Supreme Court Ethics, Recusal, and Transparency Act of 2023

Madam President, first, let me thank the chairman of our committee for attempting to bring this bill to the floor and to get us on it. Even though the Republicans have objected to Supreme Court ethics, it is important for us to continue to make the effort because the American people understand that there is something gone very wrong at the Supreme Court.

The objections that we just heard amounted to a long excursion through a great variety of topics: through abortion; through past FBI investigations; through allegations about a two-tiered system of justice; through wokeness; through things we all agree on, like separation of powers and an independent judiciary. I think it would be helpful to actually come into focus on what we are actually talking about here because most of what was said in opposition to this bill is completely irrelevant to what we are seeking to achieve.

We all accept the doctrine of separation of powers. Senator Blumenthal, who is here, is an expert in the subject. He has argued more cases in the Supreme Court than any other Senator. To be clear, our bill does not make the Supreme Court subservient to Congress in any respect. The bill obliges the judicial branch of government to create its own ethics enforcement mechanism that will be run within the judicial branch of government by the judicial branch of government. There simply is not a separation of powers concern when the judicial branch of government runs an ethics program for the judicial branch of government that is administered within the judicial branch of government. It just ain't so.

The existing state of affairs is that the ethics requirements that apply to the Justices of the Supreme Court, first, related to recusal and, second, related to disclosure of gifts are laws passed by Congress.

And the enforcement, particularly of the disclosure requirements, is done by the Judicial Conference. The Judicial Conference is a body established by Congress.

When Harlan Crow first started giving free yacht and jet travel secretly to Clarence Thomas, that question was taken up by the Judicial Conference a decade ago.

Did the Justices complain that the Judicial Conference was investigating Justice Thomas and his disclosures? No, of course not, because the argument would make no sense. So to hear it here on the Senate floor is a bit disappointing. Right now, the Judicial Conference investigates and can sanction or refer for further investigation Justices of the Supreme Court.

We are trying to fix three really simple problems: One is factfinding. Factfinding ought not to be an issue in dispute. Every member of government in the United States who is subject to any kind of supervision or ethics requirement--which is everybody--had a process whereby the actual facts are found of what went wrong. Hell, even the President of the United States had to sit for a factfinding interview about the documents in his garage. It is only nine people in the entirety of the U.S. Government who think that they have no obligation to do any factfinding. And that is pretty dangerous because we just saw Justice Alito offer facts, a description, about what went on behind his family flying MAGA battle flags over their houses that has been proven false by information that is incontestable. Police reports with dates show that he got the order of things wrong. COVID showed that it couldn't possibly have been a schoolbus stop.

So you have erroneous facts offered by Supreme Court Justices with no method to review them. Or they completely ignore the facts. Justice Thomas has refused to ever say a word about what he knew about his wife's engagement in the insurrection while he was adjudicating the rights of those investigating the insurrection.

There is nobody else in the world where somebody doesn't come in and say: Sir, we have a complaint about your conduct, and we are going to need to take a statement from you. This won't take long. I am going to ask you some questions. You will give your answers. At the end, we will ask you to review and sign your statement.

Nothing difficult about that. Nothing against the separation of powers about that. Nothing that Chief Justice Roberts couldn't require right now about that. He could have Supreme Court staff attorneys conduct exactly that kind of work right now, as the chairman has repeatedly pointed out.

Factfinding is a really basic elemental proposition of our American judicial process, and it applies everywhere. It makes no sense for the body ultimately responsible for policing proper judicial process in the United States to not allow itself to participate in that most elemental and fundamental task of there being actual factfinding.

The second is a principle so old it is in Latin, for Pete's sake: ``Nemo iudex in causa sua''; no one should judge their own case. That is pretty easy to understand. And yet we let these Justices alone in the United States--nobody else--get to be the judges of their own ethics. And, obviously, they have failed to measure up.

And the third issue is transparency, disclosure. We know perfectly well that the Justices have failed at their disclosure obligations, and they can't keep their stories straight about meeting their disclosure obligations.

We just had Justice Thomas go back into his previous disclosures to correct them and tell the world and the Judicial Conference, which was reviewing this, that his failure to file was an accidental error. It was ``inadvertent.'' But earlier he had said about the same gift from the same billionaire: Oh, those don't have to be reported. That was personal hospitality from a dear friend.

Well, which is it? Is it personal hospitality that doesn't have to be reported? Or is it something that you knew perfectly well you should have reported, and now you are going back and cleaning up an error that you are claiming is inadvertent?

