Senate Judiciary Committee Chairman Dick Durbin’s (D-Ill.) call for Chief Justice John Roberts to testify before Congress about the Supreme Court’s ethical standards is sparking a firestorm on Capitol Hill as Republicans accuse the Democratic chairman of trying to ensnare court in a media “circus.”
Republicans say Durbin is trying to pressure Roberts to respond to reports by ProPublica that conservative Justice Clarence Thomas failed to properly disclose the gifts he received from a Texas billionaire, including private jet travel and the sale of a property in which Thomas owned a third interest.
They point out that it’s extremely rare to call on a sitting chief justice to testify before Congress and that when it happens, it’s usually before the Senate or House Appropriations Committees to discuss the court’s annual budgetary needs.
“I would not recommend that the chief accept his invitation because it will be a circus,” Sen. John Cornyn (R-Texas) said.
Cornyn, a senior member of the Judiciary panel, said he couldn’t remember a chief justice being called to the Judiciary Committee before.
Senate Republican Whip John Thune (S.D.) said the Supreme Court should be allowed to handle its internal affairs without interference from Congress.
“They’re their own independent branch of our government. They have always set their own rules when it comes to the way they conduct themselves there. I prefer to leave it that way,” he said.
Sen. Josh Hawley (R-Mo.), another member of the Judiciary Committee, said Durbin “is trying to pressure the court.”
“You read the letter … all the rhetoric — ‘loss of faith in your institution’ — it’s trying to turn the screws on him,” he said.
Hawley said it’s not a constitutional crisis but “it’s inching toward that.”
The Missouri lawmaker warned it would be “a nuclear option” if Democrats on the Judiciary Committee subpoena Roberts.
Sen. Richard Blumenthal (Conn.), a Democratic member of the Judiciary Committee, on Tuesday suggested issuing subpoenas for Thomas and his wealthy friend Harlan Crow, who took the conservative justice on lavish vacations, to testify before the committee.
Democrats on the panel, however, would have to wait for 89-year-old Sen. Dianne Feinstein (D-Calif.), who is recovering from shingles, to return to the Senate before regaining a functional majority and the power to subpoena witnesses.
Senate Democrats may use their power of the purse to compel Roberts to answer their questions about whether the court is enforcing ethical standards for justices.
Sen. Chris Van Hollen (D-Md.), the chairman of the Senate Financial Services and General Government Subcommittee, which has oversight of the Supreme Court’s appropriations, said “we’re exploring all our options right now” when asked whether he would call on Roberts to testify.
Van Hollen said earlier this month it was “unacceptable that the Supreme Court has exempted itself from the accountability that applies to all other members of our federal courts.”
And he vowed to “seek to use the appropriations process to ensure that the Supreme Court adopts a code of conduct similar to that which applies to other members of the federal bench.”
The Supreme Court in its 2011 year-end report said it had “no reason” to adopt the Judicial Conference’s code of conduct, which applies to every other judge in the federal judiciary as “its definitive source of ethical guidance.”
Durbin on Thursday invited Roberts or another justice he might designate to appear before the committee during its May 2 hearing on the ethical rules governing the Supreme Court and potential reform of those rules.
Durbin wrote in his letter to Roberts that over the past decade, “there has been a steady stream of revelation regarding justices falling short of the ethical standards expected of other federal judges and, indeed, of public servants generally.”
He also argued there is “ample precedent” for sitting justices to testify before Congress on matters including ethics and noted his panel last heard testimony from justices in October 2011.
The escalating confrontation is the latest in a series of battles between Senate Democrats and Republican-appointed nominees and members of the high court stretching back three decades.
Thomas’s contentious 1991 Senate confirmation battle, which centered on Anita Hill’s sexual harassment allegations, set the tone for justice’s tense relationship with Democratic lawmakers over the next 30 years.
Judiciary Committee Democrats wrote to Roberts in 2012 urging the court to adopt a judicial code of conduct after reports at the time that Thomas had accepted favors from Crow.
Liberal-leaning watchdog groups including Common Cause, the Center for Media and Democracy, and Citizens for Responsibility and Ethics in Washington raised concerns more than a decade ago about the travel and gifts Thomas accepted from Crow, as well as the outside income and political activities of his wife, Ginni.
Senate Majority Leader Chuck Schumer (D-N.Y.) called on Thomas last year to recuse himself from any cases about the Jan. 6, 2021, attack on the U.S. Capitol after it was reported that his wife urged former President Trump’s chief of staff, Mark Meadows, to try to overturn President Biden’s victory in the 2020 election.
Sen. Ted Cruz (R-Texas) accused his Democratic colleagues of conducting a “smear” campaign against Thomas and claimed Thomas has drawn more fire from liberals than other judges because he is a Black conservative.
“I don’t believe that Senate Democrats are proceeding in good faith. I think many of them are seizing on the opportunity to attack a Supreme Court justice who is the leading conservative on the court, the leading defender of religious liberty and the Second Amendment,” he said.
“They reserve a particular animosity for Justice Thomas because he’s Black. Justice Scalia was every bit as conservative as Justice Thomas and yet the left didn’t loath Justice Scalia the way they loath Justice Thomas,” he said, referring to late conservative Justice Antonin Scalia.
He then added, “Today’s left views it as an apostasy for an African American to dare to hold conservative views.”
The Texas senator, a member of the Judiciary Committee, said other justices “have accepted hospitality, have traveled to people’s homes.”
Carrie Severino, who heads JCN, a conservative activist group, pointed out that former liberal Justice Stephen Breyer took “225 trips just in a 20-year span alone that was subsidized travel.”
“Do I think this changed his vote in any case? No. Was he in his rights to [travel?] Absolutely,” she said. “This is something that is being weaponized as an attempt to attack Justice Thomas.”