Democrats Call for New Supreme Court Ethics Rule Amid Clarence Thomas Scandal – Senate Democrats urged tougher regulations on the nine justices on Tuesday, claiming that the US Supreme Court had “the lowest ethical standards” of any court in the country, but were met with resistance from Republicans who accused them of being disgruntled over recent conservative verdicts.
Following a series of media reports on entanglements between two of the court’s conservative justices and parties with interests in its cases, Democrats convened a Senate judiciary committee hearing. Clarence Thomas accepted luxury travel and a real estate deal from Republican mega-donor Harlan Crow, while Neil Gorsuch sold a property to a law firm CEO with pending litigation before the court. Both were interactions between the two justices that were not fully disclosed.
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.”
Republicans, on the other hand, see the Democrats’ calls for Thomas to be investigated and the court to accept stricter ethics regulations as nothing more than sour grapes. Last year, the Supreme Court’s six conservative justices issued decisions that upended American life by overturning the precedent established by Roe v Wade to allow states to ban abortion, expanding Americans’ ability to carry concealed weapons without a permit, and limiting the EPA’s ability to regulate power plant emissions.
Lindsey Graham, the panel’s top Republican, pointed to previous rulings to claim that Democrats were merely attempting to destabilize 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 asked Chief Justice John Roberts to the meeting, but he rejected, 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 claim that the country’s nine highest justices lack equivalent ethics regulations to other judges or even many federal employees, and they have sponsored two pieces of legislation to establish a code of conduct and other obligations. Neither measure looks to have a chance in this Congress, since Republicans control the House and may use the filibuster to stop 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 man chose to testify. Instead, Democrats heard from invited legal professors who unanimously agreed that Congress has the authority to impose a rule of conduct on the Supreme Court if they so desired. Meanwhile, experts invited by the Republican minority said Congress lacked the authority to impose a code of conduct on the Supreme Court and downplayed the gravity 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”.