Steve Benen reports, Senate Republicans flub an easy test on Supreme Court ethics:
The U.S. Supreme Court was already struggling with its weakened reputation in the wake of a series of far-right rulings, but recent revelations have clearly made an unfortunate situation worse.
As regular readers know, Justice Clarence Thomas is facing an intensifying ethics mess that neither he nor his allies have been able to explain away. Another one of his far-right allies, Justice Neil Gorsuch, is now facing a separate ethics controversy of his own. Even Chief Justice John Roberts, who insists there’s no need for any kind of judicial reforms or changes to ethics laws, has faced some difficult questions of his own.
With this in mind, the Democratic majority on the Senate Judiciary Committee scheduled a hearing that seemed rather obvious: The panel and its members needed to have a conversation about Supreme Court ethics. Roberts was invited to participate in the discussion, but he refused for reasons that still don’t make sense.
The hearing happened anyway, though it was an exasperating affair. NBC News reported:
Senate Democrats at a Judiciary Committee hearing on Tuesday made the case for ethics reform at the Supreme Court, while Republicans complained that the effort is part of a campaign to delegitimize conservative justices over rulings that have angered liberals. … Sen. Dick Durbin, D-Ill., who chairs the committee, said legislative action is needed because the Supreme Court, unlike lower court judges, largely police themselves. He said the current ethical standards for Supreme Court justices are lower than they are for local city council members.
Durbin’s point had the added benefit of being true. The nation’s highest court, beset by credible questions about ethical missteps, does not have a meaningful code of conduct or a mechanism to investigate alleged misconduct. The justices — who hold lifetime positions and answer to effectively no one — are largely expected to hold themselves accountable.
Today’s hearing offered Republicans a simple opportunity to either agree with reformers or make the case in support of the status quo. For the most part, GOP senators did neither — preferring instead to rant about assorted hobbyhorses that relate to the judiciary.
Republicans talked about Robert Bork. They talked about Thomas’ confirmation hearing 32 years ago. They took a keen interest in a provocative speech Senate Majority Leader Chuck Schumer delivered three years ago, which the New York Democrat soon followed with a statement of regret.
What did any of this have to do with Supreme Court ethics and possible reforms? No one seemed to have any idea, and by all appearances, Senate Republicans were completely indifferent to the non sequiturs.
Indeed, they kept going. The Judiciary Committee’s GOP members talked about protests near justices’ homes. And progressive advocacy groups they don’t like. And death threats. Sen. Ted Cruz seemed especially animated by the idea that Thomas has been the subject of criticism because he’s a Black conservative.
Again, the point of the hearing was about possible ethics reforms to an institution that apparently needs them. Do Republicans think that’s a good idea? A bad idea? Worthwhile? Unnecessary?
At times, it was hard to tell, since the GOP members who participated in the hearing were too often eager to avoid the point of the discussion.
If the goal was to impress conservative media outlets, I’m sure the antics were a great success, and some of these senators will no doubt be making on-air appearances. Maybe their tirades will even be incorporated into their next fundraising appeals.
But observers were nevertheless left with an unsettling realization: There’s nothing inherently partisan or ideological about creating ethical standards for Supreme Court justices, but for the Republican contingent on the Senate Judiciary Committee, this is now a partisan issue for which they have little or no use.
This was an easy pass-fail test on an important issue. GOP senators flubbed it.
In a carefully worded, but blunt statement, conservative former federal judge J. Michael Luttig sent a warning shot to the Supreme Court, calling on the Court to enact a code of conduct that would “subject itself to the highest professional and ethical standards that would render the Court beyond reproach.” Leading conservative former judge warns Supreme Court it must adopt the ‘highest’ standard of ethics rules:
If the Supreme Court does not take such action, he cautioned, Congress has “the power under the Constitution” to prescribe ethical standards of conduct for the court.
The Court should not want the Congress to legislate ethical standards that would bind the Court. But the Congress indisputably has the power under the Constitution to do so.
— @judgeluttig (@judgeluttig) May 3, 2023
The statement is part of written testimony Luttig – a former judge on the US 4th Circuit Court of Appeals – has submitted to the Senate Judiciary Committee holding hearings Tuesday and follows weeks of ethical controversies involving the Supreme Court. Luttig’s public admonition is especially notable because of his conservative credentials and his longstanding, close ties with the Supreme Court.
[T]he Senate Judiciary Committee is also receiving written testimony from Harvard professor and Supreme Court litigator Lawrence Tribe, a legal luminary on the left. Together, the letters present viewpoints from the legal left and right that Congress does have the power to enact Supreme Court ethics reform. They add to the cacophony of voices from across the legal profession that are speaking out in response to what is seen as a growing legitimacy crisis at the Supreme Court. Thus far, Republican lawmakers are mostly opposed to stepping in.
Considered a conservative legal heavyweight, Luttig’s willingness to weigh in is notable. He previously made headlines for his testimony to the House select committee that investigated January 6, 2021, where he stated that former President Donald Trump had tried to overturn the election and that “Trump and his allies and supporters are a clear and present danger to American Democracy.”
