WASHINGTON (CN) — Partisan tensions flared during a Senate hearing Tuesday as Democrats pushed for ethics reform at the U.S. Supreme Court amid concerns that at least one justice has shirked financial disclosure rules.
The Supreme Court's lack of a code of ethical standards has long been a point of frustration for watchdogs, and one that in recent weeks has come to aggrieve congressional Democrats, spurred on by reports that Justice Clarence Thomas neglected to report gifts he received from real estate developer Harlan Crow, as well a property sale that he concluded with the conservative megadonor.
During a Tuesday hearing of the Senate Judiciary Committee, lawmakers drilled down on those revelations, arguing that Thomas’ alleged conduct shines a spotlight on what they said were the high court’s comparatively lax ethics standards.
“The rest of the federal judiciary, and the executive and legislative branches, have codes of conduct designed to prevent even the appearance of fraud or abuse or corruption,” said Senator Dick Durbin, who chairs the panel. “Ethics cannot simply be left to the discretion of the nation’s highest court.”
The Illinois Democrat called himself a longstanding proponent of ethics reform at the Supreme Court — the lawmaker in 2012 asked the judiciary to consider adopting a code of conduct such as those followed by other federal judges. Chief Justice John Roberts had pointed in response to a report that the high court published the year prior, concluding that it should not be held to the same ethical standard as lower courts.
Roberts, who more recently turned down an invitation to testify before the judiciary committee, provided Durbin last week with a statement signed by all nine Supreme Court justices laying out the high court’s ethics principles. Such a document is not binding, though the high court’s justices are held to standards governing financial disclosures.
Durbin made it clear that he was not satisfied with Roberts’ response, given the reports on Justice Thomas’ conduct.
“The chief justice’s letter and statement of principles are a defense of the status quo, and they are oblivious to the obvious,” the Democrat protested. “This is not the ordinary course of business, nor should it be a standard.”
He added that Roberts’ refusal to address public concerns hurts confidence in the Supreme Court. “And, because the court will not act, Congress must,” he said.
For Senate Democrats, that action looks like Rhode Island Senator Sheldon Whitehouse’s Supreme Court Ethics, Recusal and Transparency Act.
Reintroduced in February, the proposed legislation would, among other things, direct the high court to adopt a code of conduct with public input and stand up an investigative board of federal judges to analyze ethics complaints against justices.
Whitehouse positioned his measure Tuesday as a disinfectant for what he said were deficiencies in financial disclosure requirements that allow Supreme Court justices to play fast and loose with ethics rules and sidestep investigation.
“Three things are needed to fix all this: better enforcement, better recusal rules and better disclosures,” the Rhode Island Democrat said. “My bill would do all three. Until there is an honest ethics process at the Supreme Court, these messes will continue.”
Meanwhile, Senate Republicans — who have been sharply critical of recent Democratic scrutiny of the high court — sought to paint Tuesday’s hearing in a completely different light.
“We can talk about ethics, and that’s great,” said South Carolina Senator Lindsey Graham, the judiciary panel’s ranking member. “But, we’re also going to talk about a concentrated effort by the left to delegitimize this court and to cherry-pick examples to make a point.”
Graham and other Senate Republicans contend that the latest ballyhoo about Supreme Court ethics is rooted more in opposition to the court's recent conservative rulings than any genuine concern for the institution.
On more than one occasion, the South Carolina senator asserted incorrectly that all justices had signed off on Roberts’s April 25 letter to the committee in which the chief justice refused to testify. In fact, the nine justices all signed the attached statement of ethics but not the preceding letter.
Speaking in conclusion about his interest in increased Supreme Court transparency, Graham distinguished this aim from what he said was an effort by Democrats to increase congressional control over the judiciary. “If you want to talk about making the court a better institution, I’ll be glad to work with you in that regard,” Graham said. “If you want to talk about destroying the court, count me out.”
Invited to testify Tuesday, former California federal judge Jeremy Fogel echoed the sentiments of Democratic lawmakers but stopped short of impugning any of the high court’s sitting justices. Fogel, who is also the executive director of the Berkeley Judicial Institute, argued that the lack of public trust in the judiciary makes a clear ethics code necessary.
“Too many Americans already think that the justices decide cases based on their political preferences and alliances rather than the law,” Fogel said. “Lack of clarity about the justices’ ethical obligations only feeds that perception.”
Fogel noted his agreement with the spirit of Roberts’ argument against adopting a code of conduct but said the Supreme Court should not completely forgo a set of ethical standards. “The point is that a formal code of conduct would provide clearly stated, visible rules and procedures to which the justices are expressly committed," he said.
Witnesses at the hearing summoned by Republicans sounded the alarm about legislating an ethics code for the high court. Michael Mukasey, who served as attorney general under the George W. Bush administration, worried that such a move could weaken the constitutional separation of powers.
“It is the Supreme Court and not the Congress that has the constitutional prerogative to decide whether to adopt a formal code of conduct governing the individual justices,” Mukasey said. A law compelling the court to establish such a code would cross the constitutional barrier between the two branches of government, he held.
Mukasey also balked at criticism of Justice Thomas’ closeness with conservative megadonor Crow, arguing that the two had been friends for decades and that the real estate developer had no business before the Supreme Court. The former attorney general repeated the explanation proffered by Thomas that he did not disclose Crow's gifts at the purported guidance of colleagues told him the gifts were exempt from financial reporting requirements.
“The dark and intense criticism directed at justices over these transactions … are impossible for me to square with the professed concern for the integrity of the court,” Mukasey said.
Though Thomas has said that he has always tried to follow disclosure guidelines since he was appointed to the Supreme Court in 1991, some legal experts have said his failure to report Crow’s gifts would amount to violations of the court’s disclosure laws.
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