[Congressional Record Volume 170, Number 99 (Wednesday, June 12, 2024)]
[Senate]
[Pages S4040-S4043]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Unanimous Consent Request--S. 359
Mr. DURBIN. 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
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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.
The PRESIDING OFFICER. Is there an objection?
The Senator from South Carolina.
Mr. GRAHAM. Madam President, reserving the right to object, let's be
clear--this is not about improving the Court; this is about undermining
the Court.
We have three branches of government here. We have the legislative,
executive, and judicial branch. This would be an unconstitutional
overreach. This would undermine the Court's ability to operate
effectively. And it has been a continued effort by our friends on the
Democratic side to undermine a Court they don't like.
Here is what the Supreme Court has done: In April of 2023, all nine
Justices signed a statement on ethics, principles, and practices
specifying the ethics, principles, and practices they follow. In March
of 2023, the Committee on Financial Disclosures formally amended the
personal hospitality regulations in a manner that now requires more
complete disclosure. In November of 2023, all nine Justices promulgated
a code of conduct.
The Court is taking these problems seriously. The question is, What
are we up to here? We are trying not to empower the Court or reform the
Court; we are trying to attack it right at the end of the term.
I remember very well when the majority leader, Senator Schumer, went
to the Court and said, right in front of the Court itself:
I want to tell you, Gorsuch; I want to tell you, Kavanaugh:
You have released the whirlwind, and you will pay the price.
You won't know what hit you if you go forward with these
awful decisions.
This is really about the way the Court decides cases that our
colleagues on the other side really don't like.
So all I would say is that there are provisions in this bill that
should bother anybody that cares about an independent judiciary.
Judicial investigative panels in section 2 of this bill are made up
of lower court judges who would actually preside over their bosses.
There is one Supreme Court here. It is unnerving to have a group of
lower court judges basically handing an investigative panel the ability
to investigate the Supreme Court--the constitutionally designated
Supreme Court.
Recusal--that has been up to the individual Justices since the
Court's founding. This bill would create a panel of judges to decide
when a Supreme Court Justice should be recused. Again, that just puts
the Court in, I think, disarray and fundamentally assaults the one
Supreme Court we have.
All I can say is that section 7, where you have to have disclosures
of amicus
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briefs, would make it very hard for certain people to register their
opinions about a particular matter before the Court because they could
get destroyed by the media, they could get destroyed by special
interest groups, and I think that chills out the ability of people to
petition the Court apart from politics.
So my hope is that not only will we stop this exercise now, we will
stop it forever.
With that said, I withhold my objection at this time.
The PRESIDING OFFICER. Is there an objection?
The Senator from Louisiana.
Mr. KENNEDY. Madam President, reserving the right to object and with
all the respect I can muster for Senator Durbin--and I mean that,
Dick--I do not believe that most of my colleagues think this bill is
about ethics. This bill is about abortion.
In June of 2022, the U.S. Supreme Court decided the Dobbs case. It
returned the issue of abortion to the American people through their
States.
While the Supreme Court was deliberating that case, my colleague and
my friend Senator Schumer went over to the Supreme Court and on the
steps of the Supreme Court building--I was there; I remember it like it
was yesterday--this is what Senator Schumer said:
I want to tell you, Gorsuch; I want to tell you,
Kavanaugh--
Not ``Justice Gorsuch.'' Not ``Justice Kavanaugh.''
I want to tell you, Gorsuch; I want to tell you, Kavanaugh:
You have released the whirlwind, and you will pay the price.
You won't know what hit you--
Senator Schumer said--
if you go forward with these awful decisions.
What we are seeing today with this legislation, in my opinion but
most Senators agree with me, is part of the promised whirlwind. And I
do not believe that we should try to undermine the integrity of the
institution of the Supreme Court of the United States because we are
unhappy with one of its opinions.
I will withhold my objection at this time to allow my friend Senator
Lee to speak.
The PRESIDING OFFICER. Is there an objection?
The Senator from Utah.
Mr. LEE. Madam President, reserving the right to object, the United
States of America has benefited for nearly 2\1/2\ centuries from having
one of the world's best, most objective judicial systems in the entire
world. While no system run by fallible, mortal human beings can be
described as perfect, ours is as good a system as has ever existed in
the world and certainly as good as any that exists in the world today.
