WASHINGTON—As part of a sweeping judicial ethics plan, Senator Elizabeth Warren wants to close a loophole that allows federal judges to skirt investigations of misconduct by retiring or becoming elevated to the Supreme Court — a move that would allow officials to re-open probes into Supreme Court Justice Brett Kavanaugh and President Trump’s sister.
Warren, who has made ending corruption in Washington a central tenet of her campaign for the Demcratic presidential nomination, released the plan Monday morning with the goal of restoring the public’s trust in the federal judiciary by strengthening ethics rules and ensuring accountability for judicial wrongdoing.
Currently, when a judge retires or is elevated to the Supreme Court, any investigations into their conduct are stopped. Retired judges are not subject to judicial conduct rules, and Supreme Court justices don’t have an adopted, written code of ethics they have to abide by. The Supreme Court is the only court in the country without an adopted, written code of ethics.
“The basic premise of our legal system is that every person is treated equally in the eyes of the law – including judges. 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’s proposal said.
The release of the plan coincides with the start on Monday of the Supreme Court’s new term, in which justices will hear major cases on guns, aborton, gay and transgender rights, and immigration. It also comes a year and a day after Kavanaugh was confirmed to the Supreme Court after a bitter partisan battle over his nomination.
Under the current system, 83 ethics complaints that had been made against Kavanaugh were tossed away because he was elevated to the nation’s highest court. There is no existing procedure to file new complaints. Warren’s plan would allow for an investigation to be reopened into sexual misconduct allegations against Kavanaugh, as well as into the alleged wrongdoing of several retired judges.
That includes Trump’s sister, Maryanne Trump Barry, who has faced allegations that she participated in fraudulent tax schemes with her siblings while a federal judge. When Barry, who served on the US Court of Appeals for the Third Circuit in Philadelphia, began to be investigated by a court council about this misconduct, she retired in April. That led to the case being dropped without a finding on the merits of the allegations.
Former federal appeals court Judge Alex Kozinski also evaded an investigation into sexual misconduct by retiring. Kozinski left his position in December 2017 after multiple women accused him of making unwanted sexual comments and inappropriate touching. The investigation promptly ended.
In another component of the plan, Warren wants to change how judges handle cases in which they have a significant conflict of interest. She proposes to prohibit judges from deciding for themselves whether they should recuse from a case, instead allowing the chief judges in federal regional circuits to establish a binding recusal process.
Warren also wants to ban judges from owning or trading individual stocks, citing multiple instances in which judges owned shares in a company that appeared before them in court. All these revisions, she argues, will help establish a more impartial and ethical judiciary.
“These changes will not only allow us to ensure accountability for bad actors, including reopening inquiries into the conduct of offenders like Brett Kavanaugh,” Warren 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.”