The disclosure mistakes are inexcusable on their face. Federal officials who commit far less in the way of disclosure mistakes have actually been prosecuted as felons, as misdemeanants, under the criminal law for those similar disclosure violations.

So we need to get this right. All it requires is factfinding and an independent voice so it is not nemo iudex. You are not judging your own cause. Those are really basic principles. That is all we are trying to do.

It would be done by judges within the judiciary. There is no separation of powers issue. That is a complete canard.

And I will close by saying that the Judicial Conference has been helping us in all of this. The Judicial Conference has just blown up Justice Scalia's trick, which was to solicit through intermediaries free vacations from resort owners, and then when the resort owner invited him with a personal invitation, he would pretend that that was personal hospitality because it was a personal invitation, even if he had never met the resort owner. That is a preposterous reading of the personal hospitality exemption. And it is not just me saying that. The judges of the Judicial Conference said: You are right. That is preposterous. That is ridiculous. We are clarifying the rule that that is not acceptable.

And he had done it 60 times. He was a vacation-taking fiend. My Lord.

So the idea that you can trust a Supreme Court Justice, with no independent review, no factfinding, each the judge in his own cause, to follow the rules has been blown to smithereens by the conduct of the Supreme Court Justices themselves. As our chairman is fond of saying: This is a crisis in ethics at the Supreme Court

that the Supreme Court itself has created. It is a crisis in ethics of the Supreme Court that Justice Roberts himself at the Judicial Conference can solve.

But if they are not going to do it, we are going to do what we did before when we set up the Judicial Conference, when we set up the recusal laws, when we set up the disclosure laws. Set up the system, and let the judiciary enforce it.

I yield the floor.

Madam President, for more than a year, the Supreme Court has been embroiled in an ethical crisis of its own design. Story after story about ethical misconduct by sitting Supreme Court Justices has led the news for months.

For decades, however, Justice Clarence Thomas has accepted lavish gifts and luxury trips from a gaggle of fawning billionaires. The total dollar value of these gifts is in the millions--one

Supreme Court Justice, millions of dollars' worth of gifts.

Justice Alito, as well, went on a luxury fishing trip that should have cost him over $100,000, but it didn't cost him a dime because the trip was funded by a billionaire and organized by rightwing kingpin Leonard Leo.

Well, Justice Thomas and Justice Alito failed to disclose gifts they accepted in clear violation of financial disclosure requirements under Federal law.

But it isn't only the shameless conduct that cast a dark shadow over the Court. Time and again, these Justices' actions have cast doubt on their impartiality on cases before the Court.

Last summer, Justice Alito sat for an interview conducted in part by an attorney with a case before the Court. In that interview, Justice Alito went so far as to publicly state that Congress has no authority to regulate the Supreme Court. By doing so, he made it clear that he had already reached a conclusion about the constitutionality of legislation that Congress was considering on the issue--legislation that is before this body today and that could someday come before the Court.

More recently, we learned that flags that were associated with the January 6 insurrection and the far right were displayed outside Justice Alito's home. This happened even as the Court considered cases related to the 2020 Presidential election and the insurrectionist attack on the U.S. Capitol.

Justice Thomas also continues to hear cases related to the January 6 attacks despite his wife's involvement with efforts to overturn the 2020 election.

For years, Justice Thomas served as a fundraising draw at the Koch political network's annual summits. This is the same network that bankrolled another case currently before the Court.

Federal law requires the disqualification of a Supreme Court Justice in any proceeding in which the Justice's impartiality might reasonably be questioned, and the Supreme Court's own code of conduct reiterates that Justices should disqualify themselves in cases where there is reasonable doubt about their impartiality. But despite serious questions about the impartiality of Justice Alito and Justice Thomas in numerous cases, they have refused to recuse themselves from these cases.

The ethics crisis at the Supreme Court, the highest Court in the land, is unacceptable, it is unsustainable, and it is unworthy of the highest Court in the land.

Our faith in the character and impartiality of our judges is essential to the functioning of our legal system and our constitutional form of government, but that faith requires judges--especially Supreme Court Justices--to conduct themselves in a way that inspires public confidence. The Justices should serve as models for every other judge in America. Instead, they are serving as prime examples for why a binding code of conduct is desperately needed for the Supreme Court.

The ethics crisis at the Court stems in large part from the fact that the nine Justices on the Court are the only Federal officials not bound by an enforceable code of conduct--the only Federal officials not bound by an enforceable code of conduct.

More than 12 years ago, I first asked Chief Justice Roberts to adopt a binding code of conduct for all Supreme Court Justices. In November of last year, for the first time in its 235-year history, the Supreme Court adopted an ineffective code of conduct for its Justices. The new code does not reform the Court's ethics rules in any meaningful way, and it does not include an enforcement mechanism to address violations of the code.

