WASHINGTON — Senate Democrats made the case at a Judiciary Committee hearing Tuesday for ethics reform at the Supreme Court, while Republicans complained that the effort is part of a campaign to delegitimize conservative justices for rulings that have angered liberals.
The hearing went ahead without the involvement of Chief Justice John Roberts, who rejected a request to testify.
The committee, controlled by Democrats, heard from five outside witnesses about the issue, which has made headlines following reports about ethical standards on the court. Most notably, ProPublica reported last month that Justice Clarence Thomas had not disclosed expensive trips paid for by a friend, conservative billionaire Harlan Crow.
Sen. Dick Durbin, D-Ill., who chairs the committee, said legislative action is needed because Supreme Court justices, unlike lower court judges, largely police themselves. He said the ethical standards for Supreme Court justices are lower than they are for city council members.
"I think it’s pretty clear to most objective people this is not the ordinary course of business, nor should it be a standard for those of us in public service," he said.
Republicans mostly say Democrats are motivated by sour grapes because the court now has a 6-3 conservative majority that has dramatically shifted its rulings to the right, most notably with last year’s reversal of the 1973 Roe v. Wade decision, which said women had a constitutional right to obtain abortions.
Sen. Lindsey Graham of South Carolina, the ranking Republican on the committee, said the latest push for reform was part of "a concentrated effort by the left to delegitimize the court."
To illustrate his point, he mentioned a March 2020 incident in which Sen. Chuck Schumer, D-N.Y., then the minority leader, angrily berated conservative justices outside the courthouse and warned that they would "pay the price" if they ruled against abortion rights. Schumer, now the majority leader, walked back his comments the next day.
Graham, however, said that while he would not support imposing new ethics rules, he did support the court’s taking steps to address some ongoing concerns.
"What I would urge the court to do is to take this moment to instill more public confidence. I’m not gonna vote for any of these bills, but I think we would all be better off if they did that," he said.
Other Republicans seemed equally hostile to the idea of ethics legislation. Sen. Mike Lee of Utah said Democrats and progressive activists were trying to "harass and intimidate the court."
Several Republican senators mentioned safety concerns raised by protesters' gathering outside the homes of justices.
A key question raised by ethics experts and Democratic lawmakers is why the Supreme Court has not adopted an ethics code similar to the one lower federal court judges follow.
Among other things, that code requires judges to “avoid impropriety and the appearance of impropriety in all activities.” If judges breach the code, they can be investigated and reprimanded through a separate complaint process.
The justices say they follow the spirit of that code, introduced in 1973, but they have never formally adopted one of their own. There is also no procedure for complaints to be investigated short of the drastic step of impeachment.
Members of Congress have introduced legislation to require the justices to adopt a code. The pressure has come predominantly from Democrats, although Sen. Lisa Murkowski, R-Alaska, has backed one of the bills.
Any effort by Congress to intervene could raise constitutional questions, because lawmakers would be meddling in the internal affairs of a separate branch of government, a point Republicans made at Tuesday's hearing.
But the Supreme Court already follows recusal and financial disclosure rules that were adopted by Congress. The court, as Roberts noted in 2011, “has never addressed whether Congress may impose those requirements.”
Witnesses at Tuesday’s hearing included two former judges: Democratic appointee Jeremy Fogel, who was a district judge in California, and Republican appointee Michael Mukasey, who was a district judge in New York before he was attorney general in the administration of President George W. Bush.
Fogel said several factors have increased the need for ethics reform, including the partisan political climate and a lack of civics education in schools.
"In this environment, I believe that the absence of a formal structure for defining and validating the ethical rules governing the Supreme Court justices is untenable," he said.
Mukasey pushed back against news reports about Thomas and other justices that alleged ethical lapses, saying recent criticism, coming mostly from the left, undermines the nonpartisan argument in favor of ethics reform.
“If the public has a mistaken impression that the integrity of the court has been damaged, the fault for that lies with those who continue to level unfair criticism at the court," he said.
When Roberts declined to attend Tuesday's hearing, suggesting it would threaten the independence of the judiciary, he attached a statement signed by all nine justices stressing their commitment to ethics principles. The statement was heavily criticized by ethics experts who said it did little to address recent concerns.
Senate Democrats asked Roberts several questions in response, leading Roberts to send a letter Monday confirming that the court has "no set rules" about adopting ethics proposals.
Roberts said he was "not aware" of any situations in which a justice had been subject to any penalties for failing to make relevant disclosures on the annual forms judges are required to file.
Sen. Richard Blumenthal, D-Conn., criticized Roberts' decision not to attend the hearing Tuesday, saying it constituted "judicial malpractice."