But the capstone of that is an entity that exists by virtue, by
operation of the Constitution--the Supreme Court of the United States.
This solution--a solution that is being rammed through today--this is
a solution in search of a problem that would itself create another
problem for which there would be no solution. That problem would, in
turn, turn one of our greatest strengths--an independent, functioning
judicial system, one that has preserved the rule of law in this country
for nearly 2\1/2\ centuries--into something, a more political animal.
It is not what we wanted. It is not what the Constitution contemplates.
It is not what we benefited from.
And why? We must ask the question why. Is there any great moral
offense that has been committed? No. Is there any grave violation of
law that has been committed? No. Is there any violation of law that has
been committed at all? No, there is not.
What we have here is something very, very cynical, and what we have
is that people on the left have a couple of cases currently pending
before the Supreme Court of the United States--cases that they are
worried about the outcome, cases in which they are worried that certain
Justices might rule against them. And they have some Justices they
don't like. They have some Justices that they worry are going to reject
the bad arguments that they have made in those cases. So rather than
double down on making sure that their arguments are good and that they
are persuasive and recognizing that they are not going to win all
cases, they are threatening, they are intimidating the Justices.
They are making--it is not just a mountain out of a molehill; they
are making a mountain out of nothing. They are doing this specifically
to harass, threaten, and intimidate certain members of the Supreme
Court in order to influence the outcome of pending litigation. Make no
mistake, that is what is going on here. They are trying to trigger more
recusals--recusals of those Justices they don't like.
The legislation they are offering would create more problems in this,
would make it easier for them to trigger more recusals.
This is not a good outcome. This is a political effort to influence
the resolution of pending litigation before the Supreme Court of the
United States and to threaten Justices that don't toe the woke line.
I withhold my objection at this moment.
The PRESIDING OFFICER. Is there an objection?
The Senator from Texas.
Mr. CORNYN. Madam President, reserving the right to object, I just
want to briefly summarize the arguments that my able colleagues on this
side of the aisle have made.
An independent judiciary is the crown jewels of our democracy. What
do I mean by that? We have the political branches of government.
We have got the White House, popularly elected President through the
electoral college. We have got individual Senators elected by various
States. And then we have got the House of Representatives. Those are
all political bodies.
The judiciary, created by the Constitution--the Supreme Court
specifically--was designed to be a check on the abuses of power by the
political branches of government and to hold up the Constitution as a
supreme law of the land. That was Marbury versus Madison by Chief
Justice Marshall in 1804, I believe.
So the Constitution is the supreme law of the land. It is not the
political branches. And I think in recent years, we have seen every
institution in Washington, DC, corrupted in one way or the other by the
politicalization of previously revered institutions. And I am talking
specifically about the FBI and the use of an opposition research by a
Presidential candidate against a successful Presidential candidate,
President Trump, and then the FBI director saying his mission in life
was to see a special counsel appointed, which it was for 2 years--
Robert Mueller, who found no basis upon which to bring any charges.
Unfortunately, the American people feel like there is a two-tiered
system of justice in this country. And that justice system, which has
been the crown jewel of our system, has been corrupted by politics. And
now our colleagues want to use that same corruption by politics of the
independent judiciary and the Supreme Court of the United States.
That may not be their intention. Maybe it is. They want the Supreme
Court to become subservient to the Congress, which is anathema to the
constitutional order created by the Framers.
This effort lays bare an effort by our Democratic colleagues to
control an entire branch of government. There have been bills filed by
the Senator from Massachusetts and others to pack the Supreme Court.
Fortunately, they haven't gone anywhere. But as our colleague knows and
admitted yesterday, the chairman of the Judiciary Committee, this is
nothing but a political exercise, and it needs to end now.
For these reasons, I would oppose this legislation and withhold my
objection so the distinguished ranking member from the Judiciary
Committee can speak.
The PRESIDING OFFICER. Is there an objection?
Mr. GRAHAM. I object.
The PRESIDING OFFICER. Objection is heard.
The majority whip.
Mr. DURBIN. 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
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$100,000 is business as usual in the Supreme Court. The American
people, I am sure, would disagree.
I yield the floor.