Luttig writes in the new letter to the Senate that binding a code of conduct for the justices “ought not be thought of as anything more – and certainly nothing less – than the housekeeping that is necessary to maintain a Republic.” Tribe also writes that Congress had the power to enact ethics rules for the court that would address the justices’ non-judicial conduct. Both legal experts, however, take the view that while Congress can impose a code of conduct on the justices, it cannot command the Supreme Court to write one for itself.
“I am not insensitive to the delicacy of the political choices Congress would be required to make in order to decide what limits to impose on how the Justices conduct themselves with respect to accepting favors from individuals and groups with business before the Court or with interests in the outcome of that business and on how transparent Justices must be in the way they lead their lives outside the Supreme Court itself and outside the performance of its judicial tasks,” Tribe writes. But, he says, given the mandates of the Constitution, such policy choices are “one buck Congress cannot pass.”
Ethics controversies prompt Senate hearing
The Senate Judiciary Committee – led by Chairman Dick Durbin – organized Tuesday’s hearings amid a cascade of reports suggesting Thomas and other justices have engaged in conduct that at least raises the appearance of ethical impropriety.
Whether the justices, in some of the alleged behavior, violated the financial disclosure rules the Supreme Court currently follows has been a matter of public debate. But Democrats and outside court reform advocates says that the recent reporting shows that the high court needs to adopt more stringent ethical standards, and argue that if the justices refuse to do so, Congress should step in to act.
Among the allegations were bombshell reports by ProPublica laying out luxury trips Thomas took that were paid for by a GOP megadonor and went largely unreported on the justice’s financial disclosures, as well as a real estate transaction involving the donor that was also not disclosed by the justice.
Also raising eyebrows was the sale of a property co-owned by Justice Neil Gorsuch to a lawyer with a leadership role at a major firm that has had business before the court. While it appears Gorsuch met his disclosure obligations in how he reported the sale, critics says that his financial filings – which omitted the identity of the property’s buyer – show that the current rules the court follows do not ensure enough transparency.
“We cannot excuse what has been reported already about Justice Clarence Thomas. The yacht trips to Indonesia sponsored by a billionaire in Texas, the Gorsuch real estate transaction have raised serious questions about whether things went unreported,” Durbin, a Democrat from Illinois, told CNN’s John Berman on Monday.
“This sort of thing is unacceptable in every branch of our government, at every level of the courts, save the nine men and women serving on the Supreme Court,” Durbin added.
Chief Justice John Roberts turned down an invitation to appear at the hearing, and last week, released a “Statement on Ethics Principles and Practices” – signed by all nine members of the court – which the justices said they were providing to offer “new clarity” to the public.
Those finding the CJ Roberts’ April 25 Statement of Ethics Principles and Practices inadequate can’t be accused of objecting on ideological grounds: All 9 Justices signed on individually, as they’d never done since the great desegregation case of Cooper v. Aaron, 358 US 1 (1958)!
— Laurence Tribe 🇺🇦 ⚖️ (@tribelaw) April 29, 2023
The justices “consult a wide variety of authorities to address specific ethical issues,” the statement said, while emphasizing that it should be left to individual justices to decide when his or her recusal from a case was necessary. The court’s statement noted they “voluntarily” follow the annual financial disclosure requirement and gift limits that are mandated for lower court justices.
Debate over Congress’ role
Ethics proposals for the Supreme Court, as well as lower court judges, have floated around Capitol Hill for years. The latest proposal was introduced last week by Republican Alaska Sen. Lisa Murkowski and Sen. Angus King, an independent from Maine who caucuses with Democrats. It would require the Supreme Court to, within a year, to adopt a code of conduct but leaves it up to the justices to decide what that code looks like. Other Democrats are advocating for an ethics rider to be attached to the annual appropriations legislation Congress will pass to fund the federal judiciary next year.
There is not much appetite among Republicans to legislate in this space and they have focused on calls for more security, as they have bashed the lack of prosecutions by the Justice Department of demonstrators who showed up outside the justices’ homes last year to protest the court’s overturning of precedent that protected abortion rights.
“I’m not going to support any changes to laws regarding the Supreme Court, unless and until we get real protection for the justices and their families from this ongoing harassment,” [insurrectionist leader] Sen. Josh Hawley, a Missouri Republican who sits on the Judiciary Committee, told CNN last week.
With his letter to the committee, Tribe writes that ethics legislation would be “sensible” and “a necessary though probably not sufficient response to the current situation.”
Luttig, meanwhile, stops short of endorsing the position that Congress should act. Instead, he stresses that the Supreme Court should take steps on its own to ensure the public never has reason to question the ethics of the justices.
