Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) scolded Supreme Court Chief Justice John Roberts at a hearing Tuesday for what he called the court’s “oblivious” response to the “obvious” ethical conflicts facing its members.
He chastised the high court for not adopting the same judicial code of conduct binding every other federal court and warned it had undermined public confidence in the court.
“The highest court in the land shouldn’t have the lowest ethical standards. That reality is driving a crisis in public confidence in the Supreme Court. The status quo must change,” the majority whip said in his opening statement at a hearing on Supreme Court ethics reform.
Roberts was not in attendance at the hearing, having declined an invitation from Durbin to appear.
A Gallup poll conducted in December found the Supreme Court had a 58 percent disapproval rating, the worst Gallup had measured in more than 20 years.
Durbin noted that over the course of several decades, Congress and most of the federal judiciary has created a system of ethics to promote transparency and disclosure of potential conflicts, but the Supreme Court “does not consider itself bound” by those rules.
And he dismissed the court’s “Statement on Ethics Principles and Practices,” which Roberts sent to the Judiciary Committee last week along with a letter declining an invitation to testify before the committee, as a troubling response to growing ethical concerns.
“It makes clear that, while the Justices are fine with consulting certain authorities on how to address ethical issues, they do not feel bound by those authorities,” Durbin said.
“Much of the document explains why justices think they should not be treated the same as other federal judges when it comes to ethics standards. And it stresses that recusal decisions are made by individual justices alone, with no review of their discretion,” he said.
“The chief justice’s letter and statement of principles are a defense of the status quo. But they are oblivious to the obvious,” Durbin added.
Durbin scheduled the hearing in response to two bombshell reports published last month by ProPublica detailing luxury trips conservative Justice Clarence Thomas received from Texas billionaire Harlan Crow over more than two decades, as well as the sale of a property Thomas owned a one-third interest of to one of Crow’s companies.
Thomas did not disclose the trips or the property sale, as was required under the 1978 Ethics in Government Act.
Durbin said Thomas “has faced no apparent consequences under the court’s ethics principle.”
“We wouldn’t tolerate this from a city council member or alderman. It falls short of the ethical standards we expect of any public servant in America. And yet, the Supreme Court won’t even acknowledge it’s a problem. The chief justice’s letter doesn’t mention it,” he said.
Durbin’s opening statement received a sharp response from Sen. Lindsey Graham (R-S.C.), the ranking member of the Judiciary panel, who accused Democrats of trying to intimidate conservative members of the court.
Graham cited Senate Majority Leader Chuck Schumer’s (D-N.Y.) March 2020 warning that conservative Justices Brett Kavanaugh and Neil Gorsuch would “pay the price” for “the whirlwind” they had released.
“I think, here’s what you’re trying to do on the Democratic side. Remember when Sen. Schumer went to the court and started yelling at everybody in the court? Not everybody, just pretty much our folks,” Graham said.
He said Wednesday’s hearing is part of “a concentrated effort by the left to delegitimize this court and to cherry-pick examples to make a point.”
He pointed to a recent article in The New York Times about perks conservative justices received from George Mason University’s law school to teach classes in tourist destinations such as Padua, Italy, Rome and London.
Graham said, however, that the Times failed to balance its reporting with examples of liberal Justice Sonia Sotomayor’s travel paid for by New York University, and former centrist Justice Anthony Kennedy’s trips paid for by the Aspen Institute and University of the Pacific.
He accused liberals of waging an “assault” on Thomas.
“It is about trying to delegitimize a conservative court that was appointed through the traditional process,” he said, accusing liberals of wanting to “expand the number of justices to dilute the conservative majority that exists today.”
“From our point of view, this is not going to work,” Graham said.
Graham also pointed out that liberal Justice Elena Kagan, the former dean of Harvard Law School, has raised “half-a-billion dollars for the law school.”
“After she left, she’s been trying to raise money for Harvard Law School. There’s a case involving Harvard before the court, she’s not going to recuse herself,” he said, referring to a challenge to Harvard’s affirmative action policies the justices are now considering.
“There’s a very selective outrage here,” Graham said. “We’re going to push back as hard as we can and tell the American people the truth about what’s going on here.
“This about destroying a conservative court.”