Sen. Elizabeth Warren (D-Mass.) unveiled a plan to reform federal judicial misconduct on Monday, a day after the one-year anniversary of Brett Kavanaugh’s controversial confirmation to the Supreme Court.
“It’s time to ensure that judges do not hear cases where they have conflicts of interests, strengthen our nation’s ethics rules for judges, and ensure accountability for judges who violate these rules,” the 2020 presidential candidate wrote in her announcement of the plan for an impartial and ethical federal judiciary.
Warren’s plan includes closing a loophole that allows federal judges to escape investigations for misconduct when they resign from office or are elevated to the Supreme Court ― a loophole that Warren has railed against in the past.
“My plan extends the authority of the Judicial Conference to former judges so that individuals under investigation cannot simply resign from the bench to avoid accountability,” Warren said. “This provision would allow the judiciary to reopen the investigations into Alex Kozinski, Maryanne Trump-Barry, Brett Kavanaugh, and any other judge who benefited from this loophole.”
Kozinski was a judge on the federal 9th Circuit accused in 2017 by at least 15 law clerks of sexual misconduct. But, as Warren noted, the investigation into Kozinski’s behavior was dropped when he retired.
Trump-Barry, President Donald Trump’s sister, resigned as a federal appellate judge in April, ending a probe into whether she violated judicial conduct rules by participating in the Trump family’s alleged tax fraud schemes.
When Kavanaugh rose to the Supreme Court, sexual assault and perjury complaints against him were dismissed.
“The basic premise of our legal system is that every person is treated equally in the eyes of the law ― including judges,” Warren said on Monday. “Our judiciary only functions properly when it lives up to this promise, and it risks eroding its legitimacy when the American people lose faith that judges are ethical and fair-minded.”
Warren also unveiled several proposals she hasn’t mentioned publicly before. They include prohibiting judges from deciding for themselves whether they should recuse themselves from a case due to conflict of interest; requiring Supreme Court justices to give written explanations of their decisions when a party asks for a recusal; and giving strong disciplinary tools to judicial ethics watchdogs, such as allowing them to take away nonvested pension benefits from judges.
Warren’s plan also proposes extending the Code of Conduct for United States Judges to the Supreme Court, which is currently not covered by such guidelines.
Explaining the need for this provision, Warren cited the 83 ethics complaints lodged against Kavanaugh that were dismissed upon his confirmation to the Supreme Court, as well as the lack of action after Supreme Court Justice Clarence Thomas failed to disclose payments his wife received from a conservative judicial activist group.
“Because the Supreme Court is not covered by a Code of Conduct, no procedure exists to file new complaints” against Kavanaugh, Warren said.
She added that “questions are often raised about the behavior of Supreme Court Justices, such as Justice Thomas’s 13 years of financial disclosures that failed to list $690,000 in payments to his wife from the Heritage Foundation, a right-wing judicial activist group ― but these actions are beyond the scope of current rules.”
Such lack of oversight, Warren said, has gone on for long enough.
“These changes will not only allow us to ensure accountability for bad actors, including reopening inquiries into the conduct of offenders like Brett Kavanaugh,” she wrote. “They will also hold the vast majority of judges who act in good faith to the highest ethical standards, and in the process, begin to restore accountability and trust in a fair and impartial federal judiciary.”
Warren’s plan comes almost exactly a year after the Senate voted 50-48 to confirm Kavanaugh to the Supreme Court, following explosive allegations that he sexually assaulted at least three women when he was younger.