This is Bloomberg Law with June Brusso from Bloomberg Radio. For the first time, the US Supreme Court has adopted a code of conduct. It's a response to months of pressure after a stream of ethics controversies that have undercut the Court's public standing and showe new light on the Justice's friendships and financial dealings. The revelations include reports that Justice Clarence Thomas got lavish vacations, private jet flights, and
other gifts funded by Republican megadoner Harlan Crowe. But the code won't necessarily mean significant changes in how the nine Justices conduct themselves. The rules are mostly a codification of existing principles, and the Justices stop short of creating a system for the public to lodge complaints or for an outside review of alleged violations. The rules are mostly a codification of existing rules that apply to the rest of the federal judiciary, but without the type of complaint system
that applies to other federal judges. Joining me is an expert on the judiciary, Carl Tobias, professor at the University of Richmond Law School. Carl, what's your initial reaction to this code of conduct? Well?
I think it pretty much applies the same ethics rules to the Supreme Court, with some limited exceptions, and basically adopts twenty at USC four fifty five, which applies to all lower federal court judges, magistrate judges, district judges, appeals court judges.
Is there anything special in there?
Like?
Would anything there tell you if Justice Thomas has to recuse himself in a case involving let's say, Harlan Crow.
Yes, I mean, I think there are provisions in there. If a justice has knowledge of a financial interests of someone like Crow, then I think the Justice would need to seriously consider recusing. But that doesn't change what we've had before. But I do think that's relatively clear from what's there.
Didn't the justices always say that they followed this judicial code?
Yes? Yes, But I mean I think reasonable people could differ about whether they actually did. I think it's valuable in order to be able to say they are subject to it. Now have signed on to this, but it
will be difficult to enforce in certain situations. I assume if other people don't know of some kind of conflict, and so it's still going to be dependent substantially on the justices themselves and recognizing potential conflicts and then either decided to recuse or causing with their colleagues and deciding whether they should or should not.
So there's no enforcement mechanism. Say a group says, oh, I think that Justice Alito shouldn't sit or shouldn't have sat on that tax case where one of the lawyers involved interviewed him for the Wall Street Journal. Is there any mechanism to enforce that.
It doesn't seem like it, though. I suppose someone could try to petition the justices on something that they thought was irregular or inappropriate, and always lawyers have been able to suggest refusal, right, And I don't think that changes. Then the justice can respond to that, and they do, and certainly Justice Kalia did on many occasions, and others have to.
Does it seem like this really moves the ball forward? Does it really change things?
Not substantially? No, I don't think so. But we can't really know because we don't know what has gone on internally in the court among the justices. Some of that's just not public.
What do you mean by that? What could have gone on?
Well, any justice could say to the other justice, I think I have a conflict, let's talk about it, or you know, I can't decide what to do in this situation, and they may have thrashed it out. We just don't know about that.
With this code, it leaves it up to the individual justice, for example, to decide whether to recuse himself or herself.
I think basically, yes, that doesn't preclude the fact that a well intentioned justice would bring it up with his or her colleagues and hopefully that would happen seek guidance from them. Perhaps.
Do you think it was the public pressure or the pressure from Senate Democrats? What do you think it was that got them to finally do this? Well?
I think discretion was the better part of valor, and I think they realized that it wasn't going to calm down until something happened, and so they needed to act. And I think you know that that is a good thing in some ways, because there was going to be a huge subpoena fight already has been in Judiciary committee, and I don't know that that was going to really help that much. But again, it doesn't have an enforcement mechanism you suggests, and so we'll have to see how
it works in practice. May difficult to detect.
Yes, the Supreme Court is not what you'd call a transparent institution. Well, let's turn now to judicial confirmations. And President Joe Biden reached a milestone last week. He secured as one hundred and fiftieth federal judicial appointment with a record breaking number of women named to the bench.
Well, the milestone is important of one hundred and fifty and now actually it's up to one hundred and fifty three and will be higher today after judge and at the Alba of the Eastern District of California is confirmed to the Ninth Circuit. So in that one hundred and fifty or so, one hundred of those appointees are women, approximately one hundred are ethnic minorities, in fifty or so are black appointees. So he's broken all kinds of records
in turn of ethnic minority appointments. And what is also very important is experiential diversity. So you're seeing a number of federal public defenders, state public defenders, as well as civil rights attorneys, people who've worked for the ACLU, legal aid lawyers in the mix. And all of that is what Biden pledged to do and has kept his word and is continuing to do that with new nominees and new appointees.
