Democrats have introduced a bill to impose a new ethics rule – including mandatory recusal standards – on the Supreme Court. Though aimed at the High Court – and Justice Clarence Thomas, specifically – the 21st Century Courts Act of 2022 would require all federal courts to establish an ethics guideline meeting or surpassing a certain minimum standard, which includes forcing judges and justices to recuse from cases in certain situations. For those wondering what power Congress has to regulate federal courts beyond confirming and impeaching judges and justices, the answer is none – which is precisely why this act bears no repercussions should the courts simply ignore it.
Updating Ethics for the 21st Century
As Liberty Nation Legal Affairs Editor Scott D. Cosenza, Esq. explained last month, “Supreme Court Justice Clarence Thomas is under fresh fire from Democrats keen to make political waves ahead of the 2022 elections.” The justice’s wife, Virginia “Ginni” Thomas, recently made headlines over leaked text messages between her and Donald Trump’s chief of staff, Mark Meadows, about the 2020 election. And make no mistake – this is pure politics leading into a critical election cycle.
Speaker of the House Nancy Pelosi (D-CA), Senate Majority Leader Chuck Schumer (D-NY), and Rep. Alexandria Ocasio-Cortez (D-NY), along with several others, immediately demanded Justice Thomas either recuse himself from the case relating to the January 6 protest or face repercussions – including impeachment.
Introduced by Sen. Sheldon Whitehouse (D-RI), the new bill directs the Judicial Conference – the national policy-making body for federal courts, which is made up of federal judges – to craft and implement a code of ethics to apply to all the federal courts save SCOTUS. The Supreme Court, of course, is expected to come up with its own qualifying code and share it with Congress in a timely fashion, lest it be held to whatever the Judicial Conference decides.
The primary function of this rule would be for judges or justices to recuse themselves if, within a six-year period, they or anyone in their immediate families worked, volunteered, lobbied, or donated significant funds for or received any sort of gifts, payments, or other reimbursements from any party, lawyer – or an affiliate of either a party or lawyer – in a case they’ve been assigned. Essentially, if an argument could be made that there’s a conflict of interest, a motion can be put forth demanding the judge or justice be recused from the case.
The Comptroller General of the United States will conduct an annual audit to make sure folks are complying with the law, and the Federal Judicial Center will also be on the hook for a compliance/noncompliance report at the end of each year. Both will report directly to Congress. Furthermore, any motion to recuse and any ruling that follows must be posted on the relevant court’s website – including the reasons for the recusal motion and the ruling. All court proceedings – including oral arguments and readings of opinions before the Supreme Court or any court of appeals – must be recorded, and the videos must be made available to the public. Courts can still seal records, so long as they can demonstrate a good reason, but only after public notice and adequate time for the sealing to be challenged.
The Power of Unenforceable Law
The Constitution grants Congress some power over the judicial branch. Specifically, the Senate must confirm federal judges and justices, and, jointly, the legislature can remove them later through the impeachment process. Let’s run down that rabbit hole a moment. Say this law passes, and Justice Thomas doesn’t recuse himself. The House can – and, let’s face it, likely will – file articles of impeachment against him so long as it remains in Democrat control. Indeed, it’s quite possible impeachment may come even if this doesn’t become law. A simple majority can successfully impeach a justice, just as it can a president. However, just as with a president, the Senate then needs a two-thirds majority to convict. That means, assuming all the Democrats toe the line, 16 Republicans must join them. “That may not be as hard as passing a camel through a needle’s eye,” Mr. Cosenza quipped, “but it’s not realistic.”
Though the bill is heavy on regulation and review, it skips over any punishment for noncompliance entirely. The reason is simple – aside from confirmation and impeachment, there really isn’t anything Congress can do here. As has always been the case, all the legislature can really do to “enforce” this act should it become law is impeach or, alternatively, to overwhelm the offending justice’s potential power by packing the court with those who would oppose him or her.
Democrats must know this bill won’t make it through the Senate. The timing and specific measures contained within make it clear that it’s aimed directly at Justice Clarence Thomas, and even if all the liberal senators sign on, it’s unlikely enough Republicans will join them to overpower a filibuster. So why bother? Well, quite plainly, Election Day cometh. Biden’s presidency has been one disaster after another since January 2021, abortion restrictions and constitutional carry have both sprang up across the nation like wildflowers after a summer rain, and the slim lead held by the left in Congress seems likely to evaporate in November. Democrats need something to fire up the voters. Much like the recent Affordable Care Act update, this virtue signaling at Justice Thomas’ expense fits the bill.
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