[Congressional Record Volume 169, Number 30 (Tuesday, February 14, 2023)]
[Senate]
[Pages S377-S379]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
U.S. Supreme Court
Mr. WHITEHOUSE. Mr. President, I am back today now for the 20th time
to shed a little light on the dark money scheme to capture and control
our Supreme Court.
Part of what allows that scheme to flourish is the ethics-free zone
around the Supreme Court. It is quite unique. So let's look at it.
The last time I gave this speech, No. 19, I walked through the
various problems with how the Supreme Court handles allegations of
misconduct by the Justices.
The short answer is that it doesn't.
The U.S. Supreme Court is the only court in the country not covered
by an ethics code. And worse than that, it is the only part of the
Federal Government that has no process for ethics investigation and
enforcement--none.
Now, any meaningful ethics regime contains three things: first, a
process for receiving complaints; second, a process for investigating
those complaints once they are received; and, third, a process for
reporting the result and holding powerful people accountable should
those complaints turn out to be merited.
The House and the Senate, for instance, we have our Ethics
Committees. The executive branch has inspector generals and the
attorney general. The Federal courts, except the Supreme Court, have
their own investigative procedures. It is just the Supreme Court that
has none. The closest you get is probably a motion to recuse.
Let's start with the difficulty of raising ethics complaints with the
Supreme Court. People who are concerned about ethics violations over at
the Court have to get pretty creative because the Court has no place to
submit
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an ethics complaint. If you like, there is no inbox.
We saw this play out when Judge Kavanaugh became Justice Kavanaugh.
Multiple ethics complaints were pending against Judge Kavanaugh. The
lower courts, like the DC Circuit that he was sitting on, do have a
process for receiving complaints and for investigating them; and
pursuant to that process, a special panel was appointed to review the
complaints against Judge Kavanaugh.
But as soon as Judge Kavanaugh squeaked onto the Supreme Court as
Justice Kavanaugh--poof--the lower courts lost jurisdiction over him,
and the complaints had to be dismissed mid-investigation.
Now, the complaints could have been refiled up at the Supreme Court,
but there was no place to file them.
We saw the problem again when a man named Robert Schenck sent Chief
Justice Roberts a letter explaining how he learned, after a donor's
private dinner with Justice Alito and his wife, how the Supreme Court
was going to rule in the Hobby Lobby decision.
Apparently, a letter directly to the Chief Justice isn't a proper way
to lodge a complaint because Schenck never heard back from the Court.
Months later, Schenck then went to the New York Times, which was
following up on an earlier POLITICO story about Schenck's covert
lobbying campaign to have wealthy rightwing donors invite some of the
Justices to meals, to their vacation homes, or to private clubs.
It took the press, the fourth estate, to fill in the investigatory
gap about that $30 million wining and dining campaign.
More recently, a former coworker of the Chief Justice's spouse
alleged ethics problems with the Chief Justice's failure to disclose
financial connections between his spouse and parties and law firms
appearing before the Court. With no mechanism to ask the Supreme Court
to review whether this arrangement presented a conflict, the former
coworker sent his complaint around to congressional offices in hopes
that someone might take it seriously somewhere.
Again, the complaint made it to the fourth estate; and, again,
without an inbox at the Court or a process, it took journalists to give
the inquiries an airing.
Set aside the merits of these complaints, the point is: They never
got in the door for the Court's consideration. The Court's refusal to
receive ethics complaints is unique to the Supreme Court, and I submit
it is not serving the institution well. So even if there were an inbox
for an ethics complaint, the Court still has no process to investigate
it.
Turn back to Mr. Schenck. After the New York Times reported on his
allegation, there was understandable public uproar.
Chairman Hank Johnson and I wrote to the Court as Courts subcommittee
chairs to ask whether it was investigating the allegations. After
months of silence, amid growing public clamor, the Court did something
it almost never does: It acknowledged the accusations.
Mr. President, I have a two-page letter from the Court's legal
counsel, which I ask unanimous consent to have printed in the Record at
the conclusion of my remarks.
In that letter, the Court said the equivalent of: Justice Alito says
he didn't leak the decision, and that is good enough for us. No mention
in the letter of the lobbying campaign or of private wining and dining
and no description of anything resembling an actual investigation.
I have been the attorney general of my State, a position that has
criminal jurisdiction across the entire State. Only three attorneys
general in the country have that; Rhode Island is one of them. I have
been the United States attorney for my State and led Federal
investigations. I know a little bit about investigations.