Confirmations have slowed, haven't they compared to earlier in his tenure?
A little bit? Yes, And part of the issue is nominations because there are not very many vacancies in states represented by two senators, and most of them now are in states where at least one senator is a Republican. But there's been some breakthroughs. For example, there were four vacancies in Florida last week. All four people were nominated, three were women of color, and three were magistrate judges. And I think they'll easily be confirmed and hopefully relatively soon.
So that's a promising sign. But there are other red states. For example, Texas, there're seven vacancies there, I think almost all emergencies, and Missouri has Eastern District has three emergencies and no nominees, and so we'll be looking at those. There two in the Northern District of Indiana. The Indiana Senators have been very good about moving two people to the appeals courts and filling district vacancies.
Do you think you'll be able to match former President Donald Trump's two hundred and thirty four judicial nominations, especially because it seems like the Democrats' control of the Senate is in jeopardy.
Well, I think so, because if you look at the comparable date in twenty nineteen, Trump had confirmed forty six as opposed to Biden's thirty seven appellate conferenes. But Biden is ahead on district nominees one hundred and sixteen to
one hundred and twelve. And so, depending of course on the shutdown if that comes, and what else happens this year and next year, which of course is an election year when it may slow somewhat, we'll see, but I think he's on track and could do that, but needs to have a few more nominees, and the nominees to
be in sync with the Judiciary Committee shared. Durbin has said he would have hearings every two weeks the Senate is in session, and of course he has the holidays coming up, but when they come back in January, I think they will have more nominees, and there's still many on the floor, and so I think he is on track to surpass what Trump did. But we'll see what happened.
Coming up next. Those gag orders on Donald Trump. This is Bloomberg. I've been talking professor Carl Tobias at the University of Richmond Law School about judicial appointments. Carl, we've spoken before about how Republicans and Republican voters have always seemed to be more concerned about judicial appointments and Supreme Court appointments than Democrats. Has that changed in any respect in light of recent Supreme Court decisions and lower court decisions that don't follow precedent.
Well, I think Chair Durbin and the President and all the Democratic members of the Senate Judiciary Committee are painfully aware of that history, and so rules about blue slips for circuit nominees they've retained the ones that the Republicans used and to their benefit in terms of confirming people. And Durbin has expressly said in committee publicly that we're not going to have different rules for Democrats and Republicans.
So I think Democrats have learned their lesson to the extent that there were different standards, different requirements, and so now I think Democrats are pushing just as aggressively as Republicans did, But of course they're getting pushed back from a number of GOP senators too, who are not always in sync with the nominees of the president.
Do you think that Democratic voters are recognizing the importance of the judiciary when they cast their ballots.
I think so. That's certainly what we saw in Virginia, and I'm in the middle of that. And so the abortion issue was I think the driver in the Democrats retaining this Senate in Virginia and then also regaining a House majority here. And you saw similar things, and for example, even red states like Ohio with the abortion issue on the ballot, and a number of other states around the country.
So I think yes, And I think going to twenty twenty four, with the chaos in the House of Representatives and with the abortion issue and other hot button issues, that Democrats are doing relatively well. And especially people are cognizant of the judges because of the pushback on overturning Rod versus Way.
Speaking of judges and being cognizant of the judges, one judge who's been in the news a great deal is the New York trial judge Arthur and Gorin because of the problems he's had with former President Trump in the New York Attorney General civil fraud trial against him. So already the judge has fined Trump twice for violent a gag order on him making any kind of comments about court staff. How often do you hear about gag orders like that?
Well, not very often, fortunately in the past. But I think in the short term we're likely to hear about it more. And I think the judges are perfectly within their rights to take measures to protect themselves and protect their staff, because you do not want those court employees, much less jurors or witnesses, to feel that their safety is threatened by litigants in the court. You just can't have that kind of situation.
When Trump was on the stand last week, the judge was just pushed to the limit. He said things like, can't you control your client? You can say whatever you want about me, but just answer the question. I mean, he was just uncontrollable. Now, this is a trial where the judge is going to make the decision. But what happens if Jump decides to take the stand in a criminal trial. There'll be a jury in that case, And how does a judge keep him under control.
