Bitter partisan debates between Democrats and Republicans on the Senate Judiciary panel fueled a hearing on Supreme Court ethics Tuesday.
While members heard testimony from a variety of witnesses ranging from judicial ethics experts to a former attorney general in the George W. Bush administration, the lawmakers used their questioning to reinforce their own arguments. Democrats argued in favor of ethical guidelines that the Supreme Court must follow while Republicans countered that the current push to enforce ethics is because liberals aren't pleased with the recent decisions of a conservative leaning Supreme Court.
Absent from Tuesday's hearing are the central players in the current drama over high court ethics — no member of the court testified.
Chief Justice John Roberts last week declined the committee's invitation to testify, citing "separation of powers concerns and the importance of preserving Judicial independence." Rather, he released a short letter to that effect, accompanied by a joint statement from all nine current justices reaffirming, apparently for the first time publicly, their voluntary adherence to the code of conduct that applies to lower federal court judges.
At the same time, however, the nine essentially insisted that because they are the Supreme Court, and thus different from other courts, they must remain ultimately independent from congressional oversight or mandatory rules. And, they cited a variety of their exceptions to the rules followed by lower court judges.
Republican senators speaking at the hearing on Tuesday said that while they are concerned about Supreme Court ethics, the current efforts by the Democratic-led Senate to force the court to abide by an ethics code is "selective outrage" to destroy a conservative court. Six of the nine justices currently serving on the Supreme Court were nominated by a Republican president, including three by former President Donald Trump.
"Today's hearing is an excuse to sling more mud at an institution that some – not all – some Democrats don't like because they can't control it 100% of the time," Republican Sen. John Kennedy of Louisiana said. "Until they get the outcome they want in every case I fear they are going to continue to slander it in an effort to take control of it. And I pray to God I am wrong."
Senate Judiciary Committee Chairman Sen. Dick Durbin, D-Ill., rejected that assessment saying that he wrote the chief justice more than a decade ago, urging the Supreme Court to adopt a code of conduct.
"The Supreme Court could step up and fix this themselves. For years, they have refused. And because the court will not act, Congress must," Durbin said at the hearing on Tuesday.
The witnesses, chosen by Democrats and Republicans on the panel, found common ground when discussing whether the appearance of a conflict of interest can undermine public confidence in the impartiality of judges.
Jeremy Fogel, a former U.S. District Judge for the Northern District of California, said that a code of conduct, which applies to U.S. district and circuit courts, discourages even the appearance of a conflict of interest because people affected by a judge's decision would "suspect that it's not a fair decision."
Michael Mukasey, a former U.S. District Judge for the Southern District of New York and attorney general under former President George W. Bush, agreed with Fogel's assessment, even when it comes to Supreme Court justices, adding that anyone who makes allegations against a judge needs to provide context to the alleged impropriety.
"I think if you allege, in particular as to a particular Supreme Court Justice, that there is an appearance of a conflict or an appearance of impropriety, you have some obligation to articulate what it is," Mukasey said.
A stream of disclosures about the justices
Even as Roberts' letter to Durbin was released last week, news reports continued to disclose more new information about the conduct of some justices — conduct that ranged from flat-out defiance of financial disclosure rules, to allegations that some court critics imply are shady, and others see as perfectly proper.
Ethics experts continue to see the behavior of Justice Clarence Thomas as the most problematic on several fronts. Most recently, ProPublica disclosed that Republican megadonor Harlan Crow had for decades treated Thomas and his wife to free jet travel, yacht trips and other lavish vacations at which Thomas often intermingled with corporate leaders and political operators. Most importantly, Thomas did not disclose any of this on his financial disclosure forms, not did he disclose that Crow had purchased three properties in Georgia from Thomas, including one in which Thomas' mother lives.
Thomas ultimately blamed bad advice for these omissions. In a written statement he said that he had been advised by colleagues and others when he first came on the court that gifts from personal friends did not have to be disclosed. And he pledged to disclose them in the future.
Other information followed about other justices, though not in the same league as the Thomas revelations.
Last week, Politico reported that Justice Neil Gorsuch didn't disclose the identity of the person who bought a $1.8 million property from him in Colorado. Gorsuch reported the transaction but not the identity of buyer, who turned out to be the head of a law firm that routinely has multiple cases before the Supreme Court.
This past weekend, Business Insider reported that Chief Justice John Roberts' wife, Jane, made more than $10 million over a period of seven years as a headhunter recruiting and placing lawyers in law firms.
