Clarence Thomas. But to be fair, free trips and payments have been a problem for a very long time for the justices sitting on the Supreme Court of the United States. To no one’s surprise, Sheldon Whitehouse, who has made no secret of his deep desire to exert control over the co-equal branch of government now that it’s not his friend, seized the moment.
The revelations rankled some Democrats. On April 7, Sen. Sheldon Whitehouse, D-R.I., who chairs the Senate Judiciary Courts Subcommittee, tweeted, “As long as 9 justices are exempt from any process for enforcing basic ethics, public faith in SCOTUS will continue to decline.”
Not that Whitehouse hasn’t done everything in his power to diminish the legitimacy of the Supreme Court, but in this instance, he’s got a point. We expect Supreme Court justices to be as pure as Caesar’s wife. The argument about whether Justice Thomas made a mere oopsie or is dirty isn’t the point, because there’s nothing to be done about it. Sure, the other justices can pull an Abe Fortas and push him to resign, but it’s unlikely they will and unlikely he would resign anyway. The only way to remove Thomas from the Court is impeachment, and that didn’t work well with Samuel Chase and, given the partisanship in Congress, stands no chance of happening.
But why not a code of ethics?
The Judicial Conference, the policymaking body for federal courts, adopted the Code of Judicial Conduct in 1973. It asks judges to uphold canons regarding integrity and independence; avoiding impropriety; fairness and impartiality and extrajudicial activities. It also asks judges to refrain from political activity.
The code is intended as a guide; it doesn’t list penalties for breaches and says not every violation should lead to disciplinary action. Instead, it says disciplinary action should depend on the seriousness of the violation, the intent of the judge who committed it, whether it’s part of a pattern of behavior and whether it affects the judicial system.
As a salutary measure, it already exists, even if not applicable per se to the Supreme Court. It provides guidance and principles by which judges should conduct themselves.
Under rules in the Ethics Reform Act of 1989, which updated a law passed after the Watergate scandal, federal judges — including Supreme Court justices — must annually report all gifts worth more than $415, identify the source of the gifts and disclose travel locations, dates, and expenses for travel-related reimbursements. Judges also must reject gifts from people with business before the court.
This was modified by the Judicial Conference since, and should have included Thomas’ freebies from his “dear friend” Harlan Crow. But Thomas didn’t disclose. So what? The problem is that proposals to impose actual rules, for which there would be sanctions, would seek to put the Supreme Court justices under the auspices of the political branches, violating separation of powers. But even under the judicial branch, who has the authority to investigate, make findings and punish a Supreme Court justice? What court or body would it go before? Where would there be an appeal?
In February, Harvard Law School professor Noah Feldman asked in a Bloomberg News article whether such a code would subject the justices to problematic oversight.
“As a practical matter, a code might encourage politicized harassment of the justices without truly subjecting them to any real source of external authority,” Feldman wrote.
He added that a supervisory body could try to influence the outcome of Supreme Court cases and couldn’t remove justices from the bench. Only impeachment and conviction by the Senate could do that.
As wrong as Justice Thomas’ conduct may have been, even though he was hardly the first to enjoy perks of close friends, what can be done without undermining an array of tenets of our tripartite system of government and making the judiciary subservient to Congress?
*Tuesday Talk rules apply.
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I’d wondered if you were going to go w/ “Playing in the Band”, because of the lyric;
“If a man among you,
Got no sin upon his hand
Let him cast a stone at me
For playing in the band”
Or perhaps the New Riders, “Crooked Judge”.
Still, good choice. I love Cocker’s singing. His voice lends a certain gravitas to anything he sings.
Going off topic here, but, hey, it’s Tuesday Talk.
“Crooked Judge,” hadn’t thought of that one. Going to have to remember that on the outside chance the Admiral writes something about a judge again.
This video is one of my favorites for it’s musicianship and intensity.
Reading down through the comments for this video on YouTube one can see what a phenomenal group of musicians backed Joe here, brought together by Leon Russell, musical director for this band. I never knew that Leon could also play a mean guitar until seeing this video.
If I were a singer/songwriter and Joe covered one of my songs, I would be both sad and happy.
