Durbin Tells Judiciary Supreme Court Ethics Code Falls Short (1)

The Supreme Court’s recently adopted ethics code for the justices still falls short, Senate Judiciary Chairman Richard J. Durbin told the judiciary at its twice-annual meeting Tuesday, a source familiar said.

The justices have come under increased scrutiny in recent years following news reports that justices accepted undisclosed gifts from donors. The high court adopted a code of ethics for itself last year that lacks an enforcement mechanism, leading to continued calls to beef up guidance. Justice Elena Kagan endorsed the idea at an appeals court conference in July, and Justice Ketanji Brown Jackson said she would be open to enforcing the code in an interview earlier this month.

Durbin (D-Ill.), who has consistently called for an enforceable ethics code in public remarks, told judiciary officials at the meeting that while adopting the ethics code was an important step, it is still less than what should be expected from the high court, according to the source. Durbin also encouraged the conference to publicly support proposed legislation to crack down on judge-shopping, the source said, referring to the practice of filing litigation in courtrooms perceived to be friendlier.

Durbin’s remarks were first reported by Reuters.

The senator’s remarks came during the twice-annual meeting of the Judicial Conference, the judiciary’s policymaking body chaired by Chief Justice John Roberts, where judges are briefed on various policy work by the courts. Roberts was in attendance at the meeting, the source confirmed.

Other attendees of the meeting included Attorney General Merrick Garland and other members of the Judiciary Committee, including Sen. Sheldon Whitehouse (D-RI) who has made ethical lapses among the high court justices a core focus, Sen. John Kennedy (R-La.), and Sen. Susan Collins (R-Maine), according to Judge Jeffrey Sutton, who chairs the Judicial Conference’s executive committee.

Spokesperson for Kennedy, Whitehouse, and Collins declined to elaborate on their remarks to the conference.

Sutton, who briefed reporters Tuesday, said the conference focused on cybersecurity, particularly ahead of the presidential election.

Seventh Circuit Judge Michael Scudder, who leads the judiciary’s information technology committee, said his “overarching message” to the conference “was to underscore that now is a time when everyone in the judiciary needs to stay extra alert and be extra smart and vigilant” when using and monitoring IT systems.

Judge Robert Conrad, who leads the Administrative Office of the US Courts, presented on workplace conduct issues, Sutton said. Workplace conduct emerged as a key issue following the resignation of an Alaska federal judge found to have sexually harassed his former clerk and engaged in other sexual misconduct.

The judiciary has faced scrutiny for its handling of misconduct issues in the workplace. A GAO report released in July found that there may be an underreporting of complaints because the judiciary doesn’t track ones that are raised outside of the official processes.

Another July report issued by the Federal Judicial Center and the National Academy of Public Administration also found that workplace misconduct plans are inconsistently applied through the judiciary and that staff remain reluctant to report misconduct by judges.

Sutton on Tuesday said that the judiciary thinks the reports show “that we’re doing a good job, but they show we’re not perfect, and we have some other things we can improve on.”

The federal judiciary created a working group on workplace misconduct issues in 2018, which has led to changes like the creation of a national office to advise employees on how to file complaints.

Rep. Hank Johnson (D-Ga.), the top Democrat on the House Judiciary Committee’s courts panel, said earlier this month that he and other lawmakers planned to re-introduce legislation in the coming weeks to beef up protections for employees of the federal judiciary. Unlike other federal government employees, judiciary workers are not currently covered by civil rights laws. The Senate legislation would be led by Sen. Mazie Hirono (D-Hawaii), he said.