It is ``investigation 101'' to take statements from witnesses. That
is how you make a record, and that is how you deter lying: by tying
people to a statement so they can be held accountable if it turns out
that the statement is false. No sign in the letter that that was done.
Same again with Justice Thomas regarding his refusal to recuse
himself from cases implicating his wife's efforts at overturning the
2020 election.
Back in January 2022, Justice Thomas participated as the lone
dissenter in a decision that allowed the House January 6 Select
Committee access to records from the Trump White House. And a couple of
months later, it turned out that Justice Thomas's wife had texted with
White House officials repeatedly about overturning the 2020 election.
So she was clearly covered by that investigative effort by the January
6 Commission.
He did not recuse; and, indirectly, it was suggested that Justice
Thomas knew nothing at all about his wife's activity, so he didn't need
to recuse.
OK. But that is a fact question. What did Justice Thomas know about
his wife's activities at the time of the case? Easy to ask him. Easy to
take a statement from him. But no sign that that was done. So, of
course, no statement and no consequences.
Later, after the reporting about Justice Thomas's wife's activities
came out in the public press and he failed to recuse himself in another
case, the issue was no longer just a fact question about what Justice
Thomas knew, he was now on notice about his wife's conduct, and he
still did not recuse.
Why not? Again, no justification, no investigation, no conclusion.
The Court has repeatedly failed to investigate or even acknowledge this
glaring problem, which brings us to the third element of an effective
ethics regime: accountability and transparency--a report at the end.
An investigation ought to be designed to get to the truth and to
report its findings so that people can be held accountable for
wrongdoing and the public can have confidence in the outcome.
That is a statement so obvious I find it hard to believe I actually
have to say it here about the Court.
The one investigation we have seen the Supreme Court undertake was
done in response to the Alito draft opinion leak. As an investigation,
it was pitiful and marred with conflicts.
My surmise--my surmise--is that in the heat of the Court's ire about
the leak, the assumption was made that some clerk or staffer was
responsible. Chief Justice Roberts directed the Marshal of the Court to
investigate. He called the leak a ``singular and egregious breach of
trust that is an affront to the Court and the community of public
servants who work here.''
Well, for more than 8 months, the public waited to find out whether
the Marshal's investigation would live up to the Chief Justice's words.
In the end, the Court's handling of the Dobbs investigation was a
case study in how not to conduct a fair and transparent investigation.
The problems were numerous, not least that the Marshal of the Court
isn't normally responsible for leading investigations. But the problem
that really emerged was that some of the prime suspects for the leak
were her bosses, and the investigation held the Justices to a different
standard than everyone else at the Court. Everyone else at the Court
had to sit down for formal interviews, had to turn over their private
communications, had to sign affidavits under oath, but when it came to
the Justices, it was different. They were subject to something that the
Court called an iterative process. I have no idea what an iterative
process is. I can tell you what it isn't. It isn't an investigative
process. The Justices even asked questions of their own--some
statement.
The premise seems to be that even here, the Justices can never be
investigated. This was going to be a top-tier investigation as long as
it looked like it was going to be clerks and staff, but once it looked
like it might be Justices involved in the leak, suddenly the wheels
fell off.
I have never seen an investigation where the investigator called in a
third party to provide public assurance that they did a good job, like
a little sidecar running next to the investigation: Yeah, they are
doing a good job. In this case--worse--it was a third party with
conflicts of interest, with relationships with obvious suspects and
with contracts with the Court.
So if you compare all of that with how misconduct investigations are
handled everywhere else in the Federal Government, you see some pretty
big discrepancies. In the executive branch, Congress has established
inspectors general who are surrounded by professional staff experienced
in internal investigations. IGs know how to conduct
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real interviews and record witness statements. Congress has its own
internal procedures and investigators for ethics complaints. We have
our Ethics Committee. The House has its Ethics Committee. Congress set
up procedures for ethics investigations in the lower courts. They
exist. Judges are investigated, and people can know where you submit
your complaint and how that complaint gets investigated.
The Supreme Court is unique across the entire Federal Government in
being impenetrable to investigation, from no ethics inbox, to no
process for reviewing a complaint, to no credible report at the end of
the day. The highest Court in the land should not be held to the lowest
standards in government.