“Thus, there should never come the day when the Congress of the United States is obligated to enact laws prescribing the ethical standards applicable to the non-judicial conduct and activities of the Supreme Court of the United States, even though it indisputably has the power under the Constitution to do so, but paradoxically, does not have the power to require the Court to prescribe such standards for itself,” Luttig argues. “But if that day were ever to come, it would hardly be a constitutional crisis or anything of the sort. ”
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Justices Gorsuch and Thomas are allowed to have friends in DC and Texas — even friends in very high places like the Oval Office or corporate board rooms. But Justice Abe Fortas thought his powerful friendships were allowed too — until he crossed an invisible line where his friendships –and of course the hororarium — made him look like he had lost his impartiality as a jurist. Fortas resigned for things incredibly trivial compared to Thomas’s hundreds of thousands in benefits, over years wthout disclosures. How come these people never are friends wih middle class people who go biking, have picnics in State Parks or go rowboat fishing? Are they so naive as to think the rich and powerful want to be pals just because they are good conversationalists and are nice to little dogs and children? Thomas lies now as he did in his confirmation hearings. For all these reasons the Court’s reputation is in the toliet. Not for some imaginary stuff from Lady Lindsey or Cornyn.
The Washington Post’s Ruth Marcus writes, “The justices’ ethics are to blame for the court’s legitimacy problems”, https://www.washingtonpost.com/opinions/2023/05/02/supreme-court-ethics-clarence-thomas/
It wasn’t a “high-tech lynching” three decades ago, when the Senate Judiciary Committee considered Anita Hill’s allegations against Supreme Court nominee Clarence Thomas. And it is not a high-tech lynching for the committee to debate the ethics of now-Justice Thomas’s behavior and consider what steps are needed to address the broader issue.
But that was where the committee found itself on Tuesday [insurrection leader “Traitor”] Ted Cruz (R-Tex.) called the Thomas conversation a “shameful reprise of 1991’s high-tech lynching” and decried what he called a “political campaign designed to smear” the justice. Sen. John Cornyn (R-Tex.) actually went to the tape, as though Thomas’s volcanic testimony in 1991 was somehow relevant to the ethics issue now.
Former federal judge Michael Luttig submitted written testimony for Tuesday’s hearing, and the conservative jurist got to the heart of the matter. Justices, he wrote, must “conduct themselves in their nonjudicial conduct and activities in such a manner that they are individually deserving of respect — indeed, beyond reproach, not only in fact, but also in appearance. This, at all times and places, in both public and in private.”
Can that seriously be said of Thomas and his acceptance of lavish travel, gifts and other benefits from Republican megadonor Harlan Crow, year after year after year? The yacht. The private jet. The purchase of his mother’s home. All unreported. (Yes, the law carves out an exception from the reporting rules for lodging, meals and entertainment provided as part of personal hospitality.)
But while justices must follow rules, they also need to exercise judgment — to behave in a way that is, as Luttig said, “beyond reproach.” And here is where the jaw-dropping extent of the largesse — from a single source, from an ideological and political actor, from a man Thomas did not know before he became a justice — becomes so questionable.
Consider how Crow and his wife became, as Thomas said in a statement, “among our dearest friends.” They met on Crow’s private jet: As he told the Dallas Morning News, Crow was meeting with the conservative National Center for Policy Analysis. When officials mentioned that Thomas was speaking to the group in Dallas, Crow offered the justice a lift, since he and the jet were headed home. Other rides would follow. This is no ordinary friendship.
Republicans predictably pointed to similar, or similarly questionable, conduct, by Democratic-appointed justices. Sen. Lindsey O. Graham (S.C.) cited several incidents involving Ruth Bader Ginsburg, including the time the late justice donated to the National Organization for Women a signed copy of her majority opinion in the landmark case requiring Virginia Military Institute to admit women, which then auctioned it off at a fundraiser, as well as her receipt of an award from the Woman’s National Democratic Club.
[B]ut the Republican whataboutism doesn’t prove what Republicans think it does. They see the lack of attention to the ethical lapses of justices appointed by Democrats as evidence of an effort to “delegitimatize the Supreme Court” now that it is firmly in conservative hands. I see it as proof that the problem is systemic, and that something needs to be done — especially because the justices seem incapable of acting on their own.
Which is why it was such a shame that Tuesday’s hearing was more theatrics than theory. There are important questions about whether current financial disclosure rules need to be tightened or better enforced. There are complicated questions of constitutional law and institutional logistics about how a code of conduct would be enforced if the court were to adopt one — either voluntarily or by congressional fiat.
That is not the conversation this Senate is capable of having. Instead, Republicans insist on exhuming ancient grievances about nominations past (Robert H. Bork, Miguel Estrada, Janice Rogers Brown). They peddle false equivalencies: Other justices amended their disclosure forms — voluntarily — so it doesn’t matter that Thomas keeps messing up his and, perhaps, fixing them once exposed. Other justices took many trips and disclosed them, so it doesn’t matter that Thomas took many trips he chose not to report.
Former George W. Bush attorney general Michael Mukasey [Still a horrible individual], testifying for Republicans, warned that “the public is being asked to hallucinate misconduct so as to undermine the authority of Justices who issue rulings with which these critics disagree, and thus to undermine the authority of the rulings themselves.”
No hallucinogens required. This court is doing a bang-up job of undermining its authority, all on its own.