Well, I think it's difficult, but I think you're right. The New York judge was a model of restraint and pleaded with the lawyers to try to bring their client under control. And so I think that is the best way to proceed, and I think he showed substantial patience in the face of that. And that's what you want a judge to do, is to be restrained, but to keep the process moving along and to protect court personnel, witnesses, jurors in that situation. And that's one reason for the
gag orders and then the penalties. Judges have broad discretion to sanction litigants who disobey any kind of order that the judge issues.
I'm wondering is this a tactic because the attorneys have also have been very aggressive in that courtroom and very critical of the judge to the judge's face.
So is that a.
Tactic for an appellate issue? But I mean, what kind of an appellate issue would it be? The judge lost his temper? Is that an appellate issue?
Doesn't seem like it. But the other thing, of course, is that lawyers are officers of the court, and the court can ask them to try to keep conduct appropriate for a courtroom, and they can do that in any number of ways. But I don't think an appellate court is going to have much patience with arguments based on the fact that the judge overreached, especially if it's extreme behavior on the part of the client or of the attorney.
The judge in DC, Judge Tanya Chuckin also issued a gag order. None of these gag orders prevent Trump from talking about the judges in the case, but this was to prevent him from t talking about the witnesses, the special counsel, and his staff, and that's being criticized as being unconstitutionally vague. The problem is that Donald Trump is running for president, So even in the New York case, the lawyers contended that he could say whatever he wants because he's running for president.
Well, Tanya Jacobe, in Your Own Publication wrote a piece responding to that and criticizing the view that it was unconstitutionally vague, and she makes a pretty strong argument saying it's observed on its faith. Trump has made bald threats if you go after me, I'm coming after you, and that kind of language is inappropriate or gag order picks up on that. It says that we just can't have that threatening of witnesses or staff or judges.
That injunction in DC is going to be litigated, perhaps all the way to the Supreme Court. We'll see, Thanks so much, Carl. That's Professor Carlton by Yes of the University of Richmond Law School. Coming up next on the Bloomberg Law Show, the issue of reporters privilege. A judge in DC has ordered a reporter to reveal her confidential sources, and the plaintiff has asked for some stiff sanctions. I'm June Grosso and you're listening to Bloomberg. This is Bloomberg
Law with June Brusso from Bloomberg Radio. Almost all federal and state courts have found that state and federal constitutions provide a qualified privilege to allow journalists to refuse to reveal the names of their confidential sources and the unpublished information provided by the sources. There is currently a case in DC that's testing that privilege. Catherine Herriage is refusing to reveal her source for a series of stories she reported on in twenty seventeen when she was a reporter
at Fox News. Joining me is an expert in media law. John Eppsy, a partner at Hall Still, So tell us about this case where the reporter is facing the possibility of some serious sanctions.
From time to time we have situations in the country where the important policies of the free press and the freedom of litigant in order to get discovery clash, and that's what we had in this case. This is a case where a scientist filed a lawsuit against the FBI claiming that the FBI had breached the Federal Privacy Act by disclosing information and in this case, by disclosing information
to a reporter. The scientists then in the course of the lawsuit, subpoenaed the reporter in order to get information about who actually disclosed the information that she claims was a violation of the Act. Importantly, she got the federal judge to order the reporter to sit for a deposition and provide that information. The reporter, Catherine Herridge, who was originally had done the story for Fox and is currently a CBS reporter, but the report was done in twenty sixteen.
Miss Herridge sat for the deposition and politely declined to provide that information. And so now what the Miss Chen's council has done has filed a motion for sanctions, asking the court to require Miss Hendridge to finally disclose that information, and those sanctions could be in the form of severe monetary penalties or even potentially jail.
Did Jen subpoena the FBI as well?
That's an important question because it's one of the things that goes into whether or not the information should be disclosed. It's what information has she sought in the litigation? Has she done whatever she could in order to get alternative sources?
And so I don't know to what extent she has actually gone to get that information from the FBI, but the judge has determined that she is done enough to seek information from alternative sources in order to require this reporter to disclose the information.
Tell us about the reporter's privilege in general.
