Senator Robert Menendez slipped a provision into the draft National Defense Authorization Act (NDAA) which could allow federal judges and their families to keep secret potential conflicts of interest, but his 2018 Democratic primary opponent and other good government advocates say the measure is a prescription for trouble.
The record-high $858 billion military spending plan would shield information from federal judges and their families from being made public, including who their employer is, their positions on nonprofit boards or any institutional affiliations they might have.
Making it more difficult for citizens to hold officials accountable for ethical misconduct is not a good way to protect judges from deranged killers, said a critic.
If passed, the provision could prevent the public from learning about potential conflicts of interest.
“This well-intentioned NDAA provision to keep judges and their families safe could put at risk basic transparency measures and open the door for shadowy groups interested in influencing our courts to direct jobs, affiliations, or board seats to the spouses of federal judges with no public disclosure,” said Kayla Hancock, of the good government group Accountable.US.
“The judicial branch already has a serious issue with transparency and conflicts of interests,” said Hancock. “This provision could further damage the institution’s legitimacy and expand the influence of right-wing groups that operate behind the scenes.”
Supporters of the judicial privacy measure — named for Daniel Anderl, who was killed in an attack at the New Jersey home of his mother, federal Judge Esther Salas — praised its addition to the final, bicameral fiscal 2023 National Defense Authorization Act.
Menendez called the bill “a huge step forward for judicial security” in a statement Wednesday.
“I made a promise to Judge Salas after her son’s murder that we would do something to prevent this from ever happening to a federal judge again and we’re now on the verge of achieving that,” Menendez said.
Sen. Cory Booker, a member of the committee and one of the bill’s sponsors, praised its inclusion in the defense bill.
“No judge in America should have to fear for their life and the safety of their family as they work to deliver equal justice under the law,” said Booker, who was once mayor of Newark, where ordinary citizens face .
Earlier this year, the leak of a Supreme Court draft opinion that showed conservative justices would overturn the constitutional right to an abortion pushed judicial security concerns to front page news.
Protestors targeted justices’ homes and later prosecutors charged one man with attempted murder after they said he was arrested with a gun and a plan to kill Justice Brett M. Kavanaugh.
Those protests prompted Congress to pass a bill to expand Supreme Court police protection for justices’ families. However, the bill had some opposition in the House from members of the New Jersey congressional delegation.
In a statement following the vote in June, Democratic Rep. Tom Malinowski and five other members of the New Jersey congressional delegation said they opposed the Supreme Court security bill because it did not include the privacy measure for lower-court judges.
“The law could shield individuals like Ginni Thomas, Supreme Court Justice Clarence Thomas’ wife, potentially blocking information about how she worked to overturn the 2020 Presidential election results in Arizona and Wisconsin,” said Lisa McCormick, a progressive Democrat who challenged Menendez in 2018. “Mrs. Thomas was involved with right-wing groups and Federalist Society president Leonard Leo, the ultra-conservative judicial kingmaker.
McCormick said that before the Menendez amendment, a Wall Street Journal investigation found that more than 131 federal judges failed to recuse themselves from 685 lawsuits involving firms in which they or their family held shares from 2010 to 2018.
“Preventing the public from knowing where they work and how they make their money should set off alarms considering the many questions about Ginni Thomas, her involvement in the violent plot to keep Donald Trump in power, and her other right-wing activism” said McCormick.
The NDAA incorporates the Taiwan Enhanced Resilience Act (TERA), which was introduced by Menendez and Republican Senator Lindsey Graham, putting the United States at greater risk of being entangled in a military confrontation between China and Taiwan.
“China’s rapid military build-up, with new technologies and weapons that could be used against Taiwan … are upsetting the status quo and destabilizing the Indo-Pacific,” said Menendez. “The China challenge has become the most significant national security issue our nation has faced in a generation.”
McCormick said, “Cold War combatant Menendez is overlooking the influence of money in politics, corruption in Congress, the war in Ukraine, unresolved immigration policies, US bombing in the Middle East and Africa, and the threat of domestic terrorism in support of Donald Trump’s failed coup d’etat —all of which are significant national security issues.”
“This NDAA is a disaster for everyday people in this country. It fails to address the most urgent security risks of our time while pouring $860 billion into policies that have failed over and over again,” said Win Without War Government Relations Director Eric Eikenberry. “Even as lawmakers scrambled to max out the Pentagon’s budget, they left needed reforms on the cutting room floor. Gone from the final bill are common sense provisions to repeal the outdated and dangerous 2002 Iraq War AUMF, suspend arms transfers to the Saudi government for their transnational repression of human rights defenders, and apply human rights vetting to our secretive and unaccountable ‘security cooperation’ programs.”
“The budget-request documents the Department of Defense issues each year make passing reference to strategy but are little more than the agreed shopping lists of each military service and defense agency with no ties to a strategy, major combatant command, or plan and budget,” said Anthony H. Cordesman, the Emeritus Chair in Strategy at the Center for Strategic and International Studies (CSIS). “It should also be noted that neither the Congress, nor any other element of the U.S. government, seem to focus on a real integrated strategy that considers all aspects of national security spending.”