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Supreme Court ethics measure advances on party-line vote

Push for new rules grows after reports of undisclosed travel, gifts

Sen. Sheldon Whitehouse, D-R.I., speaks during the Senate Judiciary Committee meeting Thursday to mark up the a bill imposing new ethics requirements for the Supreme Court.
Sen. Sheldon Whitehouse, D-R.I., speaks during the Senate Judiciary Committee meeting Thursday to mark up the a bill imposing new ethics requirements for the Supreme Court. (Bill Clark/CQ Roll Call)

The Senate Judiciary Committee advanced a bill Thursday that would place new transparency rules on Supreme Court filings, place new recusal standards on the justices and require the Supreme Court to adopt a code of ethics.

The 11-10 party-line vote came as Democrats said Congress has to act because reports about undisclosed gifts and travel received by Supreme Court justices had stained the institution. Republicans, who offered about half a dozen rejected amendments, called the measure an attack on the legitimacy of a conservative-controlled court that has ruled in ways Democrats don’t like.

Sen. Sheldon Whitehouse, D-R.I., said the court has reached a crisis point, spotlighting travel received by Justices Samuel A. Alito Jr. and Clarence Thomas from billionaire donors. Whitehouse, the bill’s sponsor, said the court has been “supremely idle” in addressing ethics problems and the excuses for not disclosing the gifts have been “laughable.”

“Not one person on this committee could or would accept such a bonanza, let alone keep it secret, nor would an executive branch official nor would any other federal judge,” Whitehouse said.

During Thursday’s markup, Sen. Lindsey Graham, R-S.C., called the legislation an attack on the court’s legitimacy, part of a long-term strategy by Democrats to “destroy the court as it exists” since it has ruled in ways they do not like.

“It took us 50 years to get a conservative court, we did it the old-fashioned way. We nominated people, we got the votes,” Graham said. “The bottom line is this is a bill not designed to make the court stronger or more ethical, this is a bill to destroy a conservative court.”

Law unlikely

The bill approved Thursday is unlikely to become law, as most Senate Republicans have resisted the push for ethics legislation. Republicans control the House and leaders in that chamber have criticized the effort. Sen. John Kennedy, R-La., said the measure is “as dead as fried chicken on the Senate floor and dead as fried chicken in the House.”

The bill would require the court to adopt a new code of conduct, reporting rules for gifts, recusal standards and transparency provisions for amicus brief filers. The bill would also establish a panel of lower court judges to review complaints seeking a justice’s recusal from a case.

Kennedy said the complaint process created by the bill was ripe for abuse by allowing members of the public to try and strategically pick off justices in key cases.

“This bill would allow any jackaloon out there in a tinfoil hat whose own dog thinks he’s an utter nutter to file a motion to recuse a Supreme Court justice,” Kennedy said.

During debate Thursday, Republicans proposed amendments that would have expanded judges’ ability to carry firearms, mandated the Supreme Court release the name of the person who leaked a Supreme Court draft opinion last year and more.

At one point, Sen. Ted Cruz, R-Texas, said, “Democrats support those violent threats of justices” for refusing to support an amendment that would encourage the Justice Department to investigate potential crimes tied to protests outside justices’ homes in the last year.

One amendment offered by Kennedy was adopted after being altered by two amendments from Chair Richard J. Durbin, D-Ill. As amended, the measure would denounce any racist statements made against all Supreme Court justices.

New urgency

Democrats have pushed Supreme Court ethics legislation for years, and the House Judiciary Committee advanced a similar bill on a partisan basis last year, when Democrats controlled the chamber. But the issue bubbled over three months ago when ProPublica first reported that Thomas received undisclosed gifts and travel from billionaire Harlan Crow.

Since then, ProPublica and other outlets have reported that Alito went on an undisclosed Alaskan fishing trip on a private jet and staff for Justice Sonia Sotomayor pushed universities and other institutions to buy her books before she would speak there.

In rare public statements, Thomas and Alito both defended their decisions not to disclose the gifts or travel. Crow and others who allegedly gave the justices gifts have declined to provide information to the Senate Judiciary Committee and Senate Finance Committee.

Chief Justice John G. Roberts Jr. has also declined an invitation to testify before the Senate Judiciary Committee.

While Republicans have said the justices’ behavior raises some concerns, they said Congress does not have the authority to legislate the court’s ethics. A few weeks before the first ProPublica story in April, the federal judiciary’s rulemaking body adopted a new reporting rule that would cover some of the travel Thomas received from Crow.

Republicans have pointed to that rule change as showing the judiciary can police itself. Sen. Charles E. Grassley, R-Iowa, said the court does not need a “temper tantrum” from the activists on the left upset at recent rulings.

“These efforts to hijack the court must stop,” Grassley said.

Democrats said they have the authority to regulate the Supreme Court and last Congress passed a law to mandate justices and federal judges report stock transactions. Congress has also passed laws mandating financial disclosures and advanced bills to mandate the court broadcast its proceedings.

Whitehouse said Congress has already established the rulemaking body for the Supreme Court in the Judicial Conference of the United States, which is headed by Roberts and comprised of lower court judges.

“Allowing Congress the power to check abuses in the judicial branch is a long established and proven fact that the Supreme Court has gone along with for years without complaint,” Whitehouse said.

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