June 21, 2023

In Wake of Cascading Supreme Court Ethics Scandals, Whitehouse Chairs Courts Subcommittee Hearing on his Comprehensive Supreme Court Ethics, Recusal, and Transparency Act

Washington, DC – Yesterday afternoon, Chairman Sheldon Whitehouse (D-RI) led the Senate Judiciary Subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights in a hearing entitled, “Ensuring an Impartial Judiciary: Supreme Court Ethics, Recusal, and Transparency Act of 2023.”  The hearing examined how Whitehouse’s Supreme Court Ethics, Recusal, and Transparency (SCERT) Act would help restore the American public’s sinking trust in the Supreme Court by fortifying regulations regarding judicial conflicts of interest and recusal.  

The Senator’s bill would end the practice of Supreme Court justices judging their own conflicts of interest, require better disclosure and transparency so the public knows when a justice has a connection to a party or amicus before the Court, and require judges to explain their recusal decisions to the public. 

“The Chief Justice is right that there are plenty of ways the Court could fix its ethics problems.  Bogus ‘personal hospitality,’ obvious conflicts of interest, phony front-group amici—these are all areas ripe for repair.  As Chairman of this Subcommittee, I’ve pointed out these problems and offered up solutions more times than I can count.  But still we wait for the Court to do something, anything, to show that it takes its ethics seriously,” said Chairman Whitehouse.

“If the Supreme Court isn’t going to do anything to restore the public’s trust, then it’s up to us in Congress.  Today, we’re going to talk about real solutions to real ethics problems—the Supreme Court Ethics, Recusal, and Transparency Act,” continued Whitehouse.

“Today’s hearing will focus on how this bill would address recusals and conflicts of interest.  From the very first days of this republic, Congress has regulated judicial conflicts of interest to help preserve the judiciary’s integrity.  Recusal and conflicts laws on the books expressly apply to the Supreme Court.  It’s time for Congress to step back in to fortify the administration of these laws,” added Whitehouse. 

Video: Whitehouse Opens Courts Subcommittee Hearing Examining his Comprehensive Supreme Court Ethics Bill

Whitehouse’s comprehensive, bicameral SCERT Act, co-led by Congressman Hank Johnson (D-GA-04), Ranking Member of the House Judiciary Courts Subcommittee, was endorsed by The New York Times editorial board in April.  The legislation would create a much-needed process for investigating misconduct at the Court, strengthen recusal standards for judges and disclosure rules for special interests trying to influence the courts, improve disclosure of travel and hospitality for judges, and mandate creation of a binding code of ethics.  The SCERT Act has 21 cosponsors in the Senate.

 

“I applaud the legislation before the Committee, and the sustained efforts to bring us to this day.  The Supreme Court Ethics, Recusal, and Transparency Act would protect litigants, promote public confidence in the judiciary, and do so without jeopardizing the Court’s decisional core independence.  The legislation is necessary, measured, and constitutional,” testified Hofstra University School of Law Professor James Sample.

“Despite having the power of judicial review and enjoying life tenure, federal judges have substantially fewer ethical checks than their counterparts in the legislative and executive branches.  And the highest court in the land has the lowest standards regarding conflicts and recusals.  It is now abundantly clear that the justices cannot or will not effectively regulate themselves.  Your favorite liberal icon and your favorite conservative hero on the Court need binding ethics rules that include a transparent and independent recusal process.  The SCERT Act does just that,” testified Donald Sherman, Executive Vice President and Chief Counsel for Citizens for Responsibility & Ethics in Washington.

In May, the Judiciary Committee held a full committee hearing entitled, “Supreme Court Ethics Reform.”  The hearing was co-led by Whitehouse and Judiciary Committee Chairman Dick Durbin (D-IL), and emphasized the clear need for reform and examined common sense proposals to hold Justices to – at minimum – the same ethical standards as every other federal judge or high-ranking official in the federal government.  Whitehouse’s Courts Subcommittee held a hearing later in May, entitled, “Review of Federal Judicial Ethics Processes at the Judicial Conference of the United States,” that examined the Judicial Conference’s handling of previous ethics complaints against Supreme Court Justice Clarence Thomas dating back to 2011. 

Video of the full hearing can be found here.  Text of Whitehouse’s as-delivered opening remarks is below, and video of the remarks can be found here.

 

Two weeks ago, in a speech to the American Law Institute Chief Justice Roberts said he “wanted to assure people” he was “committed to making certain” that the Supreme Court would “adhere to the highest standards of conduct.”  More important, the Chief Justice acknowledged the Court has more to do, that justices are “continuing to look at things [they] can do to give practical effect to that [ethics] commitment,” and that he’s “confident that there are ways” to do that, ways to do more.

The Chief Justice is right that there are plenty of ways the Court could fix its ethics problems.  Bogus “personal hospitality,” obvious conflicts of interest, phony front-group amici—these are all areas ripe for repair.  As Chairman of this Subcommittee, I’ve pointed out these problems and offered up solutions more times than I can count.  But still we wait for the Court to do something, anything, to show that it takes its ethics seriously.

The American people are tired of waiting.  A new poll released the same day as the Chief Justice’s remarks shows that almost 60% of Americans disapprove of the way the Supreme Court is doing its job, and that Americans more likely to think that the justices’ honesty and ethical standards were “low” or “very low.”  For an institution that depends on the public’s faith to carry out its functions, that is unsettling territory.

If the Supreme Court isn’t going to do anything to restore the public’s trust, then it’s up to us in Congress.  Today, we’re going to talk about real solutions to real ethics problems—the Supreme Court Ethics, Recusal, and Transparency Act.  This Committee has covered at past hearings how the bill would address problems like Justice Thomas’s failure to disclose gifts and travel from a billionaire Republican donor.  We’ve also discussed how my bill would create a transparent process for enforcing ethics rules at the Court.

Today’s hearing will focus on how this bill would address recusals and conflicts of interest.  From the very first days of this republic, Congress has regulated judicial conflicts of interest to help preserve the judiciary’s integrity.  Recusal and conflicts laws on the books expressly apply to the Supreme Court. 

It’s time for Congress to step back in to fortify the administration of these laws.  Case in point: for more than a year now, Justice Thomas has refused to recuse from cases involving January 6 or the 2020 election.  In the first instance, Justice Thomas voted to stop the January 6 Committee from getting access to White House communications that may have included Justice Thomas’s wife’s texts to the White House chief of staff about overturning the 2020 election.  The lawfulness of that failure to recuse depends on a fact: what did Thomas know about his wife’s insurrection activities, and when did he know it?  After more than a year, Justice Thomas has still never been obliged to answer that question.  We don’t know the answer to that essential fact.  In no other court would such an essential question of fact go unanswered.

Questions of recusal and conflict of interest are intertwined.  So we need to know more about front groups that helped appoint Trump’s justices and then appear as litigants before those same justices.  And recent reporting shows ties among right-wing operative Leonard Leo, billionaire megadonor Harlan Crow, and Justice Thomas.  Again, often implicated in the filing of amicus briefs without links disclosed.  To these concerns and others, the response of the Court has been secrecy and silence.

My bill would end the practice of Supreme Court justices judging their own conflicts of interest, require better disclosure and transparency so the public knows when a justice has a connection to a party or amicus before the Court, and require judges to explain their recusal decisions for everyone to see. 

As we hear from today’s witnesses about why these reforms are needed, we should all keep in mind a maxim so old that it’s in Latin: nemo judex in sua causa.  No one should be a judge in their own case.

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