It’s probably never crossed your mind but how do the People hold our nation’s highest court accountable? In this country no one is above the law, not the president, not a member of Congress and certainly not anyone in our third branch of government where the standard-bearers of law and ethics preside. Given the events of recent months involving Supreme Court nominee (and now Justice) Brett Kavanaugh and this past week’s public debate between President Trump and Chief Justice John Roberts, this question looms high in minds of many.
Indeed a deputy attorney general and other experts around the country have outlined a path for impeaching Justice Kavanaugh based on perjury, sexual abuse and other allegations emerging from his Senate review process. That path is no different than the one used to remove the president and other members of the federal judiciary. With a new Democrat majority, the impeachment half is plausible, but with an increased majority in the Senate and a two-thirds vote to convict the newest member, removal is highly unlikely.
Article II, Section 4 of the Constitution limits grounds for impeachment to “Treason, Bribery, or other high Crimes and Misdemeanors.” But what about ethics violations which fall short of those grounds? Where do the People go to hold our highest judges accountable? There is a federal code of ethics which applies to district judges, appeals judges and other federal judges, however, notably absent from its scope and application is the Supreme Court. Are they above the law? Do they have any ethics to observe?
Under Canon 3A(6) of that federal code of ethics, a judge is prohibited from public comment regarding the merits of any “pending or impending case” (emphasis added). Impending means any case which may ultimately come before a judge on appeal. Did Chief Justice Roberts violate that ethical code when he gave a public rebuke of President Trump’s allegations of political bias regarding a federal immigration ruling. It came in a case clearly “impending” for high court review. The wisdom behind the code provision was demonstrated by the volley of insults which followed.
In an October 8, 2018 public address, Justice Elena Kagan warned that the kind of political battle which surrounded the Kavanaugh hearings was undermining “the legitimacy” of our nation’s high court. Yet Justice Kagan did nothing to counter or rebuke her colleague on the Supreme Court, Justice Ruth Bader Ginsburg, when she repeatedly lashed out at Donald Trump from her chambers during the presidential elections. She was obviously endeavoring to exploit the stature of our highest court to influence the outcome only days before the Republican National Convention. Even the liberal media condemned her antics, and it compelled me to file a motion for her disqualification in a case I had then pending before the Supreme Court.
Which brings us to another ethical provision. Canon 2B of the federal code prohibits a judge from “lending the prestige of judicial office to advance the private interests of the judge or others.” Is that not precisely what Justice Ginsburg was doing in 2016? And why did the Chief Judge John Roberts not issue a public rebuke of her presumptive comments and attacks in the manner he did to President Trump? Even with the Chief Justice’s neglect of duty, why did no other member of the Court call for a vote of censure as they do in Congress and other bodies of government throughout the United States? In this way the public could be assured that the Court as a whole does not share Ginsburg’s views.
There are many other subjects which the citizenry has a right to bring up in an ethics complaint demanding rebukes, censures or admonitions in our highest court. For example Canon 6A(4) requires a judge to “accord to every person who has a legal interest in a proceeding, and that person’s lawyer, the full right to be heard according to law.”
This rule of ethics is in line with constitutional rights of due process, equal protection and the right to petition government for a redress of grievances, or our “supreme” laws of the land. Yet in 2013, the Supreme Court promulgated a rule prohibiting self-represented litigants from arguing their cases before the justices. Did not the Court create a two caste system of justice, one for the chosen ones and the other for the low life proletariat?
There is much irrationality to this rule considering my position as a self-represented litigant repeatedly denied access to the Supreme Court despite an unblemished and successful career as a trial and appellate attorney in federal and state courts prior to the retributions I sustained as a judicial whistleblower. Indeed I successfully argued a case before Justice Sonia Sotomayor when she presided on the federal Court of Appeals in Manhattan. It can be Googled at Patterson v City of Utica, 370 F3d 322 (2nd Cir. 2004). Am I suddenly unqualified to present argument to the same Justice Sotomayor ten years later simply because she ascended to another building?
The Supreme Court may be our highest court but it is not an elite or royal tribunal without any obligation to comply with ethics. And it has a duty to give whistleblower protection to a lawyer who exposed widespread misconduct as I did but was consequently subjected to a witch hunt by ethics lawyers. Only weeks later those same lawyers were allowed to resign (and never prosecuted) for falsifying time sheets. They essentially stole money from their court employers (Torncello, Zayas and Devane).
The public does not expect our high court to be perfect but we do expect that they abide by the same rules applied to the rest of America. When Barack Obama was first inaugurated as president in 2009, Chief Justice Roberts improperly administered his oath of office. When the error was discovered, a duplicate ceremony was conducted at the White House with participation limited to the media.
In his most recent public rebuke of President Trump, Roberts proclaimed that “what we have is an extraordinary group of dedicated judges doing their level best to do equal rights to those appearing before them.” How can that be when this same Court created an elite group to make those appearances with one member (Ginsburg) sleeping during an Obama state of the union address?
Oh, but that’s right, there is no code of ethics here.
Dr. Leon R. Koziol
CONCLUDING NOTE: It is important that you promote and share this message with fellow court victims, media and good government groups. We must organize and rally for accountability in Washington next year! It’s our duty and defense of our eroding rights.