Chairman Dick Durbin speaks during a Senate Judiciary Committee hearing on Supreme Court ethics reform on Capitol Hill in Washington, D.C.
We might as well say right now that the Senate Judiciary Committee is unlikely to get a federal law passed that would set clear standards for the ethically challenged U.S. Supreme Court.
Passing a Senate ethics bill would require 60 votes, which would require at least nine GOP lawmakers — who like the majority-conservative court operating just as it is — crossing the aisle to vote with their Democratic counterparts.
And the Republicans control the House, so a bill would certainly be D.O.A. there.
Also, legal experts aren’t in agreement about whether or not Congress has the constitutional authority to impose ethics standards on the court, or order the court to do so itself.
Caveats and questions aside, the Ethics Committee’s hearings, which began this week and are being led by chair Sen Richard Durbin, D-Ill., are an important vehicle — perhaps the only one at this stage — to leverage public pressure against the wayward high court.
“The highest court in the land shouldn’t have the lowest ethical standards,” Durbin said Tuesday at the hearing’s outset. “That reality is driving a crisis in public confidence in the Supreme Court. The status quo must change.”
Too many Americans, public opinion polls show, have too little confidence in the nation’s highest court — a bad sign for democracy.
Ethics ‘principles and practices’ are not enough
Justice Clarence Thomas is at the center of this mess, for declaring very little of the gifts, free travel and other largesse he and his wife received from GOP billionaire Harlan Crow — all while organizations linked to Crow had cases before the court.
But Thomas isn’t alone. In 2017, a month after joining the Supreme Court, Neil Gorsuch sold for $1.8 million a Colorado property he co-owned that spent two years on the market. He disclosed the sale, but left the space blank for the buyer’s name.
The buyer, it was reported last month, was Brian Duffy, an executive at Greenberg Traurig, a big-league national law firm with cases before the court.
Illegal? Probably not. But a bit hinky? Yes.
There’s more and more, involving other justices. Yet Chief Justice John Roberts lets it all roll by, claiming he’s shocked, shocked at waning public trust in the court.
Durbin invited Roberts to testify before the ethics hearing, but the judge dodged the invite and instead created and sent a copy of the court’s “Statement on Ethics Principles and Practices.”
But the document, signed by all nine justices, doesn’t have the weight or refinement of an actual ethics code. Lower courts are bound by such codes.
“In that light, the Statement of Principles appears to be an attempt to head off the criticism,” Northwestern University Pritzker School of Law Professor Steven Lubet wrote this week in The Hill.
“We may not have a code, the justices seem to say, but at least we have a statement, which is just as good,” Lubet said.
Durbin dismissed the Statement of Principles during the hearing, saying the document “makes clear that, while the justices are fine with consulting certain authorities on how to address ethical issues, they do not feel bound by those authorities.”
Supreme Court ‘cannot police itself’
The Statement of Principles indeed may be toothless, but its creation at least shows the court — despite the ‘‘above it all” arrogance shown by Roberts’ refusal to show up before Durbin’s committee — might be feeling some heat.
Even committee member Sen. Lindsey Graham, R-S.C. — who tried to claim that the ethics push is part of “a concentrated effort by the left to delegitimize the court” — nevertheless said the justices should speak to the concerns raised.
“What I would urge the court to do is to take this moment to instill more public confidence,” Graham said. “I’m not gonna vote for any of these bills, but I think we would all be better off if they did that.”
Will the court take that mild step forward without some prodding? We’re not convinced.
“Until there is an honest ethics process at the Supreme Court, these messes will continue,” Sen. Sheldon Whitehouse, D-R.I., told the committee. “The court has conclusively proven that it cannot police itself.”
Hear, Hear. Durbin and the committee should keep the pressure on. The integrity of the nation’s highest court and the trust of the American people are at stake.
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