Democrats on the Senate Judiciary Committee spent a hearing Tuesday making the case for legislation that would put the Supreme Court under an ethics code if the justices didn’t do so themselves, but witnesses were split as to whether Congress has the power to do so.
The backers of proposed bills argued that the justices have waited for too long to impose their own ethics code, exemplified by recent reports about undisclosed luxury trips and a real estate transaction Justice Clarence Thomas received from a billionaire GOP donor.
Amanda Frost, a University of Virginia Law School professor, testified that the Constitution is silent about the internal workings of the Supreme Court and instead left it to Congress to establish the court’s size, budget and rules like a quorum.
Frost said that Congress has legislated rules for the court since the 1790s, including the oath of office justices take, and that would include an ethics code.
“To claim Congress lacks that authority is to ignore the Constitution’s text and structure,” Frost said.
Democrats on the panel argued Congress has a responsibility to step in. Sen. Sheldon Whitehouse, D-R.I., a sponsor of one of the bills debated Tuesday, said justices appointed by presidents of both parties have run into problems which the Supreme Court has not fixed.
“Until there is an honest ethics process at the court, these messes will continue,” Whitehouse said.
[Related: Senate Democrats press on Clarence Thomas ethics concerns]
Constitutional concerns
Republicans on the panel and two of the witnesses criticized the constitutionality of Whitehouse’s and other proposals, particularly over how to enforce an ethics code on the highest court in the nation.
Thomas H. Dupree Jr., a partner at the Gibson, Dunn & Crutcher law firm, criticized proposed bills for mandating the court take steps akin to rule-making in the executive branch. Dupree said mandating speech by the justices or setting up lower-court judges to preside over ethics concerns would violate the separation of powers.
“You can’t constitutionally have a system where Congress vests superior authority over the United States Supreme Court,” Dupree said.
Dupree said that system would create the incentive for litigants to file their own ethics complaints and “pick off” justices they think would rule against them.
Michael B. Mukasey, a former federal district judge who was an attorney general during the George W. Bush administration, argued Congress has no role in setting ethics rules for the Supreme Court and subjecting it to rules from another branch of government.
Mukasey said setting rules like an oath of office is one thing but “prescribing the way in which the court administers its business internally is something else.”
And Mukasey said the current Ethics in Government Act, which requires annual financial disclosures for justices and judges, would not hold up under court scrutiny.
Sen. Thom Tillis, R-N.C., said creating an ethics code for the court may create a “cottage industry” of advocates filing ethics complaints in cases strategically, making it “ripe for seeding the field with politicization of the Supreme Court.”
Tillis said he could not imagine the Founding Fathers supporting such a check on the justices.
“That seems to be far afield from anything the Founding Fathers would have considered appropriate,” Tillis said.
Legislation pending
The hearing comes in the wake of reports last month about Thomas’ financial relationship with Harlan Crow, which included decades of luxury trips and a real estate sale that were not disclosed on paperwork that is required for all federal judges.
Thomas defended his decision not to disclose the trips, casting Crow as a longtime friend.
[Related: Clarence Thomas responds to criticism of undisclosed travel]
Facing calls from fellow Democrats and outside advocates to investigate the allegations against Thomas, panel Chair Richard J. Durbin, D-Ill., has focused his response on broader concerns about ethical standards at the court.
“The Supreme Court should step up and fix this themselves and for years they refused,” Durbin said Tuesday.
Last week, Chief Justice John G. Roberts Jr. declined an invitation from Durbin to testify at the hearing, and instead provided a copy of the current “Statement of Ethics Principles and Practices” signed by all the current justices.
[Related: Chief justice declines Senate invitation to testify about ethics]
In response to questions from Durbin and other Democrats on the panel, Roberts provided a second letter Monday. The letter stated the court has unanimously amended its statement of ethical principles several times since the 1990s and that the Judicial Conference’s Committee on Financial Disclosure may handle concerns about a justice’s ethical decisions.
On Tuesday Durbin leaned on long-term concerns about the lack of ethics standards at the court, trying to defray criticism that Democrats have been motivated by animus against Thomas.
Democrats highlighted legislation from Whitehouse, as well as a bipartisan proposal from Sens. Angus King, I-Maine, and Lisa Murkowski, R-Alaska, to have the court adopt its own ethics standards.
[Related: Push for Supreme Court ethics code gets bipartisan boost]
Republican opposition
However, that was met with uniform opposition from Republicans on the panel.
Sen. Lindsey Graham of South Carolina, the top Republican on the committee, said he would oppose any effort by Congress to legislate ethical rules for the Supreme Court and called Democrats’ concerns part of a “concentrated effort” to undermine the court more broadly.
“What I would urge the court to do, take this moment to instill more public confidence” on its own, Graham said.
Sen. John Kennedy, R-La., drew parallels between Tuesday’s hearing and Democrats’ opposition to Judge Robert Bork’s failed Supreme Court nomination in the 1980s, the “high-tech lynching” of Thomas during his initial confirmation and opposition to recent Republican-appointed justices.
“Today’s hearing is an excuse to sling more mud at an institution that some, not all, Democrats are upset they cannot control all the time,” Kennedy said.
In a floor speech Tuesday, Senate Minority Leader Mitch McConnell, R-Ky., tied Democrats’ concerns to decades of dissatisfaction with Republican judges.
“Every five minutes the Democratic Party wants to give lectures about upholding our institution and protecting democracy but then they take a new way at a reckless attack of the court and the rule of law,” McConnell said.
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