WASHINGTON – Senate Democrats leaned into what they described as the “ethical shortcomings” of the Supreme Court on Wednesday and called on justices to overhaul practices before they wrap up their current term this month.
The hearing was the third members of the Senate Judiciary Committee have held on Supreme Court ethics in recent weeks following revelations that Justice Clarence Thomas had accepted luxury travel from GOP megadonor Harlan Crow.
“Let’s not have another summer of justices jetting off for luxury junkets under an inadequate set of ethics rules,” Senate Judiciary Committee Chairman Dick Durbin, D-Ill., said.
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Responding to Chief Justice John Roberts
The hearing was ostensibly focused on a proposal that would require the court to adopt a code of conduct and create a process for submitting ethics complaints. But several members of the committee also eagerly responded to remarks last month from Chief Justice John Roberts in which he acknowledged that the ethics debate is an “issue of concern inside the court.”
“The American people are tired of waiting,” said Sen. Sheldon Whitehouse, D-R.I. “If the Supreme Court isn’t going to do anything to restore the public’s trust then it’s up to us in Congress.”
The back-and-forth followed a series of stories in ProPublica this year that revealed private jet trips and luxury yacht travel that Thomas accepted from Crow. Crow also purchased property from Thomas and his family – none of which was reported on annual disclosure forms.
Legislation to change court’s ethics standards faces long odds
Despite several proposals percolating in Congress, there is little Republican support for changing practices at the Supreme Court. Even if the measures were approved in the Senate, those bills would likely fail in the Republican-controlled House. No Republican senators spoke at the Judiciary hearing Wednesday.
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Roberts has raised separation of powers concerns with the notion of Congress imposing a code of ethics on the court, though that argument appears has divided legal experts who note lawmakers has previously passed laws directing the court’s procedures.
Jennifer Mascott, a law professor at George Mason University, told the committee that Congress “has had a practice of leaving the courts with significant discretion in regulating procedure and also administration of their own affairs.” Pressed on whether Congress has the power to approve legislation to require a Supreme Court code of ethics, Mascott didn’t answer directly.
Two other experts testifying, James Sample, a law professor at Hofstra University, and Donald Sherman, chief counsel at the Citizens for Responsibility & Ethics in Washington, said that it did.
Lawmakers tout Justice Elena Kagan’s recusal explanations
Durbin called attention to one subtle development that has been followed closely by court watchers: Justice Elena Kagan has twice in recent weeks explained her recusal in decisions about whether to grant or deny an appeal. In both instances Kagan cited a provision of the law that requires jurists to recuse if they had prior involvement in the case on behalf of the government.
Kagan served as the solicitor general, representing the federal government during the Obama administration.
But the Supreme Court has declined to answer questions about whether those explanations represent a policy change applied to all justices, or just Kagan acting on her own. Justice Sam Alito recused in another case last month and did not explain his reasoning.
“She gets it,” Durbin said of Kagan. “She understands that when the American people understand her thought process, it lends credibility to her final result.”
