WASHINGTON (CN) — The fight to take the Supreme Court to task continued at the Senate on Wednesday as lawmakers considered what supporters have framed as a tonic for the court's refusal to consider the ethical conduct of its justices.
“From the very first days of the republic, Congress has regulated judicial conflicts of interest to help preserve the judiciary’s integrity,” Rhode Island Senator Sheldon Whitehouse said during a hearing of the Senate Judiciary Committee. “It’s time for Congress to step back in to fortify the administration of these laws.”
Whitehouse, who chairs the judiciary panel’s subcommittee on the courts, has been a vocal proponent of ethics reform at the country’s highest court — a cause that has been bolstered among lawmakers in recent weeks amid reports that Supreme Court Justice Clarence Thomas received high-dollar gifts from conservative megadonor Harlan Crow. These revelations have spurred Senate Democrats, including Whitehouse and Illinois Senator Dick Durbin, to demand that the high court implement official ethical standards.
Though it is not bound by a code of ethics, the Supreme Court does have regulations governing financial disclosures and has been resistant to reform proposals. Chief Justice John Roberts has said that justices should not be held to the same standards as jurists on lower courts. Back in April, he provided Congress with a statement of judicial ethics signed by all nine justices.
For Whitehouse and other Senate Democrats, that’s not enough.
“If the Supreme Court isn’t going to do anything to restore the public’s trust, then it’s up to Congress,” the Rhode Island senator said Wednesday.
Whitehouse has introduced a piece of legislation known as the Supreme Court Ethics Recusal and Transparency Act, which among other things would force the high court to adopt a formal code of ethical conduct. The process would also be open for public comment, which the lawmaker has said would ensure transparency.
The measure, abbreviated to Scert, also takes aim at the recusal process for Supreme Court justices. “My bill would end the practice of Supreme Court justices judging their own conflicts of interest and require better disclosure and transparency,” Whitehouse explained, “so the public knows when a justice has a connection to a party or amicus before the court — requiring justices to explain their recusal decisions for everyone to see.”
Members of a panel of expert witnesses invited to testify Wednesday urged lawmakers to follow through on ethics reform at the high court. Donald Sherman, executive vice president and chief counsel at the advocacy group Citizens for Responsibility and Ethics in Washington, said that improving ethical conduct on the Supreme Court should not be a partisan issue.
“One cannot acknowledge the ethical blunders by both liberal and conservative justices in recent years and credibly defend this untenable status quo,” Sherman said. “Every single one of the current justices has rebuffed basic oversight and reform, arguing that we should trust them to make their own recusal decisions despite years of scandal at the court.”
James Sample, a law professor at Hofstra University’s Maurice A. Deane School of Law, was also critical about the lack of cross-aisle consensus. “In our polarized political era, the tendency is to see nearly every issue through a partisan lens,” he said. “Viewing robust judicial ethics rules as partisan, however, is reductive at best and corrosive at worst.”
In response to a line of questioning from Senator Durbin, Sample pushed back on claims from some opponents of ethics reform — including lawyers for Harlan Crow — that legislation forcing the Supreme Court to adopt a code of conduct would run afoul of constitutional separation of powers.
“It’s clear that Congress does have the authority to regulate the Supreme Court,” Sample said. “Indeed, separation of powers doesn’t mean that one branch of government is entirely independent of the others.”
Congress regulates the size and budget of the high court, the salary of the justices, and several other provisions, the professor argued, insisting that legislation such as Whitehouse’s proposed measure would not impinge on the Supreme Court’s ability to make independent decisions.
“Congress has been in the business of making manifest the Article 3 promise that there will be a Supreme Court,” Sample said, but without legislative action, that guarantee “would be a parchment promise at best.”
Despite that, Jennifer Mascott, a law professor at George Mason University’s Antonin Scalia Law School, raised concerns about what she saw as constitutional issues in the Scert Act. Mascott primarily called attention to provisions in the bill requiring that the code of ethics drafted by the Supreme Court be made available for public comment.
Mascott distinguished the Supreme Court and the federal judiciary, both of which were established to be impartial, from the executive branch and Congress, where the public can use the power of the electorate to take a more direct role in policy. “I think it’s important to think through whether there is tension in having the public comment on ethical codes of the Supreme Court, which we want to stand apart from political considerations and moors,” she said.
On the statement of ethics that Chief Justice Roberts shared with Congress, Mascott called it evidence that the high court’s justices are listening to lawmakers’ ethical concerns. “It sounds as though from the chief’s statement … that the Supreme Court justices are aware of concerns, and are going to continue to be careful as they have been in trying to police and make their own decisions and be faithful to make sure that they’re recusing in cases where they have involvement," she said.
No Republican lawmakers attended Wednesday’s hearing — a conspicuous absence that Whitehouse blasted via Twitter after the meeting.
“They know the recent behavior at the Court is indefensible,” the lawmaker said. “Absence, like silence, speaks volumes.”
Senate Democrats on the judiciary panel last week threatened to issue a subpoena for real estate developer Crow as they investigate his relationship with Justice Thomas. Lawyers for the conservative megadonor have so far rebuffed the committee’s inquiry, which comes after reports that Crow paid for the jurist’s lavish vacations, purchased property from him and footed the bill for a nephew’s private school tuition, among other things.
Justice Thomas issued a rare public statement in April following initial news of Crow’s gifts, denying any wrongdoing and contending that he had consulted with court officials and other justices who had advised him such hospitality would not require disclosure. Although the Supreme Court has no code of ethics, some court experts believe Thomas may have violated its financial disclosure guidelines.
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