[Congressional Record Volume 169, Number 184 (Tuesday, November 7, 2023)]
[Senate]
[Pages S5394-S5397]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                           U.S. Supreme Court

  Mr. WHITEHOUSE. Mr. President, the subject of our colloquy is going 
to be the enormous, secret gifts that have recently been disclosed 
going into the pockets of certain Supreme Court Justices.
  The first thing that is remarkable about these gifts is how 
magnificent they are--luxury trips on private jets, luxury trips on 
superyachts, paying for a Justice's mother's home, paying for private 
school tuition of dependents, $500,000 donations to organizations that 
the spouse worked for, $25,000 fees into a spouse's consulting firm, 
jet and fishing trips across the country. So it is all pretty rich 
stuff.
  In Rhode Island, if you want to take a gift from somebody--let's say 
you are a municipal employee, and they want to take you to lunch across 
the street from city hall. It is 25 bucks. That is your limit, and you 
have to disclose it. You get to do that three times, and then you are 
all done. Then you can't even take the $25 lunch if you disclose it. So 
in Rhode Island, people are really upset about these multi-hundred-
thousand-dollar gifts.
  It gets worse. It is not just the size of the gifts. It is the 
network. It is the web. The billionaires who are involved in giving 
these gifts overlap with an array of front groups that are involved 
with the billionaires and with the gifts, and there is a common 
``fixer'' who ties many of these threads together. The trips very often 
involve the fixer and the Justices and the billionaires, and the whole 
mess is interwoven. The donations go through the front groups to the 
Justice from the fixer over and over. This thing is a web, and we are 
working hard in the Judiciary Committee to try to untangle it.
  On Thursday, we will be taking up the question of subpoenas to the 
billionaires and the front group corporations that have participated in 
these different gifts to find out what really went on. How bad, really, 
was it? What we know already is bad enough, but there is more to 
discover.
  With that, let me yield to my colleague Senator Blumenthal, and then 
I will wrap up after Senator Hirono and Senator Welch have had their 
chance to speak as well.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. BLUMENTHAL. Mr. President, I want to thank Senator Whitehouse for 
his leadership on this issue--persistent, consistent, constant in 
seeking the truth; very simply, seeking the facts.
  We are here about the authorization of a subpoena to three 
individuals--Harlan Crow, Leonard Leo, and Robin Arkley--who have 
engaged in, we know for sure, a pattern of gift-giving, including 
lavish vacations, private jet flights, school tuition, and even a 
luxury RV. These wealthy political activists have given those 
gratuities, we know for sure, but we know very little else because the 
Supreme Court has no code of ethics.
  The U.S. Supreme Court could defuse a lot of the degrading rumor and 
speculation if it were simply to do as every other branch of 
government, as every other judge except for the U.S. Supreme Court does 
and impose a code of ethics. Its refusal to adopt a code of ethics lies 
at the core of our reason for being here today.
  But, in my view, these subpoenas are part of an effort to save the 
Court from its own self-inflicted ethical crisis. It is an ethical 
conflagration of its own making. The Supreme Court Justices are the 
only Federal judges who are not subject to a binding and enforceable 
ethical code, and that leads to the next point.
  The Judicial Conference is a creation of this body, the U.S. 
Congress. We are looking into what the Judicial Conference should be 
doing and what it may know and should be held accountable for knowing. 
Our investigative effort directly concerns a creation legislatively of 
the Congress. It is perfectly proper. It raises no constitutional 
issues.
  All this stuff about the independence of the Supreme Court--yes, it 
is an independent branch of government, but it is not nonaccountable. 
Funds for it are appropriated. Rules of evidence are created. There are 
numerous ways that it, in effect, is held a part of an overall and 
overarching Government of the United States of America.
  The small circle of individuals here who have engaged in these 
gifts--all of them far-right, wealthy donors; some of them having cases 
before the Court--raises issues that are profoundly important to the 
credibility of the Court itself. So, again, we are seeking to save the 
Court, in a sense, from its own potentially self-inflicted continuing 
degrading and diminishing.
  The fact that the polls show the Supreme Court has plummeted in 
public opinion is not the reason for us to investigate, but they 
reflect a secrecy, combined with these potentially improper gifts, that 
is undermining the Court as an institution.
  I say it sadly because I was a law clerk on the U.S. Supreme Court to 
Justice Harry Blackmun--who, by the way, would not even go to dinner 
with someone who might at some point in the future have a case before 
the Court. I have argued cases before them, before the U.S. Supreme 
Court. I have real reverence for the Court as an institution. So I am 
especially sad but also particularly angry that the Court is failing--
totally failing--to take action that it owes the American people and 
itself, because the Supreme Court as an institution will be diminished 
by its continued refusal to create an ethics code and the refusal to 
disclose the truth about these financial relationships. These twin 
refusals bring us here today.

