Wall Street Journal: Senators Introduce Bipartisan Bill Mandating Code of Ethics for Supreme Court

Angus King and Lisa Murkowski co-sponsor legislation following media reports on two justices’ finances

WASHINGTON—Sens. Angus King (I., Maine) and Lisa Murkowski (R., Alaska) will introduce a bipartisan bill Wednesday that would require the U.S. Supreme Court to create its own code of conduct within a year, following media reports that raise questions about whether Justices Clarence Thomas and Neil Gorsuch properly disclosed their financial activities.


“It’s pitiful that we’re having to introduce this bill—it’s pathetic that the Supreme Court hasn’t done this itself,” Mr. King said.


The senator, who caucuses with the Democrats, noted that every other federal judge is subject to a code of conduct. “And by the way, we’re not prescribing what the standard should be,” Mr. King said. “We’re just saying, ‘Do it yourself, and then be sure that there’s someone to keep track of it and that there’s some transparency in reporting.’”


The King-Murkowski bill is more modest than legislation introduced in February by Sen. Sheldon Whitehouse (D., R.I.) and Rep. Hank Johnson (D., Ga.), which in addition to requiring the court to adopt a code of conduct would tighten disclosure and recusal requirements for justices and for interest groups that file briefs with the court. It also would establish an investigative board made up of the chief judges of each circuit to review complaints against justices.


With Mr. Whitehouse’s bill having no Republican co-sponsors, Sens. King and Murkowski said their more targeted legislation might have a greater chance of passage in a deeply divided Congress, where few issues can attract bipartisan support.


“How are we going to make sure that, to the fullest extent possible, this is not viewed as a partisan hit?” Ms. Murkowski said. “I think that a more narrow approach…is one that will garner more bipartisan support for this.”


For years, lawmakers from both parties have called upon the justices to adopt more stringent conduct rules, to little effect. At a 2019 House appropriations hearing, after sexual-harassment allegations led to the resignation of an appeals court judge, Justice Elena Kagan said Chief Justice John Roberts was considering whether to have a code of conduct drafted for the Supreme Court.


“It’s something that’s being thought very seriously about,” she said at the hearing. The court has provided no updates on the project since then.


Attention on the court’s ethics rules flared up again this month, after the nonprofit news outlet ProPublica reported on lavish vacations Texas billionaire Harlan Crow provided Justice Thomas and his wife, Virginia Thomas, and later reported that Justice Thomas and his relatives had sold Mr. Crow the house where Justice Thomas’s mother lives.


Justice Thomas said in response to the vacations story that he thought he wasn’t required to report the trips under an exception for personal hospitality. He hasn’t responded to a request for comment on the sale of his mother’s house.


This week, Politico reported that the law firm Greenberg Traurig LLP’s managing partner, Brian Duffy, purchased Colorado property co-owned by Justice Gorsuch shortly after he was confirmed to the court in 2017.


Although Justice Gorsuch’s annual disclosure form reported income from a limited liability company that held title to the property, the buyer’s name wasn’t included.


Justice Gorsuch didn’t respond to a request for comment.


Mr. Duffy said he didn’t know Justice Gorsuch was part owner until after touring the property and making an initial offer.


“The fact that he could become a Supreme Court justice was irrelevant to our decision to move forward. I have never spoken to Justice Gorsuch, appeared before him or met him. It is a wonderful home and stretch of the Colorado River, and we are glad we bought it,” Mr. Duffy said in a statement.


The Senate Judiciary Committee is scheduled to hold a hearing on Supreme Court ethics reform May 2. Sen. Dick Durbin (D., Ill.), who chairs the panel, has invited Chief Justice Roberts, or another justice designated by him, to testify.


In a letter Tuesday to Mr. Durbin, Chief Justice Roberts declined to appear at the hearing. “Testimony before the Senate Judiciary Committee by the Chief Justice of the United States is exceedingly rare, as one might expect in light of separation of powers concerns and the importance of preserving judicial independence,” he wrote.


Mr. Durbin responded that his invitation had been “an attempt to include the Court in this discussion. But make no mistake: Supreme Court ethics reform must happen whether the Court participates in the process or not.”


By law, Supreme Court justices must recuse themselves from hearing cases in which their impartiality might reasonably be questioned. In practice, justices typically sit out cases involving companies in which they hold stock and appeals from cases they participated in as a lawyer or heard as a judge before joining the Supreme Court.


A code of conduct that exists for federal judges doesn’t apply to Supreme Court justices, though justices have said they consult that document for guidance.


The bill being introduced by Mr. King and Ms. Murkowski—the Supreme Court Code of Conduct Act—would require the high court to name an official tasked with reviewing any possible violations of the new code, or federal laws, by the justices. The official would process complaints or tips submitted by members of the public and publish a report every year on the court’s website, detailing any allegations and the actions taken in response.


The three-page bill text also states that the marshal of the Supreme Court, in consultation with the court and the newly appointed official, could commission federal personnel or businesses to assist with investigations into possible misconduct by justices or their staff.


The provision authorizing the court to investigate itself is a codification, to at least some degree, of current practice, Mr. King said. “But it makes it clear that this is part of the responsibility and part of the ability of the court to police its own actions,” he said.


Mr. King and Ms. Murkowski said the changes were needed to restore flagging public trust in the Supreme Court’s integrity.


A September Gallup poll showed Americans’ approval of the Supreme Court falling to record lows, with 40% saying they approved of the job the court is doing and 58% saying they disapproved.


The King-Murkowski legislation gives senators a bipartisan option to consider alongside Mr. Whitehouse’s broader Supreme Court Ethics, Recusal, and Transparency Act, and another bill offered by Democratic Sen. Chris Murphy of Connecticut: the Supreme Court Ethics Act.


The Murphy bill, which is sponsored in the House by Mr. Johnson, would require the Judicial Conference of the U.S. to issue a formal ethics code that would apply to the Supreme Court. It directs the appointment of an Ethics Investigations Counsel that would receive complaints of unethical conduct and publish regular reports, and would be empowered to conduct investigations into potential violations. In addition, the bill would require justices to provide public explanations for recusals.


Mr. Murphy’s bill, like Mr. Whitehouse’s, has only Democratic co-sponsors.


Mr. King and Ms. Murkowski said they thought a bipartisan approach would improve the bill’s chances of getting the votes necessary to pass in the narrowly divided Senate, which requires 60 votes to advance most legislation, and the GOP-controlled House.


“Particularly with this, it should not be viewed as, you know, Democrats are piling on Thomas because he was appointed by a Republican. Or vice versa, if it was a justice that had been appointed by a Democrat,” Ms. Murkowski said. “It should not be a partisan issue, plain and simple.”

By:  Lindsay Wise and Jess Bravin
Source: Wall Street Journal