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Push for Supreme Court ethics code gets bipartisan boost

But a floor speech from Senate Minority Leader Mitch McConnell highlights how partisan headwinds still remain

Sens. Angus King, I-Maine, and Lisa Murkowski, R-Alaska.
Sens. Angus King, I-Maine, and Lisa Murkowski, R-Alaska. (Tom Williams/CQ Roll Call)

A pair of senators announced bipartisan legislation Wednesday to require the Supreme Court to adopt an ethics code within a year, in the wake of reports that Justice Clarence Thomas did not disclose luxury trips or a real estate transaction with a billionaire GOP donor.

The bill from Alaska Republican Sen. Lisa Murkowski and Sen. Angus King, a Maine independent who caucuses with Democrats, is the first bipartisan measure on the issue introduced in either chamber since ProPublica reports earlier this month spotlighted the relationship between Thomas and Harlan Crow.

The measure also would require the Supreme Court to designate an official to handle ethics complaints and publish any steps taken in response, as well as allow the marshal of the Supreme Court to contract with federal agencies to conduct ethics investigations.

Murkowski said in a news release that the Supreme Court’s public standing has suffered from a series of self-inflicted wounds.

“The Supreme Court must demonstrate independence and fairness as they rule on the laws of the land — and any cracks in the public’s confidence will have damaging repercussions for the state of our democracy,” Murkowski said.

Other Republicans

The bill comes as Democrats have hit several roadblocks as they respond to the reports on Thomas, including two Democrat-led bills to create a Supreme Court ethics code that have not garnered bipartisan support.

Republicans have largely backed Thomas, including Senate Minority Leader Mitch McConnell, R-Ky., who said on the floor Wednesday that he had “total confidence” in Thomas and other conservative justices.

McConnell said Thomas and Justice Neil M. Gorsuch, who was the subject of a Politico report about an unreported real estate transaction with a prominent law firm executive, have been “subjected to a carousel of character assassination” as part of Democrats’ “never-ending attempts to smear and defame justices appointed by Republican presidents.”

In a press conference with reporters Wednesday, King called McConnell’s speech “the senatorial equivalent of ‘there’s nothing to see here.’”

“But I think everyone in America knows there is something to see here,” King said.

King said his bill would “save the Supreme Court from themselves” in the wake of reports about Thomas and Gorsuch.

The measure gained public plaudits from groups such as Fix the Court, whose executive director Gabe Roth said he consulted on the bill.

Roth and other advocates have pushed for the Senate to address the allegations around Thomas as well as Supreme Court ethics more broadly following the ProPublica report.

“Without a formal code of conduct, without a way to receive ethics complaints and without a way to investigate them, the Supreme Court has set itself apart from all other federal institutions. But this unprincipled and unjustified exceptionalism must no longer stand,” Roth said in a statement.

Committee future

The bill will likely head to the Judiciary Committee, where efforts to address ethics issues at the Supreme Court have met partisan and institutional roadblocks.

Chief Justice John G. Roberts Jr. declined an invitation from committee Chair Richard J. Durbin, D-Ill., to testify at a hearing about Supreme Court ethics issues. Durbin has argued he could not subpoena Roberts or Thomas for their testimony, but said that “it is time for Congress to accept its responsibility to establish an enforceable code of ethics for the Supreme Court.”

Democrats have so far backed a handful of proposals, including one from Sen. Sheldon Whitehouse, D-R.I., and Rep. Hank Johnson, D-Ga., that would require the court to adopt a formal ethics code, recusal standards that require an explanation and greater gift and travel disclosures.

That measure, which faced uniform Republican opposition last Congress and did not pass either chamber, has been reintroduced this Congress.

Another bill from Sen. Chris Murphy, D-Conn., and Johnson would require the court adopt an ethics standard, appoint an ethics counsel and adopt a recusal process.

The King-Murkowski measure is narrower and does not mandate specific provisions be adopted by the court. King told reporters that he and Murkowski would try to muster up more Republican support but that may be difficult.

McConnell in his floor speech Wednesday equated criticism of Thomas’ ethics with protestors disrupting legislative sessions in Tennessee and other states over gun control or those protesting outside of justices’ homes in the wake of last year’s decision overturning a constitutional right to an abortion.

Appropriations talk

The Republican leader cast all of that as part of a broader left-wing attack on the rule of law and criticized a Democratic proposal to withhold some appropriations funding until the court adopts a code of ethics.

“So after fanning the flames of violence against a branch of government, Democrats now want to defund the justices’ ability to protect themselves and their families if certain senators don’t get their way,” McConnell said. “They are trying to turn impartial judges into partisan hostages. This is really beyond irresponsible.”

Earlier this month, Sen. Chris Van Hollen, D-Md., who chairs the Senate appropriations subcommittee that oversees funding for the federal courts, proposed holding back some appropriations funding until the court adopts a binding code of ethics. Van Hollen’s proposal did not mention anything about court security.

A fiscal 2024 funding request released last month sought more than $12 million in increases for the Supreme Court for physical security and personal security for the justices. A $6.5 million increase would go to security upgrades driven by recommendations from the U.S. Army Corps of Engineers, according to the budget. The increase is needed to reinforce the building, according to the budget request.

Another $5.9 million increase would pay for increased security for the justices, according to the summary. They have received round-the-clock protection since the leak last year of a draft opinion revoking the constitutional right to an abortion.