Senate Judiciary Chair Richard J. Durbin took the exceedingly rare step Thursday of inviting Chief Justice John G. Roberts Jr. to testify about Supreme Court ethics rules at a hearing set for next month.
In a letter, Durbin said Roberts, or any other justice the chief justice selects, can appear before the panel on May 2 about “the ethical rules that govern the Justices of the Supreme Court and potential reforms to those rules.”
“The time has come for a new public conversation on ways to restore confidence in the Court’s ethical standards. I invite you to join it,” the Illinois Democrat wrote.
The move comes after recent reports that Justice Clarence Thomas did not disclose luxury trips or a real estate transaction with billionaire GOP donor Harlan Crow, which unleashed a firestorm of criticism from Democratic lawmakers and urges from advocacy groups for the Senate to act. Thomas issued his own response to the report on trips.
Durbin previously had said the committee would hold a hearing “regarding the need to restore confidence in the Supreme Court’s ethical standards.” And he and other Senate Democrats wrote a letter to Roberts that urged the chief justice to address the reports about Thomas.
Some congressional Democrats have called for Thomas to resign or for Congress to pass tougher ethics rules for the high court—neither of which appears likely to happen.
The letter inviting Roberts could lead to an unusual showdown between two branches of government. It’s rare for Supreme Court justices to testify before Congress voluntarily, and they typically only do so related to the high court’s budget request.
But it seems unlikely Durbin or the Judiciary Committee would force the issue with a subpoena, in part because of the continued absence of Sen. Dianne Feinstein, D-Calif., from her post on the committee.
Senate rules require subpoenas receive the approval of the majority of a committee. Feinstein has not voted since February and Republicans blocked efforts Tuesday to temporarily replace her on the panel. Durbin told reporters Wednesday the committee may not be able to pursue information from Thomas without a subpoena.
“It’s very difficult for us. A subpoena requires a majority,” Durbin said.
In the letter, Durbin points out that justices last testified before the Senate Judiciary Committee in October 2011, “and that hearing included robust exchanges about the Court’s approach to ethics matters.”
“The opportunity for the American people to hear from Justices in this setting presents a moment that could strengthen faith in our public institutions,” Durbin wrote.
The Supreme Court did not immediately respond to an inquiry seeking comment about Durbin’s invitation.
Sen. Sheldon Whitehouse, D-R.I., who chairs the Senate Judiciary Committee’s subcommittee on the federal courts, sent a letter along with Rep. Hank Johnson, D-Ga., who is the ranking member of the House’s equivalent panel, asking the Judicial Conference to refer Thomas’ actions to Attorney General Merrick Garland for investigation.
In a floor speech Tuesday, Whitehouse called for passage of legislation.
“The justices have lost the benefit of the doubt. For 240 years the court went without needing this, but this Roberts Court has squandered the public’s confidence with its behavior and now there must be rules and process,” Whitehouse said.
Republicans are unlikely to help a probe into Thomas, as Senate Minority Leader Mitch McConnell, R-Ky., told reporters he backed Roberts in handling the matter.
“I have total confidence in the chief justice of the United States to deal with these court internal issues,” McConnell said.
Republicans who control the House have displayed no appetite for actions looking into Thomas’ relationship with Crow, frequently referring to the allegations as putting a “double standard” on a conservative justice, or legislation on ethical issues more broadly.
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