Senate Democrats’ efforts to impose a code of conduct on the Supreme Court and get Chief Justice John Roberts to testify in Congress about Supreme Court ethics policies are fraught with problems, legal experts told The Epoch Times.
Congressional Democrats have responded with anger and indignation to information published in an April 6 article by ProPublica, a left-wing nonprofit funded in part by the preeminent Democratic Party donor, financier George Soros, through his Foundation to Promote Open Society. Soros has been criticized recently by conservatives for funding the election campaigns of various district attorneys who are soft on crime.
The article states that Republican donor Harlan Crow has been treating his friend, Supreme Court Justice Clarence Thomas, to luxurious vacations for years. Thomas said on April 7 that he was advised that he didn’t have to report the trips but said he'll follow new reporting requirements imposed on the federal judiciary.
Days later, it was reported that Thomas sold his mother’s home to Crow but failed to disclose the transaction, as the Ethics in Government Act of 1978 is said to require. Thomas’s mother, who’s reportedly 94, still lives in the home rent-free. Crow said he would like one day to turn the home into a museum to honor the justice, who overcame poverty and a difficult childhood to make a name for himself.
Crow described the ProPublica coverage of Thomas as “a political hit job,” but ProPublica has said that its reporters were simply doing their job.
Sen. Ron Wyden (D-Ore.) has asked for a complete list of gifts Crow has made to Thomas, CNBC reported on April 24. Wyden also asked Crow for evidence he has complied with federal tax law regarding the gifts.
Wyden, who chairs the Senate Finance Committee, reportedly said in a letter to Crow that the “unprecedented arrangement between a wealthy benefactor and a Supreme Court justice raises serious concerns related to federal and ethics laws.”
Senate Democrats Seek Testimony
Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) said he wants Roberts to appear before his committee to discuss, among other topics, the judicial ethics of Thomas.Some Democratic lawmakers have said that Congress should use the appropriations process to compel the Supreme Court to enforce ethics and disclosure rules.
Committee member Sen. Richard Blumenthal (D-Conn.) said last week that the panel should subpoena Thomas and Crow to testify. But the committee couldn’t do so immediately because it lacks an operational majority and subpoena-issuing authority at the moment because Sen. Dianne Feinstein (D-Calif.), 89, is away convalescing from shingles.
Sen. Chris Van Hollen (D-Md.), who chairs a Senate subcommittee that oversees court appropriations, said earlier in the month that it’s “unacceptable that the Supreme Court has exempted itself from the accountability that applies to all other members of our federal courts.”
Van Hollen said he would “seek to use the appropriations process to ensure that the Supreme Court adopts a code of conduct similar to that which applies to other members of the federal bench.”
Durbin said Roberts hasn’t had a “significant discussion of how Supreme Court Justices address ethical issues” since he issued a report in 2011.
“Since then, there has been a steady stream of revelations regarding Justices falling short of the ethical standards expected of other federal judges and, indeed, of public servants generally. These problems were already apparent back in 2011, and the Court’s decade-long failure to address them has contributed to a crisis of public confidence,” Durbin wrote.
“The status quo is no longer tenable. The time has come for a new public conversation on ways to restore confidence in the Court’s ethical standards.”
He has threatened to introduce legislation to force the Supreme Court to adopt a code of ethics if the court doesn’t resolve matters on its own. Such legislation would be constitutionally dubious, according to experts.
‘No Authority’
Veteran Supreme Court observer Curt Levey, president of the conservative Committee for Justice, said Wyden’s letter is a “pure PR move.”“There is absolutely no way of enforcing a letter,” Levey told The Epoch Times in an interview. “It has absolutely no authority to it.”
If Durbin were to subpoena Roberts or another Supreme Court justice, “it would set off what would be a very interesting legal battle, because the first argument one would make is separation of powers,” he said, referring to the constitutional doctrine that prevents any specific branch of the government from exercising the core functions of another.
“And it’s not clear how it would ultimately come out, I suppose, except for the fact that the Supreme Court would decide it, and the Supreme Court would probably find in its own favor,” Levey said.
He said he wasn’t aware of any precedent for Congress subpoenaing a Supreme Court justice, “but as a practical matter, it would be a hell of a legal battle ... so they’re not actually going to do it.”
Three Republican senators have said that Durbin should back off, according to The Hill.
“I would not recommend that the chief accept his invitation because it will be a circus,” said Sen. John Cornyn (R-Texas), a member of Durbin’s committee.
Another member of the Senate Judiciary Committee, Sen. Josh Hawley (R-Mo.), said Durbin “is trying to pressure the court.”
“You read the letter ... all the rhetoric ... it’s trying to turn the screws on him,” he said.
Hawley said there’s no constitutional crisis yet, but “it’s inching toward that,” and issuing a subpoena to a justice would be “a nuclear option.”
Senate Minority Whip John Thune (R-S.D.) said the Supreme Court must be left alone to deal with its own internal affairs without congressional intervention.
“They’re their own independent branch of our government. They have always set their own rules when it comes to the way they conduct themselves there. I prefer to leave it that way,” Thune said.
Levey predicts that Durbin won’t take the subpoena route; “I don’t think what Durbin is looking for is a three-year battle that will probably ultimately lose in the Supreme Court,” he said.
Congress certainly has the power of the purse, but it could run into a constitutional problem if it were to threaten to cut the Supreme Court’s budget to force the court to take action on a code of conduct for the justices, Levey said.
“Sometimes things that the government otherwise has the right to do become unlawful if tied to a condition that’s unconstitutional,” he said.
Democrats are doing all of this “to blacken the name of the Supreme Court,” according to Levey.
“It’s arguably shortsighted because the best friend they have on the court really is Roberts,” he said.
“We pretty much know how the three liberals are going to vote on hot-button issues, and we pretty much know how the five conservatives are going to vote.
Politicizing the Court
Jim Burling, vice president of legal affairs for the Pacific Legal Foundation, a national nonprofit public interest law firm that challenges government abuses, told The Epoch Times that Democratic lawmakers are participating in a “political witch hunt” to “divert attention away from their own problems.”“If anybody’s morally compromised, it’s some of the Democrats that are calling on the Supreme Court justices to mend their ways, when it’s pretty clear that neither Justice Thomas nor anybody else has violated any law,” he said.
“[The late Justice Ruth Bader Ginsburg] made technical mistakes on her filings when she was alive, and she corrected them. It was no big deal.”
Thomas received “good advice” at the time when he was told he didn’t need to disclose the gifts from Crow, according to Burling.
“I think it’s very unfortunate that certain Democrats are trying to politicize the court” and claiming that the legitimacy of the court is being called into question, he said.
“It’s all brought up by the Democrats on making mountains out of things that are less than molehills,” Burling said.
“It’s so obvious that this whole thing was orchestrated by the left ... in order to create some newsworthy events so they could once again attack Justice Thomas and the conservative members of the court. They haven’t been happy with Justice Thomas since he was nominated years ago.
“They cast all sorts of aspersions on his ability, but most conservative lawyers will tell you that he is one of the best. And Justice Thomas’s jurisprudence is consistent. It’s not something that everybody agrees with all the time, but his reasoning is clear ... and his originalism is second to none, and his opinions are wonderfully written. And I think that continues to frustrate the left because he is so competent in what he does.”