As the Court conceded in a statement accompanying the code of conduct's release, the code ``largely represents a codification of principles that we have long regarded as governing our conduct.'' In other words, this so-called new code did not raise the ethical standards to which the Justices would be held; it simply tried to paper over the failed practices of the past.

The Court can address these issues itself. The Court could have issued a stronger code of conduct in the first place. It could revise its own code of conduct today. But Chief Justice Roberts repeatedly refuses to use his authority and power to implement a binding code of conduct for the Supreme Court, and until he does, Congress will continue our legislative efforts.

Last year, the Judiciary Committee, which I chair, reported to the Senate floor the Supreme Court Ethics, Recusal, and Transparency Act. The bill, which was led by Senator Whitehouse, who is on the floor, and which I am cosponsoring, would require the Supreme Court to adopt an enforceable code of conduct and add new recusal and transparency requirements that would be binding on the Justices. It would be a real code of conduct. Importantly, this legislation's ethical and recusal requirements would apply equally to every Justice on the Supreme Court regardless of the party of the President who appointed them.

This should not be a partisan issue. An enforceable code of conduct would be a good thing for the Court and for our country. It is essential to ensuring that the American people have confidence in the ethical conduct of the Supreme Court, and it is essential to restoring the Court's reputation.

The highest Court in the land should not and cannot have the lowest ethical standards. That is why I support this legislation and why I urge my colleagues to join me.

Madam President, notwithstanding rule XXII and as if in legislative session, I ask unanimous consent the Senate proceed to the immediate consideration of Calendar No. 199, S. 359, the Supreme Court Ethics, Recusal, and Transparency Act of 2023. I further ask that the committee-reported substitute amendment be agreed to; the bill, as amended, be considered read a third time and passed; and that the motion to reconsider be considered made and laid upon the table with no intervening action or debate.

Madam President, before yielding to the Senator from Rhode Island, one of the critics of this proposal said it was a solution in search of a problem. The Republican side of the aisle believes, obviously, that for one Supreme Court Justice to accept lavish gifts and luxury trips from billionaires to the tune of millions of dollars and for another Supreme Court Justice to take an undisclosed fishing trip at the cost of

$100,000 is business as usual in the Supreme Court. The American people, I am sure, would disagree.

I yield the floor.

Mr. President, I rise to urge this body to reconsider the objection that was just made by my colleagues.

The rule of law, the system of ordered liberty for which so many Americans have served and sacrificed at home and abroad, is a fragile thing. It is, at times, a mere tissue, and it is held together by the confidence of our people in the ethics and integrity of those whom they elect or who are appointed, nominated, and confirmed to serve them.

We have seen a number of challenging chapters around ethics and integrity in public service recently, but, tonight, we are on this floor to speak about our Supreme Court and a simply shocking series of revelations about ways in which Justices have accepted, over years, huge amounts of gifts.

The suggestion has been made by a number of my colleagues that this is just Democrats, that this is just a partisan attack on a few Justices to try and roll back or undermine decisions they have made that we dislike or their legitimacy. Well, I can give you a compelling counterpoint.

My friend and colleague Senator Cornyn and I have seen a whole series of stories in the Wall Street Journal in 2021 that revealed that there were dozens of Federal judges who had stock holdings in companies where issues before them implicated the value of that company. It moved us to introduce the bipartisan Courthouse Ethics and Transparency Act.

Your typical bill takes 6, 7, 8 years to become law here in the Senate. This one moved faster than almost any other. On the Senate Judiciary Committee and here on the floor of the Senate, nobody argued that the Supreme Court needed to be above it all. Nobody argued that the Justices of the Supreme Court shouldn't be required to disclose their stock holdings and be accountable for their failures to recuse or disclose. In fact, that bill passed unanimously. Why, then, is this one not similarly situated?

Every Federal judge is subject to a binding code of ethics. Every Senator and virtually every Federal employee in a senior decision- making role is bound by a code of ethics. That is how the American people know that, if there is some sleight or false, some self-dealing or some action that creates the appearance of impropriety, action will be taken.

After months and months and months of reports of misconduct, failure to disclose, questionable conduct by a Justice or two of the Supreme Court, a recent poll by Marquette shows that a majority of the American people have lost faith in this institution and no longer have confidence in the political independence and the ethics of our Supreme Court.

Mr. Chief Justice, I hope you listen or watch. We believe you to be concerned about the legitimacy of this important institution.