So the reporter's privilege is different with respect to each state, except for one has its own reporter's privilege, and then the federal law has its own different set of reporter's privileges, so that it becomes a little bit confusing as to
in which jurisdiction you find it in. But most of the reporter's privileges provide it's a qualified privilege, which means that the reporter may be forced to disclose confidential source information or unpublished information if certain things apply, one of which is does the information go to the heart of the matter, is it absolutely necessary for the lidy to have The other is has the litigant tried to get the information from alternative sources, and of course is that
information available from alternative sources. Then the court would then have to balance the interest between whether or not the litigant should be able to get the information, or whether or not, even if there is no alternative source, whether the reporter should be able to withhold that information because the policy reasons behind the reporter's privilege.
So in this case, the judge then did what he was supposed to do. He balanced the interests, and in his opinion, the interest weighed in favor of the disclosure.
That's what he'd said, and that's what he said initially. So initially what happened was the subpoena was issued and immediately the reporter said, no, I'm not going to comply with a subpoena. They went and the judge ordered her to at least sit for the deposition. She sat for the deposition, and then when the questions were asked about
who her sources were. She declined to provide that information, and so then the litigant, the scientist Chen and her counsel had to go back to the judge and say, okay, she's now declined. Now we want you to issue sanctions. So the judge has not yet issued any sanctions yet, that's still pending, but that is likely to happen. There's going to be some sanctions that will happen. The question
is what are those sanctions. So the judge believes that based on what he heard, that the balancing required disclosure. Of course that that was met with some serious backlash from media advocates and free speech and free press advocates.
And the reason is because even if there were no alternative sources, you've got a situation where if this reporter is sanctioned, whether it's severe monetary sanctions or prison, you're going to put this reporter and the next reporter on the next important case in a position to whether they have to choose between whether to sit in jail and wait for something to happen, or pay a hot, high fine,
or to basically burn the source. The reporter had agreed to give confidentiality to the source so that the source would come forward, so that choice will have to be made. If that choice is made, and for instance, and the source is disclosed, then what happens in the next case when the next reporter seeks to get information from a source, that source may not be willing to give it if they're concerned that the confidentiality will be breached. And so
these are unfaced. You would think, Okay, this is a litigant that wants to get information, they should be entitled that information so that they can live to get the case. But it has ramifications, and the ramifications are it may be that if future witnesses or whistleblowers are afraid to come forward, then important information will not reach the public.
Are there any circumstances in which the judge would be correct in ordering a reporter to reveal his or her sources.
There is an important case years ago called the Brandsburg case, which a lot of this comes from, at least with respect to federal jurisdiction. And in Brandsburg, a third party or a witness was subpoenaed by the government to appear at a grand jury proceeding and to testify, and the reporter that that was a reporter, and the reporter fought that, and the United States Supreme Court determined that no, under those circumstances. In that case, the reporter was required to
testify at the grand jury. And so a lot of times that comes into place when the reporter is actually a witness to a particular crime, you know, in that case, courts sometimes say, well, you know, a journalist, a journalist should be treated just like any other person, and if you're a witness to a crime, you should have to testify before the grand jury. Where a lot of these cases come in is not necessarily when the journalist is a witness of the crime, but when the journalist is
actually you know, as a private citizen. But it's when the journalist is actually serving as a reporter and getting information about a crime that has already happened. Then the question is should that journalists have to come forward and testify about what that journalist learned from its sources. And I've explained why, you know, I think that it's really important to be able to protect your sources and your
unpublished information because you know, it could lock down. You know, there's been so many important stories over the years that have only been told because the witnesses or the sources came forward and required confidentiality. Had that information had that confidentiality not been promised and protected, than those witnesses wouldn't have come forward and the public would never have learned about these important things.
Where does the importance of the story weigh in here?
The more important the story is, that's one more argument in favor of not disclosing. But I would argue also that even in what you or I might determine to be a lesser important story, if it's still it's important to somebody, it's important to the confidential source, it's important to the people that are involved in that particular issue, And even if it might not be important to the rest of the country, it's still a confidentiality that was promised.
And so if that confidentiality is breached in that what you're thinking of as the lesser important story, it still could impact the next very important story if that if that witness in the very important story is concerned that his identity is going to be disclosed.
Also, so in this case, Chen is alleging that the federal authorities improperly leaked information about her, violating a privacy act. So if she doesn't get that information from the person it was leaked to. Then I suppose her case is dead.
