WASHINGTON (CN) — A top Senate Democrat leading the charge to reform the Supreme Court’s ethical standards ratcheted up his criticism of Justice Samuel Alito Tuesday, demanding the high court’s chief jurist investigate his colleague’s reported conduct.
Rhode Island Senator Sheldon Whitehouse lodged a formal complaint against Alito just weeks after The Wall Street Journal published an op-ed that quoted the justice criticizing the Democratic lawmaker's proposed legislation to require the Supreme Court to draft a formal code of ethics in the public eye.
Alito offered his take amid swirling reports that he had neglected to disclose a 2008 fishing trip with a Republican billionaire who later had business before the court. Alito has dismissed any perception that his conduct was unethical.
Now, Whitehouse has demanded that Chief Justice John Roberts investigate Alito’s comments, arguing they represent yet another breach of Supreme Court ethics.
“In the worst case facts may reveal, Justice Alito was involved in an organized campaign to block congressional action with regard to a matter in which he has a personal stake,” the Rhode Island Democrat told Roberts in a letter Tuesday. “Whether Justice Alito was unwittingly used to provide fodder for such interference, or intentionally participated, is a question whose answer requires additional facts.”
The July op-ed featuring Alito's interview was penned by James Taranto, the Journal’s editorial features editor. Sharing the byline, however, was Washington-based lawyer David B. Rivkin Jr., who is slated to argue a major tax case before the Supreme Court in its upcoming term.
Rivkin is also working as counsel for conservative activist Leonard Leo, who organized Alito’s 2008 fishing trip and who has been an outspoken critic of Whitehouse’s legislation.
In the interview Alito, who was appointed by former President George W. Bush, suggests that efforts to police the Supreme Court’s ethical conduct would be unconstitutional.
“Congress did not create the Supreme Court,” the jurist said. “No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”
Whitehouse told Roberts Tuesday that the justice’s comments track closely to legal arguments made by subjects in the Senate Judiciary Committee’s ongoing investigation into unethical conduct at the high court — including Leonard Leo — in order to rebuff information requests from the panel.
The timing of the interview “suggests that its release was coordinated” with efforts to block the judiciary committee’s inquiry, Whitehouse said.
“On the Senate Judiciary Committee, we have heard in every recent confirmation hearing that it would be improper to express opinions on matters that might come before the Court,” he wrote. “In this instance, Justice Alito expressed an opinion on a matter that could well come before the Court.”
Alito’s comments run afoul of U.S. judicial canon and an April statement of ethical principles and practices signed by all nine justices, Whitehouse added.
The Rhode Island Democrat requested that Chief Justice Roberts or the U.S. Judicial Conference “take whatever steps are necessary to investigate this affair and provide the public with prompt and trustworthy answers.”
Whitehouse’s legislation, if made law, would require the Supreme Court to formally adopt a code of ethics; the high court is currently not bound by any such document. The new ethical standards would need to be made available for public comment.
In addition to mandating an ethical code, the measure would create a review board of federal jurists through which anyone could submit ethics complaints against Supreme Court justices.
Congressional Republicans have painted Democrats’ effort as a reaction to the high court’s current conservative supermajority.
South Carolina Senator Lindsey Graham decried Whitehouse’s bill in July as an attempt to “create a situation where conservative judges can be disqualified by statute and to rearrange the makeup of how the court governs itself.”
Democrats, though, say Supreme Court ethics are a necessary step amid revelations that several justices, including Justice Clarence Thomas and Justice Sonia Sotomayor, have engaged in ethically dubious conduct in recent years. Thomas has become a centerpiece in the high court’s ethics fight, as news has emerged that the jurist failed to report dozens of high-dollar vacations and other gifts lavished on him by wealthy benefactors.
Whitehouse’s bill, meanwhile, narrowly cleared the Senate’s judiciary panel on an 11-10 party line vote in July.
The full Senate is expected to take up the bill in the fall legislative session — although the jury is still out on whether Democrats will be able to ram the measure through Congress.
Follow @BenjaminSWeiss
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