[Congressional Record Volume 170, Number 99 (Wednesday, June 12, 2024)]
[Senate]
[Pages S4043-S4046]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



              Unanimous Consent Request--S. 359--Continued

  Mr. WHITEHOUSE. Madam President, first, let me thank the chairman of 
our committee for attempting to bring this bill to the floor and to get 
us on it. Even though the Republicans have objected to Supreme Court 
ethics, it is important for us to continue to make the effort because 
the American people understand that there is something gone very wrong 
at the Supreme Court.
  The objections that we just heard amounted to a long excursion 
through a great variety of topics: through abortion; through past FBI 
investigations; through allegations about a two-tiered system of 
justice; through wokeness; through things we all agree on, like 
separation of powers and an independent judiciary. I think it would be 
helpful to actually come into focus on what we are actually talking 
about here because most of what was said in opposition to this bill is 
completely irrelevant to what we are seeking to achieve.
  We all accept the doctrine of separation of powers. Senator 
Blumenthal, who is here, is an expert in the subject. He has argued 
more cases in the Supreme Court than any other Senator. To be clear, 
our bill does not make the Supreme Court subservient to Congress in any 
respect. The bill obliges the judicial branch of government to create 
its own ethics enforcement mechanism that will be run within the 
judicial branch of government by the judicial branch of government. 
There simply is not a separation of powers concern when the judicial 
branch of government runs an ethics program for the judicial branch of 
government that is administered within the judicial branch of 
government. It just ain't so.
  The existing state of affairs is that the ethics requirements that 
apply to the Justices of the Supreme Court, first, related to recusal 
and, second, related to disclosure of gifts are laws passed by 
Congress.
  And the enforcement, particularly of the disclosure requirements, is 
done by the Judicial Conference. The Judicial Conference is a body 
established by Congress.
  When Harlan Crow first started giving free yacht and jet travel 
secretly to Clarence Thomas, that question was taken up by the Judicial 
Conference a decade ago.
  Did the Justices complain that the Judicial Conference was 
investigating Justice Thomas and his disclosures? No, of course not, 
because the argument would make no sense. So to hear it here on the 
Senate floor is a bit disappointing. Right now, the Judicial Conference 
investigates and can sanction or refer for further investigation 
Justices of the Supreme Court.
  We are trying to fix three really simple problems: One is 
factfinding. Factfinding ought not to be an issue in dispute. Every 
member of government in the United States who is subject to any kind of 
supervision or ethics requirement--which is everybody--had a process 
whereby the actual facts are found of what went wrong. Hell, even the 
President of the United States had to sit for a factfinding interview 
about the documents in his garage. It is only nine people in the 
entirety of the U.S. Government who think that they have no obligation 
to do any factfinding. And that is pretty dangerous because we just saw 
Justice Alito offer facts, a description, about what went on behind his 
family flying MAGA battle flags over their houses that has been proven 
false by information that is incontestable. Police reports with dates 
show that he got the order of things wrong. COVID showed that it 
couldn't possibly have been a schoolbus stop.
  So you have erroneous facts offered by Supreme Court Justices with no 
method to review them. Or they completely ignore the facts. Justice 
Thomas has refused to ever say a word about what he knew about his 
wife's engagement in the insurrection while he was adjudicating the 
rights of those investigating the insurrection.
  There is nobody else in the world where somebody doesn't come in and 
say: Sir, we have a complaint about your conduct, and we are going to 
need to take a statement from you. This won't take long. I am going to 
ask you some questions. You will give your answers. At the end, we will 
ask you to review and sign your statement.
  Nothing difficult about that. Nothing against the separation of 
powers about that. Nothing that Chief Justice Roberts couldn't require 
right now about that. He could have Supreme Court staff attorneys 
conduct exactly that kind of work right now, as the chairman has 
repeatedly pointed out.
  Factfinding is a really basic elemental proposition of our American 
judicial process, and it applies everywhere. It makes no sense for the 
body ultimately responsible for policing proper judicial process in the 
United States to not allow itself to participate in that most elemental 
and fundamental task of there being actual factfinding.
  The second is a principle so old it is in Latin, for Pete's sake: 
``Nemo iudex in causa sua''; no one should judge their own case. That 
is pretty easy to understand. And yet we let these Justices alone in 
the United States--nobody else--get to be the judges of their own 
ethics. And, obviously, they have failed to measure up.
  And the third issue is transparency, disclosure. We know perfectly 
well that the Justices have failed at their disclosure obligations, and 
they can't keep their stories straight about meeting their disclosure 
obligations.
  We just had Justice Thomas go back into his previous disclosures to 
correct them and tell the world and the Judicial Conference, which was 
reviewing this, that his failure to file was an accidental error. It 
was ``inadvertent.'' But earlier he had said about the same gift from 
the same billionaire: Oh, those don't have to be reported. That was 
personal hospitality from a dear friend.
  Well, which is it? Is it personal hospitality that doesn't have to be 
reported? Or is it something that you knew perfectly well you should 
have reported, and now you are going back and cleaning up an error that 
you are claiming is inadvertent?
  The disclosure mistakes are inexcusable on their face. Federal 
officials who commit far less in the way of disclosure mistakes have 
actually been prosecuted as felons, as misdemeanants, under the 
criminal law for those similar disclosure violations.
  So we need to get this right. All it requires is factfinding and an 
independent voice so it is not nemo iudex. You are not judging your own 
cause. Those are really basic principles. That is all we are trying to 
do.
  It would be done by judges within the judiciary. There is no 
separation of powers issue. That is a complete canard.
  And I will close by saying that the Judicial Conference has been 
helping us in all of this. The Judicial Conference has just blown up 
Justice Scalia's trick, which was to solicit through intermediaries 
free vacations from resort owners, and then when the resort owner 
invited him with a personal invitation, he would pretend that that was 
personal hospitality because it was a personal invitation, even if he 
had never met the resort owner. That is a preposterous reading of the 
personal hospitality exemption. And it is not just me saying that. The 
judges of the Judicial Conference said: You are right. That is 
preposterous. That is ridiculous. We are clarifying the rule that that 
is not acceptable.
  And he had done it 60 times. He was a vacation-taking fiend. My Lord.
  So the idea that you can trust a Supreme Court Justice, with no 
independent review, no factfinding, each the judge in his own cause, to 
follow the rules has been blown to smithereens by the conduct of the 
Supreme Court Justices themselves. As our chairman is fond of saying: 
This is a crisis in ethics at the Supreme Court