Well, I don't know if it's dead, you know, I certainly don't know all the ins and outs of everything having to do with her particular case. But the fact of the matter is there was information that was published in those twenty seventeen stories. So maybe if she can't find out who in fact disclosed it, she at least
has the information that in fact information was disclosed. And whether you know whether or not it kills her case that it was a particular person at the FBI that disclosed it, or whether it was just somebody at the FBI that disclosed it, she still might be able to
proceed forward. And also we don't know, I mean, there may be other ways for her to get the information of who who specifically disclosed it, you know, by going through the FBI or or potentially other sources that we just aren't aware of.
Are cases like this over reporters privilege regularly litigated? Have we not been hearing that much about them? Because, you know, investigative journalism is not what it used to be.
Yeah, I think I think some of that, But yes, definitely, in our practice we are often asked to go into and when I say often, I mean, you know, two or three times a year are often asked to go in and protect the rights of the reporter or the media outlet from having to disclose either confidential sources or
unpublished information. So it happens, It does happen regularly, but it doesn't oftentimes get in the news as much as this particular case unless you've got a pretty high profile litiganto, a high profile reporter, or a situation where a reporter is actually doing some time. You might remember several years ago, New York Times reporter Judith Miller had a confidential source case and she refused to disclose the identity and she actually sat in jail for eighty five days. So you know,
it's interesting. You know, I don't know specifically what the strategies are of Chen, or even of the judge and where he sees this case going, but he did issue an order last week or so, and he said, you know, now that the contemp proceedings are teed up, one of two outcomes appear likely. Either heriage will be held in contempt in the near future and can immediately appeal that order,
or as sometimes occurs. In these cases, the sources may release heroage from the privilege rather than watch or undergo the consequences of the contempt. So that happens sometimes times where you've got a source who sees now that the reporter is willing to go to jail for that source, and then the source comes forward and says, no, no, no, no, I don't need you going to jail for me. I'll come forward and I'll identify myself. So now you're not being held in contempt for failing to disclose.
That happens.
My concern about situations like that, while I appreciate it, my concern about that is I think it still might impact the future case where a future confidential source is concerned about whether or not they're going to disclose something based you know, on the I guess prospect that the reporter might be jailed and they might have to come and identify themselves. So I still think the issue still is important.
We assume she's going to appeal this, Where where would the appeal go is A is this a DC case? Absolutely? And we assume she's going to appeal this, that would be to the DC Circuit Court of Appeals. So where did the sanctions stand.
Lawyers have filed for sanctions, and now the judge is going to have to consider that and determine if sanctions are going to be awarded, which is probably likely, and then if they are awarded, what are those sanctions. The Chen lawyers have asked for pretty severe sanctions because they believe that Fox, because that's where Catherine Herridge was when
the stories came out. They think that Fox is funding and would basically put up any money if there was a monetary deal, and so they don't believe that that would actually be any pressure on her to disclose the information, and they want individual sanctions on her. Also, we don't know what those sanctions would be. It could be more severe personal monetary sanctions where she'd have to play them herself, or possibly jail or something else, but it'll be pretty strong.
And then once that happens, she'll have the right to appeal, and I'm sure she'll appeal immediately. And then there's also questions about if she is sanctioned, would the judge then stay those sanctions pending the appeal And I don't know the answ I don't know what the judge will do in this particular case, But my guess is that the appellate court would get to this issue rather quickly.
Is there anything happening in Congress?
Almost all every state has a journalist privileged statute. Federal law does not have a statute on the newsman's privilege, and so from time to time there's bipartisan efforts taken in order to try to get a Newsman's Privilege Act codified. And so lately there's been something called the Press Act that is where certain legislators on both sides of the aisle are trying to get a newsom's privilege codified for
federal purposes. As of now, that has not passed. My personal concern is it might not be politically expedient for some legislators to vote for it, and so I'm concerned about that.
Thanks for being on the show. John. That's John Epstein, a partner at Hall Still. And that's it for this edition of the Bloomberg Law Show. Remember you can always get the latest legal news on our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast Slash Law, and remember to tune into the Bloomberg Law Show every weeknight at ten pm Wall Street Time. I'm June Grosso and you're listening to Bloomberg