Senate GOP says Congress can’t do anything about Clarence Thomas ethics mess

The Senate Judiciary Committee held its first hearing on the growing ethics problems of the Supreme Court on Tuesday, in response to a recent series of startling revelations that Justice Clarence Thomas failed to adequately disclose to property sale and hundreds of thousands of dollars in lavish gifts from a billionaire conservative donor.

The hearing revealed nothing new about the court’s ethical quagmire. No judge agreed to appear to testify. Chief Justice Dick Durbin (D-Ill.) had politely requested Chief Justice John Roberts to testify or appoint another justice to appear, but Roberts declined, citing “concerns about the separation of powers and the importance of preserve judicial independence”. Durbin took issue with Roberts’ refusal to appear in his initial comments.

“Answering legitimate questions from the people’s elected representatives is one of the checks and balances that helps preserve the separation of powers,” he said.

Democrats hoped to provide checks and balances to the court’s failure to adopt a binding code of conduct. Over the past two years, the court has repeatedly come under fire for ethical lapses, including over the relationship between Thomas and billionaire Harlan Crow, Thomas’ father. refusal to challenge of a January 6 case related to his wife’s role in the insurrection, Judge Neil Gorsuch sale of a property the director of a law firm and the filtration of Judge Samuel Alito’s decision to quash Roe v. Wade and other leak reports.

“The court has shown conclusively that it cannot control itself,” said Sen. Sheldon Whitehouse (DR.I.).

But if anything became clear after the three-and-a-half hour hearing, it was that Republicans want no part in the Supreme Court mess. That includes not even considering the legislation offered by one of his colleaguesSen. Lisa Murkowski (R-Alaska), to simply require the court to create a code of conduct for itself within a year.

Sens. Lindsey Graham (SC) and Thom Tillis (NC) were the only Republicans to briefly agree that something needs to change on the court. But they said the judges, not Congress, should handle it. Graham recognized the plummeting levels of public trust in court and that the court has a lower threshold for ethics violations than other branches of government.

“I’m not into micromanaging the court,” Graham said. “What I would urge the court to do is take advantage of this moment to instill more public confidence. So I’m not going to vote for any of these bills. But I think we’d all be better off if they did that.”

Most of the Republican committee members did not even discuss a code of ethics for the court, which was the focus of the hearing. Instead, they routinely accused Democrats of trying to discredit Thomas and other conservative justices because they didn’t like their rulings in several cases. They talked about protecting the safety of Supreme Court judges.

Sen. John Cornyn (R-Texas), in a move whose effectiveness was questionable, played video of Thomas at his Senate confirmation hearing 32 years ago, defending himself against Anita Hill’s sexual harassment allegations against him.

“It provides important context for today’s hearing,” Cornyn said of the clip because it is proof that Supreme Court justices have been “subjected to relentless campaigns of harassment and intimidation.”

When they weren’t accusing Democrats and the “radical left” of running a smear campaign against the court, Republicans leaned heavily on the separation of powers argument made by Roberts in a letter he recently sent to the committee in response to senators’ questions about court ethics mess. In it, Roberts disputed the idea that Congress could require the Supreme Court to adopt a code of conduct or require it to abide by any other ethics rule.

“Some Democrats want Congress to override the Supreme Court and apply rules to their justices,” said Sen. John Kennedy (R-La.). “The constitutional separation of powers means that no branch of the federal government can dictate how another should govern itself.”

This argument amounts to a theory of a unitary Supreme Court, according to which, like the Unitary Executive Theory popular among legal conservatives, the highest court has imperial authority above and beyond the legislative and executive branches. Former Attorney General Michael Mukasey, a Republican witness, said he believed the ethics laws Thomas is charged with would be unconstitutional.

This, however, goes against the text and structure of the Constitution and the original understanding of the federal judiciary at its creation. You shouldn’t mention the separation of powers without also noting the equally important concept of checks and balances, said Amanda Frost, a professor at the University of Virginia School of Law, in her testimony.

“The role of Congress is to establish the Supreme Court,” Frost said. “It’s not just allowed. It is necessary.”

Congress created the federal judiciary in the Judiciary Act of 1789, which established the number of judges, court quorum rules, and imposed an oath of office that all federal judges, including judges, must take.

Over the years, Congress has used the authority granted by the Constitution to change the shape and power of the court. For example, Congress changed the size of the court six different times. It also has the authority to strip the court of jurisdiction over issues not explicitly stated in Article III of the Constitution.

Just as it required an oath of office in 1789, Congress can enact rules of ethics for the court. The only reason questions have been raised about Thomas not disclosing Crow’s lavish gifts is that Congress required judges to disclose his finances in the Ethics in Government Act. Most recently, in 2022, Congress passed legislation by unanimous vote in the Senate to impose disclosure requirements on judges’ stock trading.

What comes next for the committee it is not clear. There are no more hearings scheduled to investigate the ethics of the court. However, some Democrats have made clear their desire to continue investigating, including Sens. Richard Blumenthal (D-Conn.) and Whitehouse.

“I think we need a proper investigation by the Department of Justice because there are allegations of criminal wrongdoing here,” Blumenthal said. “And absent an investigation by the Department of Justice, we have a role to play in Congress.”

As the hearing progressed, Sen. Peter Welch (D-Vt.), perhaps exasperated at making no headway with the Republicans after hours of testimony, interrupted a Republican witness explaining court technicalities to ask the question. basic that no one seemed to be able to understand. answer.

“As a citizen, you know, we have different points of view,” Welch said. “But what’s the problem with a Supreme Court justice who says, ‘Let’s have a code of conduct that applies to all of us?’”