By Amanda Frost, Professor of Law, Washington College of Law, American University.
More than 135 law professors have signed a letter advocating that Supreme Court justices be subject to the same ethical rules as lower federal court judges and that an individual justice's decision not to recuse him or herself from a case be reviewed by others. A bill recently introduced in the House of Representatives would establish such reforms.
Russell Wheeler of the Brookings Institute has criticized the letter and the bill on three grounds. Wheeler argues that these proposals: 1) "rest on basic factual misunderstandings about federal judicial ethics regulations"; 2) "are probably unconstitutional in part"; and 3) "could create a ‘cure-worse-than-the-disease' situation."
I am one of the signatories of the law professor letter, and thus have decided to respond to Russell Wheeler's critique. This response is solely on my own behalf, and I do not speak for either the other signers of the letter or for the sponsors of the pending bill.
(1) Neither the bill nor the letter contains factual misunderstandings about judicial ethics.
Wheeler acknowledges that both the Code of Conduct and the Judicial Conduct and Disability Act of 1980 apply only to lower federal court judges, and not Supreme Court Justices. That disparity is the principal complaint in the law professor letter, and would be rectified were the pending bill to become law. But Wheeler argues that the letter mistakenly assumes that lower court judges are required to abide by the Code of Conduct. He points out that although the Judicial Conduct and Disability Act of 1980 establishes procedures for investigating and sanctioning judges, violations of the Code of Conduct do not automatically lead to a finding of misconduct. From this, he concludes that lower federal court judges are not "required" to follow it.