So last week, Congressman Hank Johnson and I, joined by Senator
Blumenthal and Congressmen Nadler, Quigley, and Cicilline, reintroduced
our Supreme Court Ethics, Recusal, and Transparency Act. Our bill would
finally require the Supreme Court to have not just a code of conduct
but a real process to enforce that code and other Federal ethics laws.
Our bill would also update judicial ethics laws, ending the ability
of judges to ignore conflicts of interest and their recusal
obligations; requiring Justices of the Supreme Court to disclose gifts
and travel, as other Federal officials do; and exposing the real
interests appearing at the Court behind amici curiae who lobby the
Court under fake names.
Apparently, there has been a halfhearted effort at the Court to begin
to deal with this. The Washington Post reported last week that the
Justices discussed for years a binding code of ethics to no result, and
the effort seems to have fallen apart. So that leaves Congress in the
position that if they won't fix it, we will.
There are many problems plaguing our Supreme Court. Far-right, dark-
money interests spent years stacking the Court with their handpicked
Justices, who in turn have delivered for those interests at every
available opportunity. We need to undo the damage wrought by the Court
that dark money built and by those who built it, but we can start--we
can start--by bringing basic standards of integrity to the Supreme
Court, standards all other judges follow and standards that govern all
high-ranking Federal officials across all three branches of
Government--officials who are paid by taxpayers to serve the best
interests of the American people.
To be continued.
Mr. WHITEHOUSE. I yield the floor.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Supreme Court of the United States, the Legal Office,
Washington, DC, November 28, 2022.
Hon. Sheldon Whitehouse,
U.S. Senate,
Washington, DC.
Hon. Henry C. Johnson,
House of Representatives,
Washington, DC.
Dear Chairman Whitehouse and Chairman Johnson: I am writing
in response to your letter dated November 20, 2022.
Justice Alito has said that neither he nor Mrs. Alito told
the Wrights about the outcome of the decision in the Hobby
Lobby case, or about the authorship of the opinion of the
Court. Gail Wright has denied Mr. Schenck's allegation in
multiple interviews, saying the account given by Mr. Schenck
was ``patently not true.'' (Don Wright is deceased.) Justice
and Mrs. Alito became acquainted with the Wrights some years
ago because of their support for the Supreme Court Historical
Society, and they had a casual and purely social
relationship. The Justice never detected any effort on the
part of the Wrights to obtain confidential information or to
influence anything he did in either an official or private
capacity. Mr. Schenck's allegation that Justice Alito or Mrs.
Alito gave the Wrights advance word about the outcome in
Hobby Lobby or the authorship of the Court's opinion is also
uncorroborated. Politico reports that despite several months
of efforts, the publication was ``unable to locate anyone who
heard about the decision directly from either [Justice] Alito
or his wife before its release at the end of June 2014.'' The
New York Times stated that ``the evidence for Mr. Schenck's
account of the breach has gaps.''
There is nothing to suggest that Justice Alito's actions
violated ethics standards. Relevant rules balance preventing
gifts that might undermine public confidence in the judiciary
and allowing judges to maintain normal personal friendships.
Judicial Conference gift regulations provide that a judge may
not accept a gift from a person seeking official action from
or doing business with the judge's court or whose interests
may be substantially affected by the performance or non-
performance of the judge's official duties, with only limited
exceptions. See Guide to Judiciary Policy, vol. 2C, Ch. 6,
Sec. 620.35. The Wrights owned a real estate business in
Dayton, Ohio, and to our knowledge, they have never had a
financial interest in a matter before the Court. In addition,
the term ``gift'' is defined to exclude social hospitality
based on personal relationships as well as modest items, such
as food and refreshments, offered as a matter of social
hospitality. Id Sec. 620.25(a), (b). Similarly, Justice and
Mrs. Alito also did not receive any reportable gifts from the
Wrights. Gifts of less than ``minimal value'' received from
one source in a calendar year need not be reported. And gifts
do not count toward this threshold if they take the form of
food, lodging, or entertainment received as personal
hospitality of an individual, or food or beverages which are
not consumed in connection with a gift of overnight lodging.
See 5 U.S.C. App. Sec. Sec. 102(a)(2)(A), 109(5)(D).
Very truly yours,
Ethan V. Torrey,
Legal Counsel.
Mr. WHITEHOUSE. I yield the floor.
The PRESIDING OFFICER. The Senator from North Carolina.