The Supreme Court is the only Federal Court not bound by a code of conduct that is enforceable and where these disclosures and their consequences cannot be acted upon.

The highest Court in our land should not have the lowest ethical standards, and we should take a vote on this bill, the Supreme Court Ethics, Recusal, and Transparency Act. It should not be

controversial or partisan. This isn't about attacking one Justice or another.

As someone who clerked for a Federal judge, as someone whose chief counsel clerked for a Federal judge--many of us are lawyers in this body and clerked for Federal judges. We know the importance of having an independent judiciary, of having a nonpartisan judiciary.

The most powerful court in the land is the Supreme Court. When it issued landmark decisions unanimously, it moved the arc of history. Today, it issues decisions after decisions that are 5-4 and that are producing challenging secondary waves in our body politic.

If the Supreme Court is to hold the role that our Framers intended, it must do so above reproach. That is not where we are today.

Our Supreme Court must make itself accountable to the American people. We shouldn't read disclosure after disclosure in the press to learn about the conduct of the Justices.

Just a few moments ago, earlier this evening, along with the rest of the Delaware delegation, I had the honor of meeting with the newest nominees to our Nation's service academies--young men and women who are raising their right hand and volunteering to serve our Nation, who will be granted the opportunity of a free education, in exchange for which they sign on the dotted line and agree to go serve our Nation at home and abroad and to defend our Nation and our Constitution from all enemies foreign and domestic.

I have just completed a trip to the South Pacific, where I visited Manila. There, there is a World War II cemetery. It includes crosses marking the graves of 17,000 Americans who served and sacrificed in the convulsion that was the Second World War.

Those crosses do not have marked on them ``Democrat'' or ``Republican.'' The freedom for which they fought, the system of justice, the rule of law, the Constitution for which they took up arms against Imperial Japan, and worked so tirelessly alongside our allies to free a world under assault from fascism and imperialism--they did not do so based on a sense of partisan principles but out of a commitment to our Nation. We should honor those who served and sacrificed in a generation or two ago and those who are willing to serve and sacrifice today going forward by restoring ethics and transparency to the U.S. Supreme Court.

They have cast a shameful shadow, not just the appearance of impropriety but a genuine conflict. It can be resolved. We must help them take the action they should take and resolve it. We should pass this bill.

With that, I yield the floor.

Mr. President, my colleagues on the Republican side have made the assertion that this legislation would interfere with the independence of the judiciary. That is a serious assertion, and it deserves to be respected and responded to.

The judiciary is an absolutely vital branch of government that is independent. It is independent in the process by which it makes decisions that come before it for its decision. That is where it is independent. As much as I disagree with many of the decisions of the Supreme Court, that Court has the right, without interference from Congress, to make the decisions it makes.

There is absolutely nothing in this legislation that interferes with the judicial power that the Court alone exercises in considering cases and making decisions--there is absolutely nothing--and to have our colleagues suggest that this legislation would do that is flat-out wrong.

What this legislation responds to is the conduct of individual Justices that is, you know, frankly, pretty shocking. You get a call: Hey, there is a yacht that needs you on board. Hey, don't worry about how to get there; we have a private plane. Hey, don't worry--if you didn't come, that seat would be unoccupied.

The Justice actually does it. They get on that plane and go, and they get on that yacht.

Hey, by the way, we are having a fishing trip. It is in Alaska. It is really cool. Let's go. There is an empty seat. Why don't you come. It is worth $100,000, but it doesn't have to be reported.

You know, when we talk about a code of ethics for the Supreme Court-- and these are some of the examples of why it is needed--my constituents from Vermont say: Peter, what are you talking about--a code of ethics? They can get away with that? They can do that? They can take this free trip?

It is really, really shocking.

You know, my colleague from Connecticut said it right: The Chief Justice has not only the authority but the responsibility to deal with the problems of behavior on his own Court, and he is not doing it. He is not doing it.

Another point that my colleagues make that I am in 100 percent agreement with is that we need a Supreme Court that has the credibility and confidence of this country. We face very difficult decisions that are quite contentious and that divide America, and when those are contested and they go to the Court and the Court renders a decision that all of us have to abide by whether we were on the winning side or the losing side, we absolutely must have a Court that has credibility. The credibility has to be, if it is going to be enhanced by the Court, by following codes of conduct and by giving the American people confidence that they are on the level. They are not doing it.

These free trips, these private planes, the private yachts--that is just self-serving and, frankly, gross. Who has the opportunity to take those trips in the jobs they do?