[[Page S4044]]

that the Supreme Court itself has created. It is a crisis in ethics of 
the Supreme Court that Justice Roberts himself at the Judicial 
Conference can solve.
  But if they are not going to do it, we are going to do what we did 
before when we set up the Judicial Conference, when we set up the 
recusal laws, when we set up the disclosure laws. Set up the system, 
and let the judiciary enforce it.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Ossoff). The Senator from Connecticut.
  Mr. BLUMENTHAL. Mr. President, I want to thank my colleagues Senator 
Durbin and Senator Whitehouse. I have been proud to be part of their 
team in working for the most minimal kind of ethical standards for the 
highest Court in the land. Right now, that Court has no enforceable 
code of conduct, unlike any other court in the Federal system, unlike 
any other branch of government. It is so elemental as a matter of 
simple ethical conduct and appearance.
  The Supreme Court has squandered its almost mystical authority, its 
unique power in the Federal Government. In a sense, that power was not 
envisioned by the Founders. The idea of judicial review came after the 
Constitution was written. We can thank Justice Marshall for the idea 
that the Supreme Court can literally strike down what we do here. It is 
the most powerful branch of government--not the least dangerous but the 
most powerful.
  Think of it for a moment. In a democratic republic, it is unelected; 
it has life tenure. Nobody can tell a Justice: You are too old to do 
this stuff anymore. It is the most anti-democratic or undemocratic 
institution in a democratic system of government that you could 
possibly imagine. So its power is really dependent on its adherence to 
standards of integrity to gain respect and credibility. It has no army. 
It has no police force. People follow those orders that it issues 
because its wisdom and integrity have gained respect.
  This Supreme Court is different than any other we have seen, and it 
is not just two Members of the Supreme Court; it is the institution as 
a whole that is responsible, and it is the Chief Justice of the Court 
that is most responsible.
  So I ask Chief Justice Roberts: Please endorse this legislation not 
just for the sake of your legacy--we know Chief Justice Roberts cares 
about his legacy--but for the sake of the Court.
  This Court is doing things and its Justices are committing errors of 
extraordinary misjudgment--not to mention the corrupt taking of gifts 
and trips and all the rest--that are, to use my colleague's words, 
blowing to smithereens the credibility and trust that this Court needs. 
It needs it for its decisions to be followed and respected.
  What we are doing here is very simply saying to the Court: You must 
have a code of conduct that is enforceable.
  We are not telling them what to do. We are not telling them to decide 
a case in one way or another. We are not interfering with their docket. 
We are not in any way affecting the substantive decisions of the U.S. 
Supreme Court. It is simply telling them to conduct themselves as 
public officials--whether they take gifts, whether they go on trips 
paid by somebody else, whether they accept tuition grants. It is common 
sense. You don't need to be a law school graduate to understand it.
  In fact, this idea is more comprehensible and more impactful to the 
folks who go to work every day. Nobody gives them college tuition. 
Nobody takes them on private jets to islands that cost thousands of 
dollars to reach. To the ordinary American, the everyday American, this 
legislation not only makes sense, I think most people assume there 
already is legislation like the one we are debating today.
  I am not going to belabor the specific provisions of this bill, but I 
believe that we are going to have to go further. I think there ought to 
be an inspector general for the courts as a part of the Judicial 
Conference, just like there is in other government entities. I think 
there has to be Court reform that casts light on the shadow docket. 
There are a series of reforms, and some are a lot more draconian in 
their scope, but this act is simple in requiring disclosure rules for 