Sad, because the song would no longer be mine. Happy, because royalties.
There’s always been something special about Joe.
“As a practical matter, a code might encourage politicized harassment of the justices without truly subjecting them to any real source of external authority,”
They are already subject to political harassment, though as your Sheldon Whitehouse quote indicates, it seems mostly to come from the left aimed at the conservatives on the bench. And I truly do not think anything Thomas or Kavanaugh could do, short of dying, would lessen the hate the left feels for them.
I think they should have a code of conduct with some way of enforcing it, but I think it has to originate with the Court. I don’t think Congress, or the President can impose a system on them.
Dying twice, painfully.
It seems clear that the only entity that could constitutionally police SCOTUS is SCOTUS, but how that would happen, what sanctions could be imposed, and how that would impact the court on a practical level is hard to figure. It seems painfully obvious that justices should be pure, and yet there seems to be no way short of impeachment to make sure that’s the case.
What a mess.
(Welcome back and feel better)
Where in the Constitution does it say SCOTUS can police itself? It’s Congress that has to do it by impeaching and removing naughty justices. The sanctions include removal. I wouldn’t want anyone to think there’s any hope at all unnecessarily.
Let he who is without sin cast the first stone. Senator Whitehouse has long history of accusing the other team of corruption while ignoring corruption on his side of the aisle and silencingcriticism of his own quid pro quo dealings.
Add in his penchant for veiled threats in amicus briefs and it becomes obvious that he wants a compliant SCOTUS that rules his way and doesn’t actually care whether it is honest or not.
In the Senate, where people are known to become so poor they can barely keep body and soul together.
The code … says disciplinary action should depend on … whether it affects the judicial system.
Is there any evidence to suggest Justice Thomas would have ruled any differently without the largesse bestowed by Crow? In fact, wouldn’t accepting gifts from a fellow traveler makes it less likely that Justice Thomas would succumb to the temptation of being influenced by a less conservative donor?
On the Congressional side, Senator Whitehouse demanding that SCOTUS be subject to specific requirements reminds me of the students demanding that the professors do such and such–or else!
Or else what, Sheldon?
What is it that you think you can do if Clarence Thomas won’t comply with this new set of rules… that you can’t already do now?
Impeachment exists (and is a clear method of dealing with inappropriate shenanigans among the Justices), but if “given the partisanship in Congress, stands no chance of happening”, perhaps we are simply focusing on the wrong problem because ‘something must be done and well… this is something we can do!’.
I’m skeptical that new methods will work to solve the problem when the counterbalance of powers in the system (congress) is fundamentally broken to the point where no penalties can function the way they are designed.
As to the Courts, separation of powers is the feature, not the bug.
Does an institution that relies on legitimacy, not have enough incentive to figure out how to police itself?
The Judiciary has no money or army. Life tenure (supposedly) enables them to be free from influence.
Legitimacy is the only coin in that realm, so I have to wonder as to what is happening inside, such that they can’t find a way to police their own.
Prof. Feldman is likely correct that people would politicize any new rules for purposes not as pure as making sure the judiciary is above reproach (but they’ll also do that anyway).
A republic… if you can keep it, Judge.
In Thomas’s case in particular, requiring that his taxes be done by a (SCOTUS – paid) CPA would go a long way.
Why single out Thomas, if the requirement was a SCOTUS paid CPA do the taxes of one, the CPA should do them all.
But this wasn’t about his taxes, it was about their disclosure forms.
Arr, they be more of guidelines actually. NR reports some interesting coincidental news articles prior to the Pro Publica’s in their April 7 article ‘ProPublica Cherry-Picks ‘Ethics Experts’ on Justice Thomas’s Alleged Disclosure Obligation’. Then Bernie jumped on the bandwagon yesterday.
As our host points out perhaps being familiar with Hamilton’s Federalist 78 the only recourse Sheldon Whitehouse has is impeachment where the political motivation can’t be hidden, including his impending reelection.
(Sorry Bernie, hijacking Whitehouse’s soft target isn’t going to win you the nomination even in a candidate vacuum.)