WASHINGTON (CN) — As the Supreme Court begins its fall session, Senate Democrats are again ramping up their probe into the ethical conduct of its justices, demanding yet again that a group of figures key to the investigation turn over financial records and other information.
Led by Senate Judiciary Committee chair Dick Durbin, lawmakers have for months pressed for the Supreme Court to adopt a formal code of ethics — the high court has rules governing financial disclosures, but no explicit guidelines for ethical conduct. If the court won’t seize the initiative on such a code, Democrats have advanced a bill that would force its hand.
The legislative push comes amid a steady stream of reports that several Supreme Court justices have engaged in ethically questionable behavior. At the center of this controversy is Justice Clarence Thomas, whose relationship with conservative megadonor Harlan Crow drew scrutiny following reports that the billionaire real estate developer has over the years lavished the jurist with luxury vacations and other high-dollar gifts.
Senate Democrats, investigating Thomas’s conduct, have demanded that Crow turn over reams of financial records detailing travel, lodging and other gifts given to the jurist over the years. Lawmakers made similar requests to Leonard Leo, a conservative activist who has also been embroiled in ethical controversy surrounding Justice Samuel Alito.
Both men have so far rebuffed those demands, arguing that the Senate’s effort to legislate Supreme Court ethics reform runs afoul of the Constitution — specifically, its separation of powers doctrine which establishes Congress and the judiciary as two separate but equal branches of government.
“Congress cannot conduct an investigation in connection with legislation that it cannot constitutionally enact,” wrote Leo’s attorney David Rivkin in a July letter to lawmakers.
Durbin, however, said Thursday that such a defense holds no water, writing in letters to Crow, Leo and billionaire Robin Arkley that the argument “is at odds with basic separation-of-powers principles favoring checks and balances.”
In the letter to Leo, signed by all judiciary committee Democrats, Durbin contended that Congress has had a hand in crafting several of the Supreme Court’s institutions. Among those, the lawmaker cited the U.S. Judicial Conference and “a number of longstanding judicial ethics-related laws” which the high court has adhered to “without complaint.”
The Illinois Democrat also rejected Leo’s argument that the inquiry into his relationships with Supreme Court justices was personal political retaliation, calling that charge “frivolous” and saying it “mischaracterizes the focus of the Committee’s investigation.”
Durbin pushed back on complaints leveled by Leo and Crow that other justices who have been accused of ethically dubious conduct — such as Justice Sonia Sotomayor who reportedly had court staff promote book sales — were being ignored.
“[A]ll the conduct you cite was properly disclosed,” Durbin wrote, “whereas the Committee’s investigation focuses on the problem of undisclosed conduct. As undisclosed gifts by wealthy benefactors continue to be revealed, one commonality in these reports is your connection to the undisclosed gifts from these benefactors.”
In a separate letter to Crow, Durbin tossed a proposed compromise from the billionaire’s team, under which he would provide limited details about his gifts to Justice Thomas over a five-year period. In exchange, Democrats would agree to drop their probe into the megadonor’s financial records.
Such a deal was unacceptable for lawmakers, who have demanded Crow turn over itemized lists disclosing all travel, lodging and other expenses over $415 that he covered for the jurist.
“Receiving partial responses during this arbitrary time period is insufficient to inform the Committee’s ongoing legislative efforts,” Durbin told Crow. “Parties with matters before the Court continue to take advantage of access to justices made possible by both disclosed and undisclosed transportation, lodging, and other gifts.”
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