Justices break the ice, err glass, at budget hearing

Alito and Kagan make their debut before House Appropriations subcommittee

Justices Samuel A. Alito Jr. and Elena Kagan testify about the Supreme Court’s fiscal 2020 budget at a hearing Thursday before the House Appropriations Financial Services and General Government Subcommittee. (Chip Somodevilla/Getty Images)

At the start of a House hearing Thursday on the Supreme Court’s budget, Justice Samuel A. Alito Jr. knocked over a full water glass, which shattered on the witness table with a sound that would make any foley artist proud.

“Not off to a very good start,” Alito said with a smile, holding the bottom of the broken glass. “We’re deducting that,” a member of the House Financial Services and General Government Appropriations Subcommittee quipped from the Democratic side of the dais.

That turned out to be the liveliest moment of about 80 minutes of buttoned-down testimony from Alito and Justice Elena Kagan, who made their debut appearance answering questions from lawmakers about the Supreme Court’s budget request for fiscal 2020.

“We are rookies,” Alito told the lawmakers. “And I’m sure when I get back to the court I will hear immediately from Justice [Anthony M.] Kennedy and Justice [Stephen G.] Breyer that in all the times they appeared here they never broke a glass or spilled water.”

The justices made some small revelations. In response to a question from California Democrat Norma J. Torres about what courts are doing about judicial misconduct, Kagan divulged that Chief Justice John G. Roberts Jr. is studying whether to have a code of conduct that applies only to the Supreme Court.

Currently justices follow the code of conduct for federal judges, but the justices say they are not bound by it. Democrats have offered legislation (HR 1) to require that the justices would be.

When Georgia Democrat Sanford D. Bishop Jr. asked about diversity in hiring clerks, Kagan told him this was the first year in which a majority of the clerks are women.

And Alito, responding to a question from Bishop about President Donald Trump’s criticisms of federal judges, said he wouldn’t address anything specific but that everyone has important work to do and “we all make mistakes.”

“In general terms, I will say this: I think it is extremely important for all of the members of all three branches of our government to be accurate and respectful when we are talking about members of the other branches,” Alito offered.

But otherwise, the lawmaker questions were mostly deferential and the answers straightforward. The court’s fiscal 2020 request of $87 million in discretionary spending is just to cover existing operations, not any new programs.

The justices are satisfied with the money appropriators gave them this year to bolster physical and cyber security. They went through the well-worn defense of why they don’t want television cameras in the courtroom. Alito said the lawyers would be tempted to grandstand to have their soundbite on the evening news. Kagan said justices would filter their questions at the risk of being taken out of context.

Subcommittee Chairman Mike Quigley, who is in favor of putting cameras in the courtroom, told the justices, “We flub up a lot here, but we’re on C-SPAN, so our mistakes are live.” Before the Illinois Democrat said it, C-SPAN had posted a clip of Alito breaking the glass on Twitter.

Alito and Kagan both declined to opine on the rise of nationwide injunctions issued by one federal judge that stop a government action nationwide. When Utah GOP Rep. Chris Stewart noted the congeniality of the hearing, Kagan quipped: “We can start fighting if you want.”

It was the first time sitting justices had testified about the budget since 2015.

“We are at your disposal,” Kagan said about the possibility of an encore. “I agree with the chairman, it might not be different enough year by year by year. It might be sort of repetitive. But if you want us to come back in a few years’ time, we’d be happy to do so.”

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