The Senate Judiciary Committee will host a high-profile partisan clash over the Supreme Court on Tuesday when senators focus on the lack of a binding ethics code for the justices.
Democrats will make the case for Congress to pass a law to force the Supreme Court to adopt such a code, in the wake of reports that Justice Clarence Thomas did not disclose luxury trips and a real estate deal with billionaire Harlan Crow.
But some Republicans on the committee have painted those efforts as an attack on a conservative justice who is part of a 6-3 majority of appointees of Republican presidents who have issued rulings on abortion and gun rights.
Gabe Roth, executive director for Fix the Court who has advocated for Congress to pass an ethics code for the justices, said that getting buy-in from Republicans will be key to any steps forward on long-standing issues surrounding the Supreme Court.
Roth said he is “not sanguine” that there will be a bridge between Democrats who may make hay of the allegations against Thomas but view them as emblematic of ethics problems at the court and Republicans who view the stories as attacks on a conservative justice.
“I know that there’s going to be a lot of heated rhetoric, and it’s going to be worth the price of admission,” Roth said.
Witnesses will be former Judge Jeremy Fogel, Campaign Legal Center General Counsel Kedric Payne, University of Virginia Law School professor Amanda Frost, former Attorney General Michael B. Mukasey and Gibson, Dunn & Crutcher partner Thomas H. Dupree Jr.
Sen. Richard J. Durbin, D-Ill., the panel’s chair, said in a Monday appearance on Bloomberg TV that he hopes to attract bipartisan support for legislation using Thomas as an example. He said a list of principles, which the Supreme Court sent the Senate in response to a committee request for Chief Justice John G. Roberts Jr. to testify, was not enough.
“I don’t think they’re adequate, and Clarence Thomas is proof positive of that,” Durbin said.
Action appears unlikely. Republicans have fervently backed Thomas and control the House, and at least nine GOP senators would have to join the effort to get around filibuster rules and allow a floor vote on legislation.
Sen. Lisa Murkowski, R-Alaska, is the only Republican in the chamber who has signed on to legislation backing ethics overhaul at the court. She and Sen. Angus King, I-Maine, introduced a bill last week to mandate the justices adopt a binding ethics code.
Sen. Ted Cruz, R-Texas, said in an appearance Sunday on Fox News that Democrats view Thomas as a “traitor” because he is an African American conservative. He also said many liberal justices on the court have taken hundreds of international trips. Many of those trips were disclosed, but Thomas’ were not.
“This is a political smear job directed at Justice Thomas because he is an extraordinary constitutionalist and the left hates him for it,” Cruz said.
Tuesday’s hearing comes less than a month after ProPublica published several stories about Thomas’ financial relationship with Crow, which included decades of luxury trips and a real estate sale that were not disclosed on paperwork that is required for all federal judges.
Thomas defended his decision not to disclose the trips, casting Crow as a longtime friend.
More than words
Several Democrats on the panel have argued for the committee to do more in response to the allegations surrounding Thomas, including Sen. Richard Blumenthal, D-Conn. Blumenthal told reporters Thursday that he hopes the committee will investigate Thomas, even if it cannot subpoena the justice himself.
“There are a variety of sources of information here that should be compelled by the Judiciary Committee using its subpoena power,” Blumenthal said.
Durbin was doubtful the panel could do more to force Roberts or Thomas to testify. He told reporters last week that Congress doesn’t have a great history of enforcing subpoenas against justices.
“Check the history of subpoenas for Supreme Court justices. There was one in 1953, and the justice didn’t appear. That’s your answer,” Durbin said.
Durbin was referring to when the House Un-American Activities Committee subpoenaed Justice Thomas Clark, who refused to testify, and Congress did not pursue the matter.
Republicans on the panel have been less receptive to Congress stepping in. Sen. John Cornyn, R-Texas, said he doesn’t see a role for Congress in mandating anything for “a co-equal branch of government.”
“So my hope is that the chief justice and the judiciary take note of some of the controversies that have occurred and take care of this matter themselves,” Cornyn told reporters last week. “Judges have their own code of ethics to follow, and hopefully this will help them do a better job.”
Charles Geyh, an Indiana University Maurer School of Law professor, former House Judiciary Committee counsel and former counsel at the Administrative Office of the U.S. Courts, said Democrats’ only hope to advance legislation is to try to make it about more than Thomas.
For example, Democrats could point out that other justices, including the late Ruth Bader Ginsburg, behaved in ways that might violate an ethics code, such as when she participated in cases in 1995 and 1996 that involved companies in which her husband owned stock.
“My confidence level isn’t high because we are to a point where partisan distrust is so acute that this notion of good government legislation is all but by the boards it’s so hard to proceed with,” Geyh said.