By the way, this is an important job they have, but it is a job. You know, you do your job. You get your paycheck. You show up for work. You treat the people you work with decently. But you don't have some expectation because of the particular job you have of getting free special trips just because you are ``important.'' That is not part of the deal here. That is not constitutionally protected. That

is not anything to do with the independence of the judiciary. That is just about venal, self-serving conduct by people who happen to have a lifetime appointment.

The other point here that is really, truly shocking and astonishing is that we have got over 800 judges--circuit court, appellate court, bankruptcy judges--and they have a code of conduct. They can't do this. There are only nine folks who can do it, and they are on the Supreme Court. They should have the highest standards that apply to them, self- imposed. They have no standards.

This is the Supreme Court eroding the confidence the public--all of us, whichever side of the decision we are on--is entitled to have from the people who have that lifetime appointment, and they are squandering it. They are turning a blind eye to the needs of the people they serve.

This ethics legislation is unfortunately necessary because the Supreme Court will not do what it has the responsibility to do. The Chief Justice of the U.S. Supreme Court will not face down colleagues on that Court who are just disregarding normal rules of decency.

So I say to the Presiding Officer and my colleagues and I say to my colleagues on the other side of the aisle: All of us should be doing everything we can to restore confidence in the judiciary. This is step one.

I yield the floor.

Mr. President, I want to thank my colleagues Senator Durbin and Senator Whitehouse. I have been proud to be part of their team in working for the most minimal kind of ethical standards for the highest Court in the land. Right now, that Court has no enforceable code of conduct, unlike any other court in the Federal system, unlike any other branch of government. It is so elemental as a matter of simple ethical conduct and appearance.

The Supreme Court has squandered its almost mystical authority, its unique power in the Federal Government. In a sense, that power was not envisioned by the Founders. The idea of judicial review came after the Constitution was written. We can thank Justice Marshall for the idea that the Supreme Court can literally strike down what we do here. It is the most powerful branch of government--not the least dangerous but the most powerful.

Think of it for a moment. In a democratic republic, it is unelected; it has life tenure. Nobody can tell a Justice: You are too old to do this stuff anymore. It is the most anti-democratic or undemocratic institution in a democratic system of government that you could possibly imagine. So its power is really dependent on its adherence to standards of integrity to gain respect and credibility. It has no army. It has no police force. People follow those orders that it issues because its wisdom and integrity have gained respect.

This Supreme Court is different than any other we have seen, and it is not just two Members of the Supreme Court; it is the institution as a whole that is responsible, and it is the Chief Justice of the Court that is most responsible.

So I ask Chief Justice Roberts: Please endorse this legislation not just for the sake of your legacy--we know Chief Justice Roberts cares about his legacy--but for the sake of the Court.

This Court is doing things and its Justices are committing errors of extraordinary misjudgment--not to mention the corrupt taking of gifts and trips and all the rest--that are, to use my colleague's words, blowing to smithereens the credibility and trust that this Court needs. It needs it for its decisions to be followed and respected.

What we are doing here is very simply saying to the Court: You must have a code of conduct that is enforceable.

We are not telling them what to do. We are not telling them to decide a case in one way or another. We are not interfering with their docket. We are not in any way affecting the substantive decisions of the U.S. Supreme Court. It is simply telling them to conduct themselves as public officials--whether they take gifts, whether they go on trips paid by somebody else, whether they accept tuition grants. It is common sense. You don't need to be a law school graduate to understand it.

In fact, this idea is more comprehensible and more impactful to the folks who go to work every day. Nobody gives them college tuition. Nobody takes them on private jets to islands that cost thousands of dollars to reach. To the ordinary American, the everyday American, this legislation not only makes sense, I think most people assume there already is legislation like the one we are debating today.

I am not going to belabor the specific provisions of this bill, but I believe that we are going to have to go further. I think there ought to be an inspector general for the courts as a part of the Judicial Conference, just like there is in other government entities. I think there has to be Court reform that casts light on the shadow docket. There are a series of reforms, and some are a lot more draconian in their scope, but this act is simple in requiring disclosure rules for gifts, travel, and income that are at least as strict as those we comply with here in Congress; a code of ethics; recusal--and Alito and Thomas should have recused themselves long ago from decisions involving Donald Trump.

This comprehensive judicial ethics legislation is long overdue, and my biggest regret as I stand on the floor of the Senate today is that it is not bipartisan, because it should be.

I have argued four cases before the U.S. Supreme Court. I have been a law clerk there. I have immense respect, unshakable respect, for the institution--the institution. I have reverence for what it reflects in America. Sadly, the Court has inflicted wounds on itself that will be difficult--and my fear is, impossible--to repair, but this measure will at least begin that process.

I yield the floor.