[Congressional Record Volume 169, Number 184 (Tuesday, November 7, 2023)]
[Senate]
[Pages S5386-S5387]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
U.S. Supreme Court
Mr. DURBIN. Mr. President, as a member of the Senate Judiciary
Committee, you are aware of the fact that I announced last week in the
committee that we would vote to authorize subpoenas to Harlan Crow,
Robin Arkley, and Leonard Leo as part of the Judiciary Committee's
continuing investigation into the ethical situation at the U.S. Supreme
Court.
I do not make this decision lightly. Seeking authorization to issue
subpoenas is a relatively rare occurrence in the committee. So today I
come to the floor for a few minutes to explain why we have taken this
significant step.
Over the last several months, it has become clear that the Supreme
Court is in desperate need of a binding code of ethics as we learned of
lavish gifts and luxury travel that certain Supreme Court Justices have
accepted from a gaggle of fawning billionaires.
Let's start with Justice Clarence Thomas. The sheer number and value
of gifts accepted by Justice Thomas is staggering, and the
shamelessness with which he accepted them is stunning. For decades,
Justice Thomas has accepted lavish gifts from Harlan Crow, a
conservative billionaire with business before the Supreme Court. These
gifts have ranged from a $19,000 Bible once owned by Frederick Douglass
to a $15,000 bust of Abraham Lincoln. Justice Thomas also accepted
private jet trips and free lodging at Bohemian Grove, an exclusive all-
male, invitation-only retreat in the redwoods of California. And these
are only examples of what Justice Thomas disclosed.
After the Los Angeles Times reported on these disclosures, Justice
Thomas, in 2004, 19 years ago, promptly stopped disclosing gifts as
required by law.
We learned this year that he continued to accept expensive gifts for
the past 19 years and that these billionaire benefactors have been part
of a growing list.
There isn't time to detail all of the undisclosed gifts, which the
press has discovered, and luxury travel that Justice Thomas has
accepted, but for the sake of a record, I am going to give a few
examples.
In 2019, Justice Thomas and his wife flew to Indonesia on Harlan
Crow's private jet and boarded Crow's 162-foot superyacht, the Michaela
Rose, to island hop with Harlan Crow and his wife.
The total cost of that trip alone could have exceeded half a million
dollars if Justice Thomas had chartered the jet and yacht. Lucky for
him, Harlan Crow was happy to cover the costs.
Justice Thomas also continued to join Crow on trips to Bohemian Grove
in California. He visited Crow's ranch in East Texas, spent summers at
Crow's private resort in the Adirondacks.
But there is more. Crow paid thousands of dollars to cover tuition
for Justice Thomas's grandnephew. He purchased real estate owned by
Thomas and his relatives, including Thomas's mother's home, where she
continues to live rent-free. And Crow donated half a million dollars to
a conservative advocacy group founded by Justice Thomas's wife.
I could go on and on and on because the list of gifts Justice Thomas
has chosen to accept and failed to disclose goes on and on and on.
Justice Thomas is not the only Supreme Court Justice who has accepted
lavish gifts from billionaires and refused to disclose them. In 2008,
Justice Samuel Alito boarded a private jet bound for Alaska to enjoy a
luxury fishing trip, a trip that should have cost him over $100,000,
but it didn't cost him one penny because of the man who organized the
flight and joined Alito on the luxury fishing trip, Leonard Leo.
Mr. Leo arranged Justice Alito's free flight to Alaska and his free
lodging once he arrived. Their host at the luxury fishing lodge was a
gentleman named Robin Arkley. Over the next few days, Justice Alito and
his travel companions enjoyed guided fishing trips, flights on bush
planes, meals of Alaskan king crab and Kobe beef, and wines costing
upward of $1,000 a bottle.
Justice Alito did not disclose any of this, and when challenged, for
example, on the jet ride--why that should be disclosed--he said he
didn't view it as a gift because if he didn't go, the seat on the plane
would have gone empty.
That is an interesting analysis of a gift from a strict
constructionist.
This kind of scandalous behavior cannot continue. One former Federal
judge who served for years on the judicial committee that reviews the
Justices' financial disclosures had this to say about the gifts to
Justice Thomas:
In my career, I don't remember ever seeing this degree of
largesse given to anybody.
