Indiana University Maurer School of Law professor Charles Geyh testified in favor of several federal court reforms Tuesday before a congressional panel on the judiciary. He also used the opportunity to warn that President Donald Trump’s rhetoric threatened to undermine confidence and independence in the judicial branch.
“The reason that President Trump’s recent reference to District Judge James Robart as a ‘so-called judge’ raised concern, is because it transcended robust criticism of a judicial decision and challenged the legitimacy of the court itself,” Geyh said in written testimony submitted to the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property and the Internet.
“I share conservative scholar William Baude’s characterization of this development as ‘deadly serious,’ because it reveals the judiciary’s vulnerability to defiance, and the fragility of the constitutional order if court rulings are not respected as legitimate,” Geyh continued. Trump criticized Robart’s order blocking his executive orders on immigration, which was quickly affirmed by the 9th Circuit Court of Appeals.
But Geyh also said the federal judiciary could improve its perceived impartiality and independence with three key moves: adopting disqualification reform, enacting a code of conduct for justices of the U.S. Supreme Court, and tethering judicial discipline to the Code of Conduct for U.S. Judges.
With regard to decisions about whether a judge should rule on their own disqualification from a case, Geyh urged amending 28 U.S.C. § 455 “to limit the practice of judges ‘grading their own homework’ by ruling on their own disqualification.” He also suggested removing or amending 28 U.S.C. § 144 to serve as a limited mechanism to permit one-time substitutions of judges.
“I recommend legislation that call upon the Supreme Court of the United States to join every other court in the nation and adopt a code of conduct,” Geyh said. He noted Chief Judge John Roberts rejected application of a code of conduct in his 2011 year-end report, but this did little to alleviate concerns. He cited as examples Justice Ruth Bader Ginsburg’s public criticisms of then-presidential candidate Donald Trump, as well as the late Justice Antonin Scalia and Justice Clarence Thomas speaking at fundraisers for the Federalist Society. Geyh said these instances violate various canons of the Code of Judicial Conduct.
“Skeptics have argued that it would be an empty gesture for the Supreme Court to adopt a code because there is no workable way to enforce compliance,” Geyh said. “But the pledge itself has value. Just as the public rightly expects judges to follow their oaths of office, it will also assume that a justice who vows to abide by ethics rules that the Court itself adopted will do so.
“It would be unfortunate if the only judges in the United States who see no need for a code of ethics were those on the nation’s most powerful tribunal,” he said.
Video of the hearing, which also included testimony from Mickey Osterreicher, general counsel of the National Press Photographers Association, and Thomas Burce, a professor and director of the Legal Information Institute at Cornell Law School, may be viewed here.