WASHINGTON (CN) — Months of Democratic frustration about what they say is ethically dubious conduct on the Supreme Court culminated Thursday with some traction on a bill that would force the justices to adopt formal ethical standards.
Rhode Island Senator Sheldon Whitehouse’s measure cleared the Senate Judiciary Committee on a 11-10 vote split strictly along party lines amid the complaints of Senate Republicans. Addressing the committee, Whitehouse framed his bill as a long-overdue check on what Democrats and some legal experts see as lax ethical standards for the country's top judicial authority.
“We are here because the highest court in the land has the lowest standard of ethics anywhere in the federal government,” the Rhode Island Democrat said. “Justices have exhibited much improper behavior, not least the hapless efforts to excuse their misdeeds. This cannot go on.”
A whirlwind of revelations in recent months about vacations, lodging and other gifts lavished on the high court’s justices has sparked controversy about ethical standards at the Supreme Court — which currently has no formalized ethics code. Senate Democrats, led by Illinois Senator Dick Durbin, petitioned Chief Justice John Roberts in April to support such standards for his colleagues, but after he declined, lawmakers vowed to take matters into their own hands.
“This legislation will be a crucial first step in restoring confidence in the court, after a steady stream of reports of justices’ ethical failures has been released to the public,” said Durbin, who chairs the Judiciary Committee, during opening remarks. “Public support for the Supreme Court is at an all-time low.”
If made law, Whitehouse’s Supreme Court Ethics, Recusal and Transparency Act would, among other things, mandate that the high court adopt a code of ethical conduct. The process of developing such standards, the measure says, should be open for public review and input. The bill would also establish an investigative board, composed of federal judges, that would analyze ethics complaints against Supreme Court justices.
Senate Republicans, meanwhile, pounded the table Wednesday about the proposed ethics legislation, claiming that the bill is part of an effort by Democrats to discredit the high court’s conservative supermajority.
“The bottom line is that this is a bill not designed to make the court stronger and more ethical,” said South Carolina Senator Lindsey Graham, the judiciary panel’s ranking member. “It is a bill to destroy a conservative court, to create a situation where conservative judges can be disqualified by stature and to rearrange the makeup of how the court governs itself.”
Graham also rehashed an argument that has become a clarion call among Republicans opposing Supreme Court ethics reform efforts: that Democrats are hoping to add seats to the high court dais and appoint liberal justices. “It is clear that there’s an effort by the left to expand the court,” he claimed.
As written, Whitehouse’s bill would not expand the size of the Supreme Court.
Although Democrats hold a majority on the Senate’s judiciary panel and in the full chamber, Republicans sowed seeds of doubt that the ethics legislation would ever make its way out of Congress.
“They don’t have the votes,” said Louisiana Senator John Kennedy, who called the bill “dead as fried chicken” in the Senate and in the GOP-led House.
Despite that, Democrats celebrated the bill’s passage in committee Wednesday.
“Americans deserve to know Supreme Court Justices are serving the public — and not their personal — interest,” tweeted California Senator Alex Padilla, who sits on the judiciary panel. “If the Court refuses to hold themselves accountable, Congress will.”
“It’s time for Supreme Court Justice to be held to ethical standards, just like any other judge or federal official,” said Michigan Senator Debbie Stabenow.
Although Democrats made headway Thursday in their quest to take the Supreme Court to task, at least one expert argued this week that a formal code of ethics is not a silver bullet.
“We’re far past the point where a Supreme Court ethics code is enough to fix what ails the institution,” Gabe Roth, executive director of high court advocacy group Fix the Court, said in a statement Wednesday evening. “We need new gift and travel rules, a process for filing complaints against the justices and more transparency around recusals.”
Carl Tobias, chair of the University of Richmond School of Law, said he was skeptical that Whitehouse's bill could clear the full Senate in its current form.
"I see little prospect of Senate passage without some and perhaps significant changes," Tobias observed, adding that Chief Justice Roberts could take up Democrats' request and force the high court justices to adhere to the same disclosure and conflict of interest standards as lower court judges.
It's a position Roberts has been reluctant to take. The chief justice has argued that the Supreme Court need not be held to the same standards as lower federal courts. As a compromise, Roberts in April sent Durbin a statement of ethical principles signed by all nine justices.
Opponents of ethics reform have also argued that congressional action to force the Supreme Court’s hand on the subject would run afoul of constitutional separation of powers doctrine. Some experts have said, however, that Congress already regulated the size and budget of the high court, among other things, and that Whitehouse’s proposed bill would not prevent the Supreme Court from making independent decisions.
Reports have trickled out in recent months about the ethical conduct of Supreme Court justices — most notably Clarence Thomas, who received luxury vacations and other gifts from conservative megadonor Harlan Crow. Thomas in April issued a rare public statement contending that he had consulted with court staff and fellow justices who said he would not need to disclose what he framed as a friend’s hospitality.
Justices Samuel Alito and Sonia Sotomayor have also since been implicated in ethically questionable conduct.
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