  Authorizing a subpoena is not a step that I take lightly. None of my 
colleagues do. But the weight of the Court's ethical crisis makes it 
necessary.
  The American people deserve a Supreme Court that is ethical, 
impartial, and accountable. The highest Court in the land is not higher 
than the law. It is not above accountability. It may be independent, 
but it is not unto its own, as it seems to believe it is.
  We are past Halloween. All of the charades and shams that have been 
offered as arguments are about as valid as the costumes people were 
wearing the other day, October 31.
  The Supreme Court has a commitment and a promise under our 
Constitution. It has to deliver on that promise or its credibility will 
be further diminished, and the Supreme Court as a pillar of justice--
and it must be a pillar of justice--will be eviscerated in the eyes of 
the American people.
  I look forward to authorizing these subpoenas and helping to restore 
the reputation of our United States Supreme Court.
  I yield to my colleague from Hawaii, Senator Hirono.
  The PRESIDING OFFICER. The Senator from Hawaii.
  Ms. HIRONO. Mr. President, I rise today because I, like the majority 
of Americans, am increasingly concerned about the legitimacy crisis at 
the U.S. Supreme Court.
  The Court consists of nine members who have lifetime appointments and 
can make decisions regarding the quality of the air we breathe; the 
exercise of free speech on the internet; the autonomy and control of 
our bodies; protection of our homes, cars, and cell phones from 
government intrusion. These are just a few ways the Supreme Court's 
decisions impact the lives of every single American every single day.
  These individuals with immense power, shouldn't they be held to the 
highest level of ethical accountability--not because we disagree with 
some of the Court's decisions but because its legitimacy depends on 
Americans having faith that those decisions are arrived at fairly and 
objectively, not influenced by money or special interests. Yet, instead 
of having the strongest ethical rules--or any binding ethical rules, 
for that matter--the Supreme Court purports to follow a ``collection of 
principles'' that are both nonbinding and weaker than the rules for 
government workers, for Members of Congress, and for many private 
sector employees.

[[Page S5395]]

