Justices Kagan and Alito Testify at Congress

press coverage. It was a standard budget hearing, with Justice a Elana Kagan and Samuel Alito asking for increased funding for the Court's budget, but it was the first time since the justice appeared before the committee for this rare, unscripted dialogue. Joining me as constitutional law experts, Stephen Vladdock, professor at the University of Texas Law School, So Steve, Justice Alito referred to himself and Justice Kagan as rookies. How is it decided which justices testify and when? Yeah,

I think it's a bit of a short straw. I think the justices in general aren't necessarily enthusiastic about the prospect of, you know, being open to live, not always scripted questioning on television on camera. Historically, in the past, it has actually been, you know, a function that Justices Briar and Kennedy seemed to revel. And I guess we're seeing this new you know, tag team of Kagan and Aledo, perhaps because of Justice Kennedy's departure. Now, one thing that

came under scrutiny. The Supreme Court considers itself exempt from the code of conduct that lower courts are bound by. And the lawmakers pressed the justices on this, and Justice Kagan said that the Chief Justice is considering whether to create a code of conduct for Supreme Court. Justice is the Chief Justice is studying the question of whether to have a code of judicial conduct that's applicable only to

the United States Supreme Court. So that's something that we have not discussed as a conference yet, and that has pros and cons, I'm sure, but it's something that's um that's intellect very seriously about how important is it for the court to have that? Oh, I think it's enormously important, June.

I mean, there's a there's a good reason why the Supreme Court historically has viewed itself as being not covered by these statutes, and that has to do with, you know, views about congressive constitutional power to bind the Supreme Court as opposed to the lower federal courts. But that doesn't mean that the justices shouldn't have their own rules that they publicize, that they you know, make every effort to follow, and that when they, you know, somehow want to foul them,

there's some kind of public acknowledgement and inquurity. I think the real question June is not whether the Court's going to adopt some kind of internal ethics code, and then the real questions how's it going to be enforced? And you know, if and when a justice commits an ethical faux pa um, is there going to be some kind of public accounting that there's gonna be some kind of

grievance procedure. You know, it's one thing to say, yes, will generally be bound by these rules, but those rules are only going to be as good as the notion that there's some consequence for violating them. Now, Democratic Representative Stanford Bishop site of National Law Journal study about the low numbers of minority law klerks that's come up in prior hearings. Are the justices doing any better in that regard? I think June and Summer steps they are, and Summer

steps they aren't. I mean, I think, um Justice Kegan pointed out that this term is one of the first times, if not the first time ever, that the majority of the clerks at the Supreme Court have been women. But I think there's still, you know, dramatic underrepresentation on the Court of people of color, of women of color, of a whole bunch of other you know, minority, ethnic and

national origin groups. And I think, you know, the Justices are, perhaps because of the Havanaugh confirmation implications and continuing effects, increasingly aware of this. I think between part of the problem is that and Justice Kegan just lead. I think both alluded to this in their testimony. There's still serious problems of underrepresentation among the cadre of law students from

whom the Justices are hiring their law clerks. And so I think, you know, the justices can do better, but the larger stories the law schools have to be doing better as well. They appeared before cameras at the hearing. They still don't want cameras filming Supreme Court oral arguments, something justices often say they're in favor of before they get on the court, then all of a sudden they're not in favor of it. Do their arguments have any weight in this world where everyone has a camera on

their phone and you have pictures of everything. Yeah, I mean, you know, it's funny. I wonder if if maybe there's some movement publicly about this this view. I mean, the these confirmation flights tend to be the moments when the Court is most exposed to public scrutiny, and it might actually be better for everybody if the Court was also more accessible to the public and the more mundane day

to day stuff it's doing. You know, the concern you always hear from the justices, and we heard this from Justice Alito at the hearing is that, you know, the presence of television cameras and of the sort of live same day recording would incentivize, you know, grandstanding by lawyers, would sort of push people to aim for sound bites as opposed to actually digging on the you know, the

heart of the case. I'd have to say, I mean, there a number of lower federal courts June As you know, that do video record their arguments, some of them even live student arguments. To my understand them, that's never been a concern anyone's raised in that context. I guess I just worried that, you know, this could be something of a straw man um an argument's being deployed that wouldn't actually come to fruition and practice, and that the cost is access to these recordings on the same day basis.

It seems like there's a compromise that, you know, even if we're not going to move towards video recording at the Supreme Court, we know the Court has the capability of releasing same day audio from oral arguments. You know, I think that could be something we see the Court moved toward as a matter of course, as opposed to for exceptional cases the next year or two. But I think it's going to take a majority of the justices, you know, get him over this, and that might be

a generational phenomenon. Before we're going to see cameras in the Supreme Court room and the audio comes out typically on a Friday afternoon, the audio from the whole week. Let's turn to the federal courts in general. Mitch McConnell, Senate majority leader, is focused on transport being the judiciary

to a more conservative bent. Is there a danger in his apparent rush to confirm judges and I think there's always a danger, regardless of what your politics are of you know, of Congress sort of abandoned its traditions in the name of, you know, sort of winning short term political fights. I think we've seen in the last couple of months some new precedents being set with regard to appellate judges. We saw you in for the first time ever, a federal judge being confirmed on a tie breaking vote

by the Vice President. We've seen the demise of the so called blue slip policy, where senators from a particular state could block nominees for at least circuit judge ships in their state. And I think, you know, the real question is what kind of precedent is going to step

going forward. I mean, the next time, you know, the Democrats control the White House in the Senate, are we going to see a similarly radical push to transform the courts in the other direction or the courts just going to become a ping pong ball bouncing back and forth from one partisan extreme to the other. And I guess my concern in the long term is that we need the principal center. What makes the federal courts work best is an array of viewpoints from across the spectrum, including

folks in the middle. And the more that we see this kind of approach judicial confirmations, the more we're going to see what happens to the courts mirroring what's happened in Congress, where we've seen a hollowing out of the center and an increase in push towards both wings. I don't think that's healthy in the long term for the federal courts. Is there any judge you think that has been confirmed that is not qualified to be there? You know, qualifications are so much in the eyes of the holder.

I mean, I do think if you look at like the youngest judges me just last week, Alison Russian was confirmed at the age of thirty seven to the Fourth Circuit, I don't think that, you know, qualifications in that context should be the be all end all. I think the question is are we really creating a federal bench that represents the country at large? And my concern is the more we're pushing to the extremes of either party, the less that's going to be the case in the country

that is divided so evenly down the middle. Thanks Steve, we have to leave it there that Steve Lattic, a professor at the University of Texas School of Law. Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg