling, and a 2011 fundraiser for the conservative Federalist Society. A group of lawmakers, including Slaughter, asked Chief Justice John Roberts to voluntarily adopt the Code of Conduct in 2012, but he declined. According to the Huffington Post article, “The Supreme Court's traditional resistance to a binding code of conduct could make the bill difficult to implement if passed.”
Sources: Nick Wing, Supreme Court Ethics Act Proposed In Response To Controversial Behavior By Justices Scalia, Thomas, Huffington Post, August 1, 2013; Code of Conduct for United States Judges, United States Courts, June 2, 2011; David Corn, Inside Groundswell: Read the Memos of the New Right-Wing Strategy Group Planning a "30 Front War,” Mother Jones, July 25, 2013;  Stephanie Mencimer, Is Ginni Thomas' Expanding Activism a Problem for Supreme Court Justice Clarence Thomas?, Mother Jones, July 26, 2013; Sam Stein, Justices Scalia And Thomas's Attendance At Koch Event Sparks Judicial Ethics Debate, Huffington Post, October 20, 2010; Federalist Society Fundraiser, Alliance for Justice; Letter from United States Congressmen to Chief Justice John Roberts asking the Supreme Court to adopt the Code of Conduct, March 6, 2012; Letter from Chief Justice John Roberts to Senator Pat Leahy rejecting the Code of Conduct, February 17, 2012; Mike Sacks, Chief Justice John Roberts' Defense Of Supreme Court Ethics Doesn't Soothe Critics, Huffington Post, January 5, 2012.

D.C. Circuit Court Appointment Process Sees Progress
The Senate Judiciary Committee has approved Patricia Millet’s nomination as a judge on the U.S. Court of Appeals for the D.C. Circuit, according to a Huffington Post article. The 10-8 vote was split according to party lines, with the eight Republican members arguing that the D.C. Circuit is underworked and does not need any new judges. "The last thing we need to do is spend $3 million a year for three judges that are not needed," said Senator Jeff Sessions (R-AL) in the article. "We can't just move these three forward. It would be violating our commitment to the American people." Millet is the first of three current nominees to the D.C. Circuit to receive approval by the Judiciary Committee. Amid concerns that President Obama’s nominees to the D.C. Circuit will be filibustered, a coalition of more than 90 groups sent a letter to each member of the Senate, urging them to hold yes-no votes for each of the nominees, according to Legal Newsline. The coalition wrote, “Whether you support or oppose Millett, Pillard and Wilkins, please allow the American people to see you and your Senate colleagues express that position in a yes-or-no confirmation vote for all three nominees.” Although Millet has been approved by the Judiciary Committee, many hurdles remain as she still faces a confirmation vote from the full Senate.
Sources: Jennifer Bendery, Patricia Millett, DC Circuit Court Nominee, Clears Senate Judiciary Committee, Huffington Post, August 1, 2013; Jessica M. Karmasek, More than 90 groups urge Senate to allow yes-or-no votes on D.C. Circuit nominees, Legal Newsline, August 1, 2013; All Three D.C. Circuit Court Nominees Should Get Yes-or-No Votes, Coalition letter, July 31, 2013.

STATE JUDICIAL SELECTION

Criticism Surrounds Kansas Judicial Nomination Process
Kansas Senate Minority Leader Anthony Hensley (D) has called on Governor Sam Brownback to name his nominee to the state Court of Appeals three weeks earlier than required by statute, in order to give the legislature more time to vet the candidate before the start of a special session called by the Governor, according to a Wichita Eagle article. The law requires Governor Brownback to select a nominee by August 29^th. While ordinarily the nominee would be considered during the legislature’s general session in January, the Governor called a special session to begin on September 3^rd for the purpose of rewriting a state sentencing law, and the Senate majority leader has stated that the Governor’s judicial nominee must also be considered during this special session. Senator Hensley has complained that the special session reflects ulterior motives. “I strongly believe that the people of Kansas are being misled. This special session is an orchestrated decoy. It isn’t about being tough on crime. It’s about Governor Brownback sneaking in his secret appointee to the Court of Appeals as fast and with as little public scrutiny as possible. This is a maneuver to get this controversy swept under the rug before next year’s election.” Senate Judiciary Committee Chairman Jeff King refuted this claim, stating, "This will probably be the most thorough confirmation hearing the state has seen in recent memory, as it should be. There is absolutely nothing to the allegations that this nomination will be snuck through in any fashion." Senator Hensley has asked the governor to reveal his nominee by August 3^rd so that the legislature will have more time to do background research and properly examine the candidate. Eileen Hawley, a spokesperson for the governor, said Governor Brownback will select a new judge “as quickly as he can.”

Governor Brownback has already faced strong criticism by refusing to publicly release the names of candidates being considered for the Court of Appeals, breaking with over 30 years of tradition. Governor Brownback had previously stated that his position was consistent with American Bar Association (ABA) recommendations that names of candidates remain undisclosed. The ABA issued a strong response to this assertion last Monday in a letter that was published in the Kansas City Star. ABA president Laurel Bellows wrote, “The ABA emphatically does not recommend Kansas’ new method of judicial selection for circuit court judges. In fact, it opposes that method, which eliminates the independent nominating commission and confers complete control over the judicial selection process on the governor and senate. We believe this approach invites partisan politics instead of merit-based review of a potential judge’s qualifications.”
Sources: John Hanna, State Democratic leader calls for early court nomination, Associated Press via Wichita Eagle, August 2, 2013; Top Kansas Democrat Says Special Session Is About Judge's Approval, Associated Press via WIBI.com, July 29, 2013; John Hanna, Lawmaker pledges scrutiny for Kan. court nominee, Associated Press via San Francisco Chronicle, July 31, 2013; Laurel Bellows, Brownback wrong, Kansas City Star, July 29, 2013.

District Court Selection Process to Change in North Carolina
The North Carolina legislature recently voted to change the way trial court vacancies are filled in the state, according to a Wilkes Journal-Patriot article. In the past, the North Carolina Bar has been required to submit three nominees to the governor, who then picks a new judge from those candidates. The article states that “under the new legislation, the local bar must select five nominees, if possible. The governor must ‘give due consideration’ to the recommendations, but the new law doesn’t require the governor to choose one of the five nominees.” A News & Record blog argues, if Governor Pat McCrory signs the bill, the current law will be replaced with a “totally closed process in which the governor makes the selection, potentially with no local input at all. The public may not even know what candidates are being considered.” Lawmakers who support the new bill expressed concern over the North Carolina Bar’s role in the selection process. “I’ve always felt that the bar, which is not elected, should not be able to tie the hands of the governor, who is elected,” said Sen. Tim Moore (R-Cleveland). Charlotte lawyer John Wester, a supporter of the current judicial selection system, said, “I think of an analogy here. If a member of my family was headed to heart surgery tomorrow at Carolinas Medical Center, I would like to know that the chief of the cardiovascular team was screened by fellow cardiologists.”
Sources: John Hubbard, New way to name judge is proposed, Wilkes Journal-Patriot, July 29, 2013; Doug Clark, We're losing the best process for filling vacancies on the bench, News & Record, July 29, 2013; Elizabeth Leland, Legislation would give governor autonomy to fill District Court vacancies, Charlotte Observer, July 26, 2013.