February 9, 2024

ICYMI: Whitehouse ‘Scheme’ Speech Shines Spotlight on Little-Known Judicial Agency that Has Begun to Hold Supreme Court Accountable

Speech unveiled letter from Whitehouse and Wyden to Judicial Conference submitting evidence that Justice Thomas may have willfully omitted income from his financial disclosure reports. Letter renews Whitehouse request to Judicial Conference to investigate Justice Thomas’s potential violations of the Ethics in Government Act.

Washington, DC – In case you missed it, Senator Sheldon Whitehouse (D-RI), Chairman of the Senate Judiciary Courts Subcommittee, yesterday delivered the twenty-eighth in a series of speeches titled “The Scheme,” exposing the machinations by right-wing donor interests to capture the Supreme Court and achieve through the Court what they cannot through the elected branches of government. 

Whitehouse explained the important role of the Judicial Conference of the United States, a little-known agency within the judicial branch that is well-positioned to improve transparency in the judiciary and strengthen the ethics rules that apply to the Supreme Court justices.  The Senator also recounted the progress he has made in seeking action from the Judicial Conference on issues related to judicial ethics.

“I am just going to continue to press along in bringing information before the Judicial Conference so that they and the public can get clear answers on these issues,” said Whitehouse.  “Certainly, the American people deserve transparency when it comes to fairness and gifts from interested billionaires to Justices of the Supreme Court.”

In his speech, Whitehouse also unveiled a new letter he and Senate Finance Committee Chairman Ron Wyden (D-OR) sent to the Judicial Conference’s Committee on Financial Disclosure urging the Committee look into another seeming failure by Justice Clarence Thomas to disclose information required under the Ethics in Government Act. 

An investigation by the Senate Finance Committee revealed that in November 2008, billionaire Anthony Welters ceased collecting principal and interest on a $267,230 loan issued to Justice Thomas and his wife for the purchase of an RV.  Evidence provided by Welters to the Committee indicate that no principal was ever repaid on the loan before all payments ceased, and that Justice Thomas did not report any such forgiveness as income on his financial disclosure report covering the year 2008, even though he was required to by law.

“Given the unexplained discrepancy between Justice Thomas’s claims and documents reviewed by the Senate Finance Committee, the serious implications of a potential disclosure violation, and past financial disclosure omissions by Justice Thomas, we believe this additional matter warrants inclusion in the investigation by the Committee on Financial Disclosure,” wrote Whitehouse and Wyden.  “We request that the Committee on Financial Disclosure review this matter in conjunction with other potential disclosure violations currently being reviewed by the Committee.”

Whitehouse first asked the Judicial Conference to refer Justice Thomas to the Attorney General for investigation in April 2023 after reporting from ProPublica exposed Justice Thomas’s propensity for accepting undisclosed gifts from the politically active right-wing billionaire Harlan Crow.  He followed-up with the Judicial Conference in August 2023, asking the Conference to consider the full breadth of secret billionaire-funded gifts to Justice Thomas as support for referral to the Attorney General.  Whitehouse has also written to the Judicial Conference to ask for additional details on previous 2011 referrals of potentially unlawful conduct by Justice Thomas.

A PDF of Whitehouse and Wyden’s letter is available here.  Full text of Whitehouse’s Scheme speech as-delivered is below, and a video is available here.

Mr. President, I am back now for the 28th time in my series of speeches on the special interest scheme to capture the U.S. Supreme Court. What I would like to do today is to talk a little bit about the Judicial Conference and what the Judicial Conference has been doing to help clean up the mess at the Supreme Court.

I suppose I should start with “What is the Judicial Conference?” The Judicial Conference is a body created by Congress around 100 years ago as the chief governing and policymaking body of the Federal judiciary. It basically supervises the administrative side, not the adjudicative side—the administrative side—of the judicial branch of government. It is chaired by the Chief Justice, and its membership is composed of the chief judges of each circuit and of the Court of International Trade. So it is a very distinguished group of very senior appellate judges and a district judge from each circuit—typically, a chief judge or a senior judge. Again, it is a pretty distinguished group.