  As we have seen, the Supreme Court's honor system for financial 
disclosures and recusals is woefully inadequate. This is not a partisan 
issue. Justices appointed by both Democrat and Republican Presidents 
have had ethical lapses.
  The public is paying attention, and now it appears there are sitting 
Justices approved by both Democratic and Republican Presidents who are 
publicly supporting an official code of conduct for the Supreme Court.
  The Supreme Court could have adopted such a code decades ago and 
could do so today if it wanted to; however, if the Supreme Court will 
not adopt a code of conduct for itself, then Congress has the 
constitutional power and responsibility to impose a code of conduct on 
it.
  This brings me to the topic of subpoenas. For months, my colleagues 
and I on the Judiciary Committee have worked in good faith to gather 
information about gifts of luxury travel and other gifts made to 
certain Justices to understand whether ethical violations occurred and 
how and when. We sought information from the millionaires and 
billionaires who made those gifts about the kinds of access they may 
have gained as a result.
  Despite lengthy negotiations, we have hit an impasse in our efforts 
with two of these individuals and their related corporations. Their 
refusal to provide the committee with relevant information leaves us no 
choice but to authorize subpoenas. We need information from these 
individuals to understand the extent to which Supreme Court Justices 
have failed to disclose gifts from parties with interests before the 
Court.
  Congress has a responsibility to craft and strengthen effective, 
comprehensive Supreme Court ethics legislation going forward.
  Some of my Republican colleagues say that issuing subpoenas to people 
who paid for luxury travel and gifts for Supreme Court Justices somehow 
undermines democracy. Those claims are preposterous. What undermines 
our democracy is Justices accepting gifts and appearing to use their 
office for personal gain.
  If the Court had done the right thing decades ago and adopted a 
comprehensive code of conduct, we likely would not be issuing 
subpoenas.
  We have a responsibility to ensure that the highest Court in the land 
adheres to at least--at least--the same ethical standards that apply to 
the other two branches of government and to pass appropriate 
legislation if it has failed to do so. Therefore, the committee should 
continue to exercise its constitutional oversight authority and 
authorize subpoenas.
  I yield to Senator Welch.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. WELCH. I thank my colleagues tonight, and I thank Senator 
Whitehouse for his work on this.
  You know, the question that is facing, I think, all of us and is 
troubling Americans is an erosion of confidence in our institutions. We 
are seeing that with a lot of erosion of confidence in the legislature, 
which is here to serve the interests of the people we all represent. It 
is also sometimes with the Executive--huge battles there. And, of 
course, January 6 was an indication that the norms that have guided us 
throughout our history--that is, the peaceful transfer of power after 
the people of this country make a decision about who shall be their 
elected leader--have all been challenged.
  And now we have the Supreme Court. The Supreme Court has an 
incredibly important role in the preservation of our democracy because 
it has the capacity to make decisions about legislative actions and 
whether what the legislature did fits within the parameters of the 
Constitution, and it is an awesome responsibility.
  As my colleagues have said, I have an enormous amount of reverence 
for the institution of the judiciary, and I have an enormous amount of 
reverence for the particular role of the U.S. Supreme Court.
  I have immense respect for the individuals who have achieved that 
status of being a member of the U.S. Supreme Court. They serve an 
important institution. They have a very important job. But they are not 
more important, as individuals, than any other American. They are not. 
They have more responsibility. They have a special obligation as 
Justices of the Supreme Court, but they are not above the law.
  This is not exactly about whether there are legal questions involved. 
It is about whether they accept the responsibility that goes with 
representing an institution that must maintain credibility for the 
American people in order to have the people whom they serve respect 
their decisions.
  We have a situation in the Supreme Court now. Within our judiciary, 
we have 850 judges at all different levels. Every single one of those 
judges is subject to rules that are designed to try to instill public 
confidence. Those rules require those judges to make financial 
disclosures. That includes whether they have been the beneficiary of 
gifts. There are nine people in this country who are in the judiciary 
who don't adhere to those rules, who don't believe it is their burden 
to share and disclose with the American people what gifts they have 
received, and those are the nine Justices of the U.S. Supreme Court. 
That is outrageous.
  You know, when I talk to Vermonters about this and I say: Do you 
think that a justice of the Vermont Supreme Court or a Justice of the 
U.S. Supreme Court should be required to let you know--let the public 
know--if they got private jet travel to a location to get on a private 
yacht to take a private vacation? They have an obligation to disclose 
that.
  And Vermonters look at me in dismay and they say: Peter, are you 
serious? They can do that?
  This is not about disclosure. This is astonishment that somebody in a 
position of authority who they know--and every Vermonter knows--is 
getting that offer of a free jet travel, who is getting that offer of a 
free yacht trip and vacation in the Indonesian islands. It has nothing 
to do with who they are as persons. It has to do with who they are 
because of their responsibility and role as U.S. Supreme Court 
Justices. Vermonters can't believe it.
  So this question of gifts and the bare minimum of having to disclose 
it, how is it even a question?
  You know, I served in the House, as you know, and, in 2011, I and 
several of my colleagues wrote a letter inquiring about these gifts and 
why is it that they didn't have to be disclosed. This has been going on 
for far too long.
  There is another matter of personal respect. The Supreme Court 
Justices, all of them, have the highest position in the judiciary, and 
all of those other 850 judges under them, are they not entitled to 
expect that what is required of them will be accepted by those nine 
members?
  I have to confess enormous dismay that the Chief Justice of the 
Supreme Court, who is in the position to bring those other eight 
Justices together and say, ``Hey, let's deal with this; why are we 
creating this problem when it does so much to undercut public 
confidence in what it is we are trying to do?'' hasn't done it--hasn't 
done it.
  So we have to do it. I believe that the judiciary--not just the 850 
members of the judicial branch but 859 members of the judicial branch--
should all be subject to the same disclosure rules. And let me tell 
you, if they disclose these gifts, maybe they won't take these gifts--
because, actually, what is the point? I mean, really?
  This is where I go back to the Vermonters I talked to who say: Peter, 
what is the deal? You literally can take an all-expense-paid vacation, 
and this person thinks it is not going to influence them? And they want 
to know what I have been smoking--seriously.
  So what we are doing here is pretty modest, bare bones, but even if 
it is bare bones and modest, it is absolutely essential to the first 
step that we take in our effort to restore confidence to the people of 
this country--Republicans, Democrats, Independents--that our judiciary 
is all about serving them, not benefiting individually by their 
positions.
  I yield to my colleague from Rhode Island, Senator Whitehouse.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, first, let me thank my three 
colleagues for joining me on the floor today. A word that came up 
repeatedly was ``reverence,'' and I want to start with that word 
because I think we all do share a reverence for the institution of 

[[Page S5396]]

the Supreme Court. And that is what makes it so bitter, to see how 
badly the Supreme Court is failing us now and to see the paths that 
billionaire influence has led it down.

