Slaughtered Ethics

by Ed Whelan

In an op-ed for Roll Call, Congresswoman Louise Slaughter attempts to defend her proposed Supreme Court Ethics Act, but she succeeds only in showing that she (like many other advocates of that bill or similar legislation) doesn’t know up from down on judicial ethics.

Slaughter asserts that “many Americans would be surprised to learn that the nine justices on the Supreme Court are the only federal judges in the nation not bound by a code of ethical conduct.” One good reason that they’d be surprised is that it’s not true.

Slaughter maintains that “there are no rules requiring justices to recuse themselves because of a conflict of interest.” But the statute governing recusal (28 U.S.C. 455) applies to justices as well as lower-court judges. 

More broadly, Slaughter’s premise that other federal judges are “bound by” the Code of Conduct for United States Judges is wrong.

As judicial-ethics expert Russell Wheeler of the liberal think tank Brookings has been explaining for a long time, the Code of Conduct itself says only that it “is designed to provide guidance to judges.” It acknowledges that many of its provisions “are necessarily cast in general terms, and judges may reasonably differ in their interpretation.”

Further, the Judicial Conference of the United States, in its Rules for Judicial-Conduct and Judicial-Disability Proceedings, says that the “main precepts” of the Code of Conduct are “highly general” and that the Code “is in many potential applicationsaspirational rather than a set of disciplinary rules.” As Wheeler puts it, the Judicial Conference’s rules “explicitly reject the position that a Code [of Conduct] violation is, per se, a ground for finding misconduct.”

Slaughter also flings some smears at various justices, including repeating her insipid claim that Justice Thomas should have recused himself from the first Obamacare case.