The Conference is responsible for, among other things, enforcing ethics rules, overseeing financial disclosures, and setting other policies across the Federal judiciary, which it mostly does through committees. It has committees on issues ranging from financial disclosure to things like courtroom security.

The Judicial Conference has a very important role enforcing judicial ethics rules. Ethics rules are within its ambit of responsibility. Now, bearing in mind the recent ProPublica story concluding that the Judicial Conference has, to quote the story, “often protected, not policed, the judiciary,” I wanted to share my experience as I have conducted this investigation and how we have been able to work with the Judicial Conference. First, let me say, as a general matter, that the Judicial Conference is very reticent—very reticent. Getting even basic information, like which judge serves on which committee, is an uphill struggle.

Last year, Business Insider, the publication, sought the list of members of the Committee on Financial Disclosure, and the Conference initially denied the request—what can I tell you— saying that the “names of the members of the committee are not public,” which is kind of a strange position to take when they are paid by taxpayers to do that work, and all you are asking is who they are. But, thankfully, later, the Conference reversed course. I requested the Judicial Conference disclose information, like who sits on its committees and what rules they operate by, but, so far, I have not yet received a formal response to that, and I very much hope that the members of the Judicial Conference will make this information public. Transparency is not a bad thing in this area.

Anyway, through all of its established reticence, when I have brought issues to the attention of the Judicial Conference through correspondence or through remarks that I deliver at the Conference’s twice-annual meetings in Washington, which I am invited to in my capacity as the chairman of the Senate Judiciary Courts Subcommittee, the Conference has generally produced positive results. My requests have covered four areas, and I will give you a quick overview of where those matters stand.

First, I will talk about the disclosure rules for amicus curiae briefs, or “friend of the court” briefs. Dark money front groups send flotillas of amicus briefs to the Supreme Court. The Justices and their clerks read these briefs. They often cite them in their official decisions. But it is basically judicial lobbying. The problem is that this flotilla of amicus briefs doesn’t have to disclose the true source of the funding behind the briefs.

So neither the Justices nor the other parties nor the public gets to know who is really paying for these arguments to be presented to the Supreme Court, nor do we know the interconnections among the front groups. To what extent are they single web of front groups masquerading as a great number of individual entities?

We know for sure one thing: There was a brief filed under a “fictitious name” of another organization. It wasn’t even a real entity that filed the brief. It was the “fictitious name” under Virginia law of a completely different group, and that was done without disclosing the name of the actual group to the Court. That means it is left to offices like mine to track these groups and then explain to the Court, which we do in our amicus briefs, how all of this flotilla of briefs is coordinated.

Very often we see common dark money donors. Very often we see the fingerprints of the rightwing billionaires’ Court fixer, Leonard Leo, time and again. Dark-money groups pay huge sums to support rightwing Justices’ confirmations onto the Court and then turn around and file amicus curiae briefs to signal to those Justices, whom they helped get on the Court, how they should rule.

So, since 2019, I have asked the Supreme Court to strengthen its amicus disclosure rule. After much badgering, the Court, to its credit, sent this matter to the Judicial Conference for consideration, where, at the Judicial Conference, it was, in turn, referred to an advisory committee. Although that advisory committee hasn’t yet formally proposed a rule change, things look promising.

These judges who make up the Judicial Conference well recognize the importance of, as one judge said, knowing what she called the “real power behind the throne” in these flotillas of amicus briefs. It is also encouraging to hear judges on the committee recognize that there is a “broad agreement,” which they said, on the need for better disclosure. As always, the devil will be in the details, but, thus far, the Judicial Conference is on the case. It has announced that it is examining the matter.

Another issue that I have raised with the Judicial Conference is what I call the “Scalia trick,” misuse of the “personal hospitality” exception in the financial disclosure rules. Justice Scalia got this trick named for him by taking dozens of high-end hunting trips for free, and he used this rule to avoid disclosing them. He pretended that a “personal invitation” from a resort owner, whom he had perhaps never met, made it “personal hospitality” protected by the rule.

Senator Graham and I first sent a bipartisan letter to the Supreme Court about abuse of the personal hospitality exception back in 2021. This letter can be found online here. After that, I sent several more letters asking the Court to address the “Scalia trick.” Those three letters can be found online herehere, and here.