And on Sunday, The New York Times devoted a two-page spread to an account of how the Antonin Scalia School of Law at George Mason University upped its national ratings, in part by luring four conservative justices — Gorsuch, Thomas, Brett Kavanaugh and Amy Coney Barrett — to teach at the Northern Virginia campus and during summers at flossy European tourist meccas, for which they were all paid.
Nothing to see here?
The Times story, like some of the others, is indicative of the problem facing the court. Nothing disclosed in the story is illegal or improper under the code of conduct, though University of Virginia law professor Amanda Frost concedes that she finds the paid summer gigs are "somewhat troubling," in their appearance. But at the same time, she notes that under the code of conduct, judges are expressly encouraged to teach and engage with academia and other in the community writ large. The question, she asks, is why it has to be at a beautiful and sometimes lavish European site.
As for the story about the chief justice's wife's employment as a legal recruiter, Frost, and NYU ethics professor Stephen Gillers say Jane Roberts did "nothing wrong." The code of conduct explicitly allows spouses to have separate and sometimes very profitable employment. And just because Ms. Roberts places people in law firms, even firms that have business before the Supreme Court, that does not amount to a conflict of interest.
As Frost observes, the appellate bar is a relatively small and "very clubby" group of people. Indeed, Supreme Court law clerks often maintain lifetime relationships with the justices for whom they clerked. Though they are forbidden to practice before the court for two years after leaving their clerkship, many of them become frequent advocates before the court after that, and on very rare occasion, a justice may slip up and call the counsel at the lectern by his or her first name. And yet, it is also worth noting that regular Supreme Court advocates can cite you chapter and verse of the times they lost the vote of a one-time boss, or won a vote unexpectedly.
Eroding public trust in the court
Which brings us to the current state of affairs. It is not any one of the recent disclosures that has sent the court's reputation into something of a tailspin. It is the cumulative effect — from the Thomas revelations, which ethics experts think is quite distinct--to the sum total of all the other stuff. What's more, until there is some basic change, the press will continue to treat the court in just the way it treats the other branches of government. That said, at least the other branches have rules that they agree they are supposed to abide by, without exception.
In the aftermath of the unprecedented leak in the abortion case, the failure to find who did it, and an increasing drumbeat of stories about the justices' outside activities and financial disclosures or failures to disclose, the court still seems wedded to the position it has always taken in recent years: Nothing is broken. We are doing our best. When we make mistakes, we can amend our financial disclosure forms and we do.
University of Texas law professor Stephen Vladeck argues that "the media is serving as a de facto inspector general. And when justices are amending their prior financial disclosure statements in response to these media reports, it's hard to just wave our hands and say 'there's nothing to see here.'"
After years of defending Supreme Court ethics, specialists in the field tend to have less tolerance these days. For instance, the court argues that it's different from the lower courts because if one of its members recuses from a case, there could be a 4-to-4 tie, whereas in the lower courts, a different judge can easily be substituted.
The case for a code of conduct
NYU's Gillers finds that excuse laughable. After all, he notes, the Republican Senate blocked confirmation of President Obama's nominee to the Supreme Court, Judge Merrick Garland, leaving the court with just eight justices for almost a year, "and the sky didn't fall."
He maintains that, using the current code of conduct for U.S. judges as a guide, the high court "in half a day" could write a code for the justices that recognizes the court's unique role. Yes, he agrees, there may be a 4-4 tie on rare occasions, but that is "much less harmful than the harm from the absence of a code of conduct for the court."
And he says, the judicial conference, which sets out the rules for all judges on financial disclosures has to do a better job of explaining when gifts and personal hospitality need to be disclosed or need not be disclosed. The current debate, he contends, is focused on disclosure of hospitality but "the greater problem is that there is no dollar limit on the value of personal hospitality, thus allowing a billionaire host to bestow on a justice" or any federal judge gifts without limit.
Gabe Roth of the court watchdog group Fix the Court has long pushed for a law requiring the justices to write their own code of conduct, and there are several such proposals in the Senate and House right now, including one with a lead Republican cosponsor, Lisa Murkowski of Alaska. But with the filibuster in the Senate and the House in Republican hands, there is little likelihood that any of these proposals will pass.
Roth notes that in the months after Justice Abe Fortas resigned over an outside income scandal in 1969, the other justices filed reports on outside income and gifts. In contrast, Roth says, today the justice have "offered no such equivalent fix." Justice Thomas, he added, has "time and again failed to file accurate disclosure reports — concerning his wife's jobs, a missing real estate transaction and missing reimbursements. These are violations of the Ethics in Government Act, and simply asking for an amendment for the umpteenth time doesn't cut it."
-- Padmananda Rama contributed to this story.
