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Saturday, December 2, 2023
Dec. 2, 2023

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Senate panel to vote on Supreme Court code of ethics mandate


The Senate Judiciary Committee is planning a Thursday vote on a bill that would require the Supreme Court to adopt a code of ethics, but the legislation is expected to fall short of becoming law amid strong Republican opposition.

The panel vote comes after months of scrutiny on the court following reports that justices didn’t report gifts and property sales, and, in one case, whose staff pushed for sales of a justice’s book. Democrats say the measure is needed to establish a basic code of ethics for the court amid a debate about the status of an institution where six Republican appointees have a firm majority.

In a floor speech last week, Sen. Sheldon Whitehouse, D-R.I., the bill sponsor, said the justices’ behavior has tanked their public perception and called Thursday’s planned vote an important step in the process of restoring it.

“Today, in the court that dark money built, the honor system has flagrantly failed. We need to legislate, we need to investigate and we need to fix this mess for the American people,” Whitehouse said.

Whitehouse’s measure would direct the court to adopt a code of conduct and set recusal standards for justices, as well as set transparency provisions for amicus briefs filed with the court, and other provisions. Versions of the bill have been introduced in the last several Congresses and met near-unanimous opposition from Republicans each time.

Sen. Lindsey Graham, R-S.C., the Senate Judiciary ranking member, framed Thursday’s vote as part of a broader attack by Democrats on the court’s legitimacy. He said Congress shouldn’t dictate the court’s ethical standards.

“It’s up to them. They’re a separate branch. Let them fix it,” Graham said in an interview.

Ethics push

Democrats have tried, unsuccessfully so far, to persuade colleagues to back legislative changes in the three months since ProPublica reported on Justice Clarence Thomas’ undisclosed gifts and trips from billionaire donor Harlan Crow. The bill would require the court to set disclosure rules at least as rigorous as those for the House and Senate.

Outside advocates, such as Gabe Roth, the executive director of the group Fix the Court, say the vote could be a wakeup call to Chief Justice John G. Roberts Jr., and the Judicial Conference of the United States, which governs all federal judges.

“The big takeaway for me is this is going to be the first time such a comprehensive Supreme Court ethics bill has passed the Senate Judiciary Committee in 50 years, if not ever,” Roth said.

The House Judiciary Committee advanced a similar bill on a partisan basis last year, when Democrats controlled the chamber. The sponsor of that measure, Rep. Hank Johnson, D-Ga., said Thursday’s Senate committee vote would be a good marker for the broader effort to pass ethics legislation even if it doesn’t happen this Congress.

Johnson said Republicans have turned a blind eye to the activities of the justices when they’ve ruled in favor of conservative priorities.

“The Republicans shaped the Supreme Court into what it is. And so there’s nothing, there’s no wrong that the Supreme Court can do it at this point,” Johnson said in an interview.

The effort to push ethics legislation could also play a role in coming Senate races, according to a poll released Wednesday by the Progressive Change Institute. The poll found about 60 percent of voters said they were more likely to support 2024 Senate candidates who backed ethics legislation for the court.

Republican opposition

Although Sen. Lisa Murkowski, R-Alaska, co-sponsored a narrow bill introduced in April by Sen. Angus King, I-Maine, and focused on an ethics code, Republican leaders in both chambers have opposed legislation on the Supreme Court.

In a Washington Post op-ed last week, Senate Minority Leader Mitch McConnell, R-Ky., painted ethical concerns as part of a broader attack on the court. McConnell and others have called Democrats spoilsports for attacking the court when they disagree with its rulings.

“Democrats have moved from complaining about the Supreme Court’s reasoning to questioning its independence,” McConnell wrote.

House Speaker Kevin McCarthy, R-Calif., said in a press conference last week that “I think the Supreme Court, with three separate branches of government, has the ability to oversee themselves.”

Republican members of the Senate Judiciary Committee are expected to oppose the bill Thursday and a group of them plan a press conference Wednesday on what Graham called the “Democrats’ attempts to destroy the Supreme Court.”

Democrats say Congress has the power to dictate the court’s ethical standards. Sen. Chris Coons, D-Del., pointed to a law that imposed new stock transaction reporting standards on both federal judges and justices.

“It’s been implemented. At the time, no one said that we didn’t have the power to do so,” Coons said.

Other avenues

Republicans similarly opposed an appropriations amendment on the draft fiscal 2024 Financial Services and General Government bill from Sen. Chris Van Hollen, D-Md., that would withhold $10 million from the court’s funding until Roberts certifies the justices have adopted an ethics code.

Van Hollen said the justices should have the same standards as other federal judges.

“The lower courts have codes of ethics, and there’s no reason that the highest court in the land should have the lowest ethical standards when it comes to having a code of conduct,” Van Hollen said during a markup last week.

Sen. Bill Hagerty, R-Tenn., called the amendment a poison pill and claimed that forcing the court to adopt an ethics code was part of a broader effort by Democrats to attack a court that has ruled in ways they don’t like.

“Fundamentally, I just don’t believe that Congress should dictate to a co-equal branch of government how to conduct its internal operations,” Hagerty said.

A few weeks before the ProPublica story on Thomas appeared in April, the Judicial Conference adopted a new reporting rule that would cover some of the travel Thomas received from Crow. Although some Republicans have softened their defense of the justices in the wake of reports about other undisclosed gifts, they have pointed to that rule change as evidence that Congress doesn’t need to be involved.

“I think Democrats are pushing this because they’re trying to delegitimize the conservative court on multiple fronts, is it just one front, but having said that, there’s some activity by justices that I, the public, finds over the top, but the person that fixes that is Roberts, not the Senate,” Graham said.

Roth said that Republican opposition may mean the proposal doesn’t become law, but can still make the justices think twice about the status quo.

“I think this is absolutely an opportunity to continue to put pressure on the decision makers in the third branch when it’s pretty clear that this bill will not become law between now and January 3, 2025,” Roth said.

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