[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.