gifts, travel, and income that are at least as strict as those we 
comply with here in Congress; a code of ethics; recusal--and Alito and 
Thomas should have recused themselves long ago from decisions involving 
Donald Trump.
  This comprehensive judicial ethics legislation is long overdue, and 
my biggest regret as I stand on the floor of the Senate today is that 
it is not bipartisan, because it should be.
  I have argued four cases before the U.S. Supreme Court. I have been a 
law clerk there. I have immense respect, unshakable respect, for the 
institution--the institution. I have reverence for what it reflects in 
America. Sadly, the Court has inflicted wounds on itself that will be 
difficult--and my fear is, impossible--to repair, but this measure will 
at least begin that process.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. WELCH. Mr. President, my colleagues on the Republican side have 
made the assertion that this legislation would interfere with the 
independence of the judiciary. That is a serious assertion, and it 
deserves to be respected and responded to.
  The judiciary is an absolutely vital branch of government that is 
independent. It is independent in the process by which it makes 
decisions that come before it for its decision. That is where it is 
independent. As much as I disagree with many of the decisions of the 
Supreme Court, that Court has the right, without interference from 
Congress, to make the decisions it makes.
  There is absolutely nothing in this legislation that interferes with 
the judicial power that the Court alone exercises in considering cases 
and making decisions--there is absolutely nothing--and to have our 
colleagues suggest that this legislation would do that is flat-out 
wrong.
  What this legislation responds to is the conduct of individual 
Justices that is, you know, frankly, pretty shocking. You get a call: 
Hey, there is a yacht that needs you on board. Hey, don't worry about 
how to get there; we have a private plane. Hey, don't worry--if you 
didn't come, that seat would be unoccupied.
  The Justice actually does it. They get on that plane and go, and they 
get on that yacht.
  Hey, by the way, we are having a fishing trip. It is in Alaska. It is 
really cool. Let's go. There is an empty seat. Why don't you come. It 
is worth $100,000, but it doesn't have to be reported.
  You know, when we talk about a code of ethics for the Supreme Court--
and these are some of the examples of why it is needed--my constituents 
from Vermont say: Peter, what are you talking about--a code of ethics? 
They can get away with that? They can do that? They can take this free 
trip?
  It is really, really shocking.
  You know, my colleague from Connecticut said it right: The Chief 
Justice has not only the authority but the responsibility to deal with 
the problems of behavior on his own Court, and he is not doing it. He 
is not doing it.
  Another point that my colleagues make that I am in 100 percent 
agreement with is that we need a Supreme Court that has the credibility 
and confidence of this country. We face very difficult decisions that 
are quite contentious and that divide America, and when those are 
contested and they go to the Court and the Court renders a decision 
that all of us have to abide by whether we were on the winning side or 
the losing side, we absolutely must have a Court that has credibility. 
The credibility has to be, if it is going to be enhanced by the Court, 
by following codes of conduct and by giving the American people 
confidence that they are on the level. They are not doing it.
  These free trips, these private planes, the private yachts--that is 
just self-serving and, frankly, gross. Who has the opportunity to take 
those trips in the jobs they do?
  By the way, this is an important job they have, but it is a job. You 
know, you do your job. You get your paycheck. You show up for work. You 
treat the people you work with decently. But you don't have some 
expectation because of the particular job you have of getting free 
special trips just because you are ``important.'' That is not part of 
the deal here. That is not constitutionally protected. That

