When it comes to security and transparency in the judiciary, there’s no need to sacrifice one for the other
The security of our public officials is of paramount importance, especially at a time of rising political violence. Transparency is also a national priority, as democracies falter when government agents choose corruption and misinformation over the common good.
Security and transparency are often seen in conflict, as some believe that increasing the latter endangers the objectives of the former. But they don’t have to be, and to understand why one must look no further than our federal judiciary.
The judiciary right now is at a critical juncture. Threats against federal judges have reached record highs. The son of a judge in New Jersey was murdered by a man who sought to harm that judge. Threats against Supreme Court Justices Sonia Sotomayor and Brett Kavanaugh have been reported, and our federal judges must be able to do their jobs without fear of violence.
At the same time, these jurists have amassed more power than at any era in recent memory. Since no official imbued with such power is exempt from the temptation of corruption, laws promoting judicial accountability must be strengthened.
This fall’s lame-duck session presents an opportune time to tackle these challenges together.
On security, there are several administrative ways to make judges safer, from improving their taxpayer-funded home security systems to adding smarter security barriers at courthouses. On the legislative front, a bipartisan group of lawmakers are seeking a new authority that would permit judges to sue individuals who, following a written request, refuse to take down a judge’s personally identifiable information (PII) from the Internet, like their home address, personal e-mail or social security number.
The theory is that this type of information might be used by would-be assailants to harm judges or their families. Similar bills, albeit with fewer PII categories, were signed into law in Illinois and New Jersey after violence against judges occurred in those states.
This approach is not without disagreement, as civil libertarians have pointed out the legislation might constitute government censorship of speech about judges. But these are issues that lawmakers can work out as they seek to accomplish the larger goal of a better protected branch.
On transparency, there remains an unjustifiable gap between the information provided to the public by lawmakers regarding their free travel and gifts and what judges and justices provide.
On the positive side, advocates seem to have support from House Speaker Nancy Pelosi (D-Calif.) and leading members of the House and Senate Judiciary committees. In March, Pelosi signaled her views by rhetorically asking at a press conference, “Why should they” — meaning the Supreme Court — “have lower standards than members of Congress in terms of reporting and all the rest?”
Six weeks later, that question was partially answered in the negative — as in, the justices should not have lower reporting standards — when President Biden signed a bill authored by Sens. Chris Coons (D-Del.) and John Cornyn (R-Texas) and Reps. Deborah Ross (D-N.C.) and Darrell Issa (R-Calif.) requiring the justices and our 2,400 lower federal court judges to post online their annual financial disclosures (within 90 days of the filing deadline) and details of their stock transactions (within 45 days of a sale or purchase). Members of Congress and top executive branch officials have faced similar requirements for a decade.
But that wasn’t a complete answer. Judges and justices should also be required to file the same publicly available travel disclosures that lawmakers file, listing within 30 days of their return the trip’s sponsor, the reason for it, who else attended and how much their hotel, transportation and food cost. Currently, jurists only report some of these details merely once per year, and they never include dollar amounts. There’s an obvious difference when a sponsor organization pays for a judge to “stay in Paris while teaching a seminar” versus one that includes a private jet, a private chef and a stay at Versailles. The current reporting scheme does not account for this difference.
The judiciary desperately wants a security bill to pass, and transparency advocates are, of course, partial to bills that would raise the reporting standards for judges and justices.
But with time short in this session of Congress, each side should be willing to give a little, with the result being a safer, more ethical judiciary.
Gabe Roth is executive director of Fix the Court.