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Thursday, March 7, 2019

Supreme Court should adopt an ethics code

Robert H. Tembeckjian
Special to the Washington Post
Originally published February 23, 2019

During the contentious Supreme Court confirmation process for Brett Kavanaugh, and soon after he was confirmed on Oct. 6, dozens of ethics complaints against him were filed. All were dismissed on Dec. 18 by a federal judicial review panel, without investigation, because once Kavanaugh was elevated to the Supreme Court, he became immune to ethics oversight that applies to judges in lower courts.

Allegations that the review panel had deemed “serious” – that Kavanaugh had testified falsely during his confirmation hearings about his personal conduct and about his activities in the White House under President George W. Bush, and that he had displayed partisan bias and a lack of judicial temperament – went into ethical limbo.

The fate of the Kavanaugh complaints seems to have stirred House Democrats to action: The first bill introduced in the 116th Congress, H.R. 1, includes, along with provisions for voting rights and campaign finance reform, a measure to require the development of a judicial code of ethics that would apply to all federal judges, including those on the Supreme Court.

Chief Justice John Roberts is on the record as opposing such a move. In 2011, he addressed it at some length in his year-end report on the federal judiciary. Roberts argued that the justices already adhere informally to some ethical strictures, and that the separation-of-powers doctrine precludes Congress from imposing such a mandate on the Supreme Court.

Roberts’ statement didn’t deter Rep. Louise Slaughter, D-N.Y., from introducing legislation in 2013 and in subsequent sessions that would impose a code of ethics on the Supreme Court. Slaughter died last year. Her proposals never gained traction in Congress, and the current incarnation of the idea probably faces a steep challenge, with Republicans controlling the Senate and Democrats controlling the House.

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