by Ashley Murray, Georgia Recorder [This article first appeared in the Georgia Recorder, republished with permission]

June 14, 2023

WASHINGTON — Senate Democrats for the third time this year made their case that U.S. Supreme Court justices must follow stronger ethics rules, including recusing themselves from cases where they have a financial stake or other connection to a case.

The series of hearings by the Senate Committee on the Judiciary and its subcommittees came after recent revelations about Justice Clarence Thomas’ luxury travel and real estate transactions with a GOP donor.

The hearings also resurfaced concerns over Thomas’ refusal to recuse himself from decisions related to the Jan. 6 insurrection, as well as relationships previous justices maintained while on the bench.

A proposal by Rhode Island’s Sen. Sheldon Whitehouse to enhance the court’s transparency was the focus of Wednesday’s subcommittee hearing, specifically a section detailing new conflict of interest rules for Supreme Court justices and the federal judiciary at large.

The legislation would also compel the court to establish a publicly available code of conduct and an official complaint procedure, among other transparency measures including requiring minimum gift, travel and income disclosures.

“From the very first days of this republic, Congress has regulated judicial conflicts of interest to help preserve the judiciary’s integrity. Recusal and conflict laws on the books expressly apply to the Supreme Court. It’s time for Congress to step back in to fortify the administration of these laws,” Whitehouse said, referring to his proposal, titled the Supreme Court Ethics, Recusal and Transparency Act.

“My bill would end the practice of Supreme Court justices judging their own conflicts of interest,” continued Whitehouse, chair of the Subcommittee on Federal Courts, Oversight, Agency Action and Federal Rights that led the hearing.

Subcommittee ranking member John Kennedy of Louisiana did not attend the hearing because of a scheduling conflict, according to Whitehouse. No GOP members spoke or questioned witnesses.

Separation of powers

Skeptics of Whitehouse’s proposal expressed concern about the separation of powers and a risk of political interference that could be created by new rules.

Jennifer Mascott, assistant professor of law at George Mason University’s Antonin Scalia Law School, argued that the Constitution does not grant Congress “unbounded authority” to regulate all actions of justices and federal judges.

Some provisions outlined in Whitehouse’s bill, including the public comment and complaint processes, “may create tension with the notion of an impartial judiciary that’s set aside from the political process,” Mascott testified.

Senate Democrats and two other witnesses argued that the Supreme Court is already subject to laws created and passed by Congress, including judicial procedures outlined in Title 28 of the U.S. Code that state “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

But because justices themselves decide when or when not to recuse themselves, “the results of such a system are inconsistent,” argued James J. Sample, law professor at Hofstra University’s Maurice A. Deane School of Law.

“In analogous circumstances, some justices recuse while others do not,” Sample testified.

Sample championed Whitehouse’s bill, citing the provision that federal judges presented with a recusal motion would either recuse themselves or turn to a panel of randomly selected peers to decide, while fellow members of the Supreme Court would serve as the panel deciding on the motion for a fellow justice.

“The proposed legislation before you is not top-down congressional control of granular details in a co-equal branch. On the contrary, section two of the legislation merely requires the Supreme Court to issue a code of conduct for itself within 180 days, and doing so would merely level up the Supreme Court, so as to bring the highest court in the land, more in line with the stronger standards applicable in all lower courts,” Sample said.

Old and new concerns

The latest round of attention over conduct by those sitting on the Supreme Court bench stems from reporting by the investigative outfit ProPublica that chronicled years of private jet and yacht excursions on the dime of billionaire Republican donor Harlan Crow that Thomas never disclosed. ProPublica also revealed that Thomas did not disclose a real estate transaction with Crow.

Soon after the ProPublica revelations, Politico reported that Justice Neil Gorsuch did not identify the purchaser who bought a 40-acre plot in Colorado co-owned by the justice — a sale from which he made between $250,001 and $500,000, according to federal disclosure forms. The purchaser turned out to be attorney Brian Duffy of the law firm Greenberg Traurig that has since argued numerous cases in front of the court.

Reporters noted in early June that Thomas asked for and was granted an extension for his highly anticipated 2022 financial disclosure report required under the Ethics in Government Act. Justice Samuel Alito was also granted an extension.

However, another witness on Wednesday’s panel said that ideology should not drive which justices receive scrutiny. The Supreme Court currently has a conservative majority.

“The idea that these necessary reforms are political, or retaliatory is equally absurd. While we cannot dismiss Justice Thomas’ egregious ethical problems, it is also true that former Justices (Ruth Bader) Ginsburg, (Stephen) Breyer and others have heard cases where they likely should have recused,” said Donald K. Sherman, executive vice president and chief counsel for Citizens for Responsibility & Ethics in Washington, a nonprofit that has filed complaints against Thomas.

“Even more troubling, every single one of the current justices has rebuffed basic oversight and reform, arguing that we should just trust them to make their own recusal decisions, despite years of scandal at the court,” testified Sherman, who previously served as legal counsel for the U.S. House Ethics Committee.

Democratic senators on the panel repeatedly brought up Thomas’ refusal to recuse himself from decisions related to the Jan. 6, 2021 attack on the U.S. Capitol. During the attack, Thomas’ wife, Virginia Thomas, an outspoken conservative activist, texted former Trump Chief of Staff Mark Meadows encouraging him to find a way to overturn the 2020 presidential election results.

“What did Justice Thomas know about his wife’s insurrection activities? And when did he know it?” Whitehouse asked.

Wednesday’s hearing followed two earlier hearings in May, including one to which Senate Judiciary Chairman Dick Durbin invited Chief Justice John Roberts. Roberts declined and attached to his response a “Statement on Ethics Principles and Practices” co-signed by all fellow justices, including Thomas.

Whitehouse’s office did not respond to questions about next steps for the bill, which would almost certainly hit roadblocks in the GOP-led House.

Kennedy’s office did not respond to an inquiry about his absence from the hearing.

---

---

Georgia Recorder is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Georgia Recorder maintains editorial independence. Contact Editor John McCosh for questions: info@georgiarecorder.com. Follow Georgia Recorder on Facebook and Twitter.