  It has to correct, and if it is not going to correct itself, then 
Congress is going to have to correct it.
  As Senator Blumenthal said, the problem here is that there is no 
ethics process for the Supreme Court. There is a perfectly good code of 
ethics for all of the Justices and for all of the Federal judges, but 
there is no way to enforce it for the Supreme Court.
  If you have a complaint about a Supreme Court Justice, there is 
nowhere to file it. There is not even an inbox, and if there were an 
inbox and complaints came through, there is nobody on the other side of 
the inbox to screen out the nutty ones from the legitimate ones. And 
once you have a pile of legitimate ones, there is no staff attorney to 
do the basic research into what are the facts here. At the end of the 
day, when you have the facts determined and the judge or Justices have 
their say, then you have the factual predicate to compare with the 
ethics standard and a neutral decider to decide whether or not it 
comports. That is the basic structure of U.S. due process, and the 
Supreme Court will not allow that for itself. That is the problem that 
we have.
  So none of the questions that deserve to be answered about all of 
these secret gifts and about all of this billionaire influence--none of 
them--have even been asked over at the Supreme Court, let alone 
answered. So we have an absolute obligation to go forward with answers.
  And we have tried. We have asked very nicely. We have sent lists of 
questions. We have gone forward with the people who would know about 
all of this.
  And we have received two answers. One was that this is 
unconstitutional, and so we are not going to participate with you at 
all. You get nothing. You don't get a single answer.
  That, as Senator Blumenthal said, we believe to be a complete sham 
and a complete charade because the disclosure rules--right? We are 
talking about disclosure of gifts to Justices. They went undisclosed.
  So the question is, Should they have been disclosed? And there is a 
rule about disclosure that just happens to be a law passed by Congress. 
And there is a related law passed by Congress that relates to recusal, 
and recusal relates to gifts because, if you take big enough gifts from 
someone, you then have to recuse yourself as a judge from their cases. 
And the recusal rule is also passed by Congress.
  So you have a disclosure law passed by Congress, and you have a 
recusal law passed by Congress, and you have what Senator Blumenthal 
described--the Judicial Conference, which is the administrative body 
that oversees the administrative side of the judicial branch, and that 
body was also created by Congress.
  So the argument that is being made to us is that Congress has no 
authority to oversee how an Agency that Congress created is 
implementing laws Congress passed. That argument is, on its face, 
preposterous, and that, in turn, suggests that there is a lot to look 
at when we get a chance to look under the hood of all this mischief.
  And they really don't want us to see it, and they are going to 
manufacture completely preposterous arguments just to try to throw us 
off the trail.
  Another recipient of our questions said: OK, it is unconstitutional, 
but I will offer you a few things. You know, in good faith, I will 
offer you a few things, but you can only go back 5 years.
  Well, we happen to know, with respect to this billionaire, that they 
were giving gifts to Justices way more than 5 years ago. So they are 
not even allowing us to ask into the known gift-giving conduct between 
the billionaire and the Justice, which, by the way, was undisclosed at 
the time.
  So the 5-year rule is just nonsensical, just picked out of the air--
picked, actually, out of a criminal statute, as if that had a bearing 
on a congressional investigation.
  Then they said: We will only give you documents that you already 
have. For everything else, we will just give our lawyers narratives 
about what took place.
  Well, anybody who has ever tried a case knows perfectly well that if 
you rely on the other side's lawyer's narrative, you are getting no 
place.
  Discovery means you see the documents. You do your real homework like 
lawyers do. So for one lawyer to suggest to another: No, we are not 
going to show you the documents; we have them, but we are not going to 
show them to you; we are just going to give you a narrative of them--
there isn't a lawyer in this country who would accept that as a 
condition in discovery in a case.
  The third one is that, once we have answered your first round of 
questions and given you our phony-baloney narrative for the 5 years 
that is all we will let you inquire about, no more questions. You waive 
your right to ask us any more questions forever.
  Again, there is not a lawyer in the country who would accept that as 
a condition of a discovery order. You get to ask the second question. 
``One and done'' is not a thing when you are doing an investigation.
  So all of these theoretical accommodations that were offered were 
just completely fake. We cannot proceed that way--not with any kind of 
professionalism and not with any kind of ability to get to the truth, 
which is, at the end of the day, what we really need to do here.
  I will conclude by going back to where I started. The reason that we 
need to follow this process of getting subpoenas so we get answers to 
our questions is because of two failures: one, the failure of the 
Supreme Court to even ask these questions itself. If there were a 
viable process going forward, using the basic due process investigation 
standards that everybody in government has to face for ethics, except 
these nine Justices, we wouldn't need to do this. But the Supreme Court 
won't allow questions to be asked about itself. So we can't go to them 
for a proper investigation. They refuse to do it.