The good news is that, in March of last year, the Administrative Office of the Courts wrote to me to say that the Committee on Financial Disclosure “would clarify its regulations on ‘personal hospitality.”’ I will quote that word again, “clarify,” because it matters later. Sure enough, when the clarification came out, the Judicial Conference slammed the door hard on the “Scalia trick”—so no more secret flights to and from hunting trips across the country on someone else’s dime; no more secret “personal” hospitality paid for by a third party; and no more secret “personal” hospitality, so called, at properties owned by a corporation. I count these clarifications as a win. So I will put that into the “win” column.

There is a related question still pending from that. Justices Thomas and Alito claimed, last year, this same exception—the “personal” hospitality exception—let them accept their secret gifts of jet and yacht travel from rightwing billionaires without reporting it. In his most recent financial disclosure report, Justice Thomas claimed that he could keep those past gifts secret because what he called the committee’s “new rules”—his description— didn’t go into effect until March 2023. And there I disagree.

The disclosure law was always clear. It was the Judicial Conference’s guidance that hadn’t headed off the “Scalia trick,” likely because nobody imagined that any judge would be so bold as to have intermediaries ask resort owners to send them invitations for free travel and then call that “personal” hospitality. Anyway, the judiciary’s letter to me said that the change was a “clarification.” And that word choice matters a lot here, because if it was, in fact, a “clarification,” then Justice Thomas and all the rest of the Supreme Court must amend their past filings to comport with the law, because it had always been that way, and they would have to disclose all the freebies kept secret in previous years.

So pending at the Judicial Conference is my request that the Conference clarify whether the revised guidance constituted a “clarification” or a rule change. I do not have a response to that yet, but the end of the “Scalia trick” was a considerable win.

I have also contacted the Conference about how omissions in Justice Thomas’s financial disclosure report were handled by the Conference back in 2011. That correspondence can be found online here and here.

Back then, Justice Thomas failed to disclose $700,000 that the far-right Heritage Foundation had paid his wife over several years. Justice Thomas’s undisclosed yacht and jet travel, paid for by the rightwing billionaire Harlan Crow, also became public for the first time. So Members of Congress and a watchdog group sent the 2011 omissions to the Judicial Conference’s Committee on Financial Disclosure for review. Under the law, the Conference is required to refer the matter to the Attorney General for further investigation if there is reasonable cause—reasonable cause—to believe that the violations may have been willful.

Last year, my Courts Subcommittee heard testimony from a judge who was then on the Judicial Conference, who raised serious concerns about the Conference’s “reasonable cause” inquiry. There is actually no indication that a “reasonable cause” inquiry was made, so in August, I wrote to the Administrative Office to find out more about what really happened. The Administrative Office acknowledged my request, but I have not yet received a response to my questions.

The Judicial Conference is also considering Justice Thomas’s more recent financial disclosure omissions. Congressman Hank Johnson, who is my coordinate as the top Democrat on the Courts Subcommittee on the House side, and I wrote to the Judicial Conference several times, along with other Members of Congress, asking for a review of these ethics violations and a determination as to whether referral to the Attorney General is required for this second round of yacht and jet travel from Republican billionaire Harlan Crow, for the real estate sale from Thomas to Crow, and for various gifts from other ultra-wealthy individuals, including Paul Novelly and David Sokol. Madam President, those letters can be found online here and here.

As in 2011, the current matter has been sent to the Committee on Financial Disclosure. We don’t know exactly how the committee’s review is going, but the Judicial Conference’s report on its September meeting—its most recent meeting—included this interesting note on the committee’s activities. The note said the committee was “updated on the status of the ongoing review of public written allegations of errors or omissions in a filer’s financial disclosure reports that were referred to it since the Conference’s last session.” So it seems like that is this matter, and it seems like that investigation is an ongoing review.

The final issue I have raised with the Judicial Conference is my complaint against Justice Alito for what I thought was a pretty blatant ethics violation last summer. I addressed this complaint to Chief Justice Roberts both in his capacity as Chief Justice and as Chair of the Judicial Conference. Madam President, that letter can be found online here.