When referring to the cascade of gifts from Harlan Crow to Justice
Thomas, the former chief White House ethics lawyer for Republican
President George W. Bush said:
This is way outside the norm. This is way in excess of
anything I've seen.
And renowned conservative jurist, Judge J. Michael Luttig, stated in
testimony before the Senate Judiciary Committee:
The Supreme Court should want to lead by the example that
only it can set. It should want to conduct itself in its non-
judicial activities in all ways such that it is beyond
reproach.
Unfortunately, the Supreme Court has not lived up to this
expectation. That is why our Senate Judiciary Committee is exercising
its constitutional authority to investigate. Months ago, I, along with
my Democratic colleagues on the committee, sent letters to Crow,
Arkley, and Leo, among others, seeking details about what exactly
[[Page S5387]]
has been provided to Supreme Court Justices. Our goal has been to
understand how specific individuals and groups with business before the
Court have used undisclosed gifts to gain private access to Justices--
access not afforded to others.
For months, Crow has refused to fully comply with the committee's
requests, and Leo has completely stonewalled the committee. Only now,
under threat of subpoena, Mr. Arkley has stepped forward, and we are
looking forward to continuing our conversation with him this week.
The fact that we have to go to this length is unacceptable but
necessary. The Senate and the American people deserve to know the full
extent of how billionaires with interests before the Court use their
immense wealth to buy private access to our Supreme Court.
That is why, on Thursday, the Judiciary Committee will vote to
authorize subpoenas for these individuals. The vote is a critical step
in the committee's exercise of its constitutional right and duty to
conduct oversight of the Federal judiciary. It is critical to the
committee's effort to restore the Court's reputation. The highest Court
in the land should not have the lowest standard of ethics.
This is not a fight I wanted, but now that it has come to this, the
Judiciary Committee will not back down.
Most Americans are shocked to know or to learn that the nine Justices
on the Supreme Court are the only high-ranking Federal officials in the
United States of America who are beyond the reach of a code of ethics.
How do you explain that?
How can you explain that every Federal judge in America is bound by a
code of ethics except for the nine Supreme Court Justices?
What is so special about them? The Constitution makes it clear that
we don't have royalty in this country. They are acting like they belong
to some legal fraternity or sorority. That has got to come to an end.
When you look at the situation, Members of Congress are held to
standards--and I am not complaining. I knew what I was getting into
when I signed up for this job--held to standards of disclosure and
limitation on gifts.
I cannot tell you how many times I have said to a person: Is this
worth more than 50 bucks? If they answer: Well, maybe, it might be, I
say: Well, keep it and thanks for thinking of me.
That is the kind of thing that just becomes a routine part of public
service. These lavish gifts, particularly from individuals who have
business before the Court, are just unacceptable and inexplicable.
It is important for us to have a response when people ask: What are
you doing to clean up things at the Supreme Court?
The first thing we did, I think, was the responsible and respectable
thing to do. We invited the Chief Justice of the Supreme Court to
appear before our committee and tell us his thoughts on the subject and
what he believes should be done to deal with this bad publicity and
these disclosures. He declined the invitation. I don't hold it against
him. He explained, in my presence, a few weeks ago why he did. I
understand it. I disagree with it, but I understand it.
But 11 years ago, was the first time I contacted the Chief Justice
and said: This has got to come to an end. Tell us what you are going to
do about establishing a code of ethics on the Supreme Court. Eleven
years ago and nothing--nothing--has happened since.
I want to salute and commend my colleague Senator Sheldon Whitehouse
of the State of Rhode Island. He has been a leader on this topic in the
subcommittee which he chairs on the Judiciary Committee, and we have
cooperated in this effort.
We will meet this week. This is not the first time the Judiciary
Committee will be asked to issue subpoenas. They happened before under
Republican leadership as well in a much different type of case. But the
fact of the matter is, we have tried carefully and studiously to come
up with this information the right way, and, unfortunately, we have not
gotten the kind of results we wanted. A subpoena, we hope, will jar
loose the information to explain exactly what happened with the gift-
giving by several individuals.