  When we asked the participants in this gift scheme what they were up 
to, they told us, as the ranking member of the Judiciary Committee, I 
think, rather artfully summarized, to go pound sand. Well, when 
Congress has a legitimate inquiry into how an Agency that it created is 
implementing statutes that it passed, ``go pound sand'' is not a 
legitimate answer. So the next step is to move to authorize these 
subpoenas, and we are going to do that.
  This business of the Court not answering obvious questions is really 
a problem. The question of whether Justice Thomas should have recused 
himself from the January 6 cases depends on a single fact: what he knew 
about his wife's involvement in insurrection activities. If he knew 
absolutely nothing at all, OK. Then it is probably OK for him to recuse 
himself--maybe a little bit of appearance of impropriety. But if he 
actually knew of her involvement in those matters, then he absolutely 
should have recused himself.
  The question ``Justice Thomas, what did you know, and when did you 
know it?'' has never been asked and never been answered. That is not a 
tenable way for a Court that purports to represent due process and 
enforce due process to conduct itself with respect to a conflict of 
interest.
  It is the same thing with these gifts. There is no Federal judge in 
the country who is receiving multihundred-thousand-dollar vacation 
gifts, who is getting huge half-million-dollar checks sent in to a 
spouse's small private company out of which she takes money. This 
behavior of free private jet travel--at beck and call, it seems--nobody 
else does that. It is not OK. But looking at it to find out what 
actually took place and why and when is a basic responsibility of the 
Judiciary. In any other court, these claims, these charges, these 
circumstances would be properly investigated. We would know the facts, 
and we are entitled to know the facts.
  The last is that, in the context of our investigation, one of these 
lawyers made up what I consider to be a sham argument that we can't ask 
any questions because it is unconstitutional. I have addressed that. It 
is a congressionally established entity applying congressionally 
established laws. Yes, we do get to inquire about that kind of job. 
Because, perhaps, that argument is so weak, so sham, that lawyer 
actually recruited a Supreme Court Justice to

[[Page S5397]]

go into the editorial page of the Wall Street Journal and offer an 
extrajudicial opinion--not an opinion of the Court, just his own 
personal opinion--that we had no business investigating.
  That violates a ton of stuff. That violates the rule that they are 
not supposed to offer opinions on matters that might come before the 
Court. That violates the rule that you shouldn't be engaging as a 
Justice in an ongoing dispute, sort of like a de facto expert witness 
for a party in an ongoing dispute. In this case, the dispute is over 
access to information.
  The lawyer's client in that is one of the people involved in this 
scheme, Leonard Leo. Leonard Leo has a personal relationship also with 
Justice Alito. He is described as his friend. None of that is 
disclosed. He just offers his opinion on behalf of the lawyer for his 
friend.
  At the end of the day, the inquiry looks at free gifts, undisclosed, 
received by Justice Alito. At the end of the day, the lawyer for 
Leonard Leo was able to recruit a member of the Supreme Court, Justice 
Alito, to offer a private--I should say a public opinion but a 
nonofficial opinion, a personal opinion, in the Wall Street Journal 
editorial page to prop up the argument that says we can't look into 
gifts that Leonard Leo, the client, organized for Justice Alito, the 
recipient. That is a tangled mess of ethics violations, and nobody can 
look at that. Nobody will look at that. That can't be.
  So, with the Court looking at none of this scandalous behavior, it is 
entirely incumbent upon the Congress to do its job and get to the 
bottom of what went on. That is what, under the leadership and guidance 
of our Judiciary chairman, Dick Durbin, we will do.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.

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