The Supreme Court, unlike every other Federal court, has no procedure for receiving or investigating ethics complaints, so that is why I sent it to him wearing both of those hats. The first thing I asked the Chief Justice to do was to change that. There should be a place where, with a complaint like that, I could go and file it and somebody would pay attention.

I also asked that either the Conference or the Court conduct its own investigation into Justice Alito’s comments in the Wall Street Journal’s editorial page, made in an interview with David Rivkin, where Justice Alito offered his legal opinion that “[n]o provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.”

Well, it seems to me that is a slam dunk ethics violation for a couple of reasons. First, Justice Alito was opining on the constitutionality of my Supreme Court ethics bill, which the Senate Judiciary Committee had recently advanced, and the legitimacy of related oversight requests from the Senate Judiciary and Finance Committees. We have heard time and time again from Supreme Court nominees, including Justice Alito himself, that it is improper and a disservice to the judicial process—those were Justice Alito’s words in his nomination hearing—for them to express opinions on a matter that might come before the Court. Well, boom. This was a matter that might come before the Court—indeed, it was actually likely to come before the Court—and there he was opining at will in the pages of the Wall Street Journal’s editorial page.

But it gets worse. He made his comments in the context of a specific ongoing legal dispute—a dispute involving Court fixer Leonard Leo, who had arranged for an undisclosed free jet trip and fishing excursion for Justice Alito and himself. When the Senate Judiciary Committee requested information about the gifts Leo arranged, we got a letter back from his lawyer, David Rivkin— the same person who conducted the interview that recruited the comment from Justice Alito. Justice Alito’s comments in the Wall Street Journal echoed the exact argument that Rivkin had made when he refused to give us any information—i.e., that Congress has no authority to legislate on or oversee Supreme Court ethics, which is a weird position to take when you consider that the Judicial Conference, which oversees Supreme Court ethics, was created by an act of Congress.

Anyway, the cherry on top of this whole mess, which I flagged also for Chief Justice Roberts in a follow-up letter—which can be found online here—came a month later when another billionaire, who is also alleged to have provided Justice Thomas with undisclosed gifts, cited Justice Alito’s comments as support for his argument that this billionaire didn’t have to answer our questions about those gifts. I sent that letter to Chief Justice Roberts as an addendum to my complaint, and I have not yet heard back.

But it really does seem wrong that a Justice of the Supreme Court would offer an opinion on a matter that might come before the Court that actually relates to a specific, ongoing legal dispute in which the lawyer for a party in that ongoing legal dispute is doing the interviewing; that the person that lawyer represents is a friend and associate of the Justice himself; and that the result of that activity is that gifts to that very Justice are kept from public view, orchestrated by the client. It is a mess.

The last thing we have is a letter that Senator Wyden and I just sent to the Acting Director of the Judicial Conference that relates to the recreational vehicle loan that Justice Thomas received. It appears from the Finance Committee’s investigation that the principal on the loan was never repaid—not a dollar of it; that for a period, interest on the loan was repaid but then interest stopped being repaid. When you stop paying both principal and interest, that amounts to an act of forgiveness of the loan. Yet the forgiveness of that loan was never declared on his judicial ethics filings, suggesting that it might not have been disclosed even in his tax filings, which could lead to a whole second set of legal concerns. Madam President, that letter can be found online here.

It is not fair to expect the Judicial Conference to have done anything about that because it was just sent to them, but with respect to the other things, I would sum it up this way: The score at the Judicial Conference so far is one clear win on getting rid of the Scalia trick; major progress on disclosing who is really behind front group amici; an ongoing review of the billionaire gifts program at the Court as it relates to Justice Thomas in particular; and so far no response on the Alito-Wall Street Journal mischief. Like I said, it is a very reticent place. They move very slowly and have a lot of process.

So I am just going to continue to press along in bringing information before the Judicial Conference so that they and the public can get clear answers on these issues. Certainly, the American people deserve transparency when it comes to fairness and gifts from interested billionaires to Justices of the Supreme Court.

With that, to be continued. I yield the floor.

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Meaghan McCabe, (202) 224-2921

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