Arguing that the US supreme court has “the lowest ethical standards” of any court in the country, Senate Democrats on Tuesday demanded tighter rules on the nine justices but ran into resistance from Republicans who accused them of being bitter over recent conservative rulings.
Democrats had convened a hearing of the Senate judiciary committee after a series of media reports on entanglements between two of the court’s conservative justices and parties with interests in its cases. These includes Clarence Thomas’s acceptance of luxury travel and a real estate deal from Republican mega-donor Harlan Crow, and Neil Gorsuch’s sale of a property to a law firm executive with business before the court. Both were interactions the two justices did not fully disclose.
The committee’s Democratic chair Dick Durbin, a senator from Illinois, said: “We wouldn’t tolerate this from a city council member or an alderman. It falls short of the ethical standards we expect of any public servant in America. And yet the supreme court won’t even acknowledge it’s a problem.
“Ethics cannot simply be left to the discretion of the nation’s highest court. The court should have a code of conduct with clear and enforceable rules so justices and the American people know when conduct crosses the line. The highest court in the land should not have the lowest ethical standards.”
But to Republicans, the Democrats’ calls for Thomas to be investigated and for the court to accept more stringent ethics rules represent nothing more than sour grapes. Last year, the supreme court’s six conservative justices handed down decisions that upended American life by overturning the precedent established by Roe v Wade to allow states to ban abortion, expanding the ability for Americans to carry concealed weapons without a permit, and reducing the Environmental Protection Agency’s ability to regulate power plant emissions.
Lindsey Graham, the top Republican on the panel, alluded to these rulings to argue Democrats were simply trying to undermine the court’s conservative majority.
“This assault on justice Thomas is well beyond ethics. It is about trying to delegitimize a conservative court that was appointed through the traditional process,” Graham, a senator from South Carolina, said.
Durbin had invited Chief Justice John Roberts to the hearing, but he declined to attend, citing the need to keep the court separate and free from congressional interference, while sending along a “statement on ethics principles and practices” signed by all of the court’s nine justices. Federal law requires judges, including supreme court justices, recuse themselves from any matter “in which his impartiality might reasonably be questioned”, but unlike other judges and federal employees, the court has no formal ethics code.
Democrats say the nine highest judges in the country do not have ethics rules comparable to other judges or even many federal employees, and have introduced two pieces of legislation to impose a code of conduct and other requirements. Neither measure appears to have much of a chance in this Congress, where Republicans control the House of Representatives and could use the filibuster to block any legislation in the Senate.
Before the hearing began, the Democrats’ push won an endorsement from J Michael Luttig, a former appeals court judge and noted conservative legal thinker who said Congress does have the authority to establish such standards.
He wrote in a letter to the committee: “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 was joined by progressive scholar Laurence Tribe, who wrote to the committee: “I regard legislation to impose ethical norms in a binding way on the justices as eminently sensible. Put simply, I see such legislation as a necessary though probably not sufficient response to the current situation.”
Neither men opted to testify. Instead, Democrats heard from invited legal scholars who generally agreed that Congress had the power to implement a code of conduct on the supreme court, should they choose to do so. Experts invited by the Republican minority, meanwhile, said Congress did not have the power to impose a code of conduct on the supreme court, and downplayed the severity of the reports about the court’s ethics.
Michael Mukasey, a former attorney general under George W Bush, said in the hearing, said: “It’s impossible to escape the conclusion that the public is being asked to hallucinate misconduct, so as to undermine the authority of justices who issue rulings with which the critics disagree, and thus to undermine the authority of the rulings themselves.”