[[Page S4045]]

is not anything to do with the independence of the judiciary. That is 
just about venal, self-serving conduct by people who happen to have a 
lifetime appointment.
  The other point here that is really, truly shocking and astonishing 
is that we have got over 800 judges--circuit court, appellate court, 
bankruptcy judges--and they have a code of conduct. They can't do this. 
There are only nine folks who can do it, and they are on the Supreme 
Court. They should have the highest standards that apply to them, self-
imposed. They have no standards.
  This is the Supreme Court eroding the confidence the public--all of 
us, whichever side of the decision we are on--is entitled to have from 
the people who have that lifetime appointment, and they are squandering 
it. They are turning a blind eye to the needs of the people they serve.
  This ethics legislation is unfortunately necessary because the 
Supreme Court will not do what it has the responsibility to do. The 
Chief Justice of the U.S. Supreme Court will not face down colleagues 
on that Court who are just disregarding normal rules of decency.
  So I say to the Presiding Officer and my colleagues and I say to my 
colleagues on the other side of the aisle: All of us should be doing 
everything we can to restore confidence in the judiciary. This is step 
one.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. MERKLEY. Mr. President, this last weekend, I held six townhalls 
in six rural counties, and in townhall after townhall, people asked me: 
What happened to the Supreme Court? How did it become so corrupt? Why 
hasn't the Chief Justice reined it in?
  Well, these six townhalls were not an anomaly. I have held 25 
townhalls previous to this weekend this year, and again, in community 
after community, people want to know how has it occurred that the 
Supreme Court has squandered its integrity. They are alarmed about the 
members of the Court taking special favors, gifts worth millions of 
dollars.
  Wait, did I say millions of dollars? Surely thousands, not millions. 
Yes, the Justices have taken gifts worth millions of dollars. The Fix 
the Court group has documented gifts since--let's see, over the last 20 
years--2004 valued at $6,592,657 to 18 current and former Justices of 
the Court, with 1 Justice alone, Justice Thomas, taking 193 gifts 
valued at over $4 million and with Justice Alito accepting gifts valued 
at over $170,000.
  How is it possible that the highest Court in the land has sunk to 
such a low level? Those gifts--$300,000 luxury RVs, fishing trips to 
Alaska, superyacht trips to Russia and the Greek isles and Indonesia.
  Well, the Court did respond. They responded early this year by 
releasing their own code of ethics--a publicity stunt. It is a code of 
ethics with no teeth, a code of ethics with no enforcement, a code of 
ethics that completely fails to address the obvious conflicts of 
interest and breaches of public trust. Justice may be blind, but we 
cannot turn a blind eye to these injustices.

  Congress and the Court are separate but equal branches of power, and 
it is our job to check and balance one another. The Supreme Court 
certainly should have issued for itself a compelling code of ethics, 
but it has not, and so the balance is for us to do it for them. It is 
our responsibility to do it, to protect them from their own common 
instincts of taking gifts that they should never touch.
  The Supreme Court Ethics, Recusal, and Transparency Act will require 
a strong and enforceable code of ethics for the Supreme Court so that 
all Americans can trust that cases before the Court are being decided 
impartially, based on the facts of the case, the letter of the law, and 
the principles of our ``we the people'' Constitution, not based on 
relationships forged on superyachts and fishing trips and gifts of 
$300,000 RVs.
  Who here, if you were called to defend yourself at a suit in court, 
would feel like you are getting a fair hearing if the party who brought 
the suit against you has been giving thousands or millions of dollars 
to the judge hearing the case? Who here would think that you are 
getting a fair hearing? No one.
  We all understand that this is corruption. We all understand that 
this is a horrific conflict of interest. And we all understand it is 
unacceptable, and the Court has failed in its responsibility to the 
American people.
  The Supreme Court has to stand for the interests of the people, not 
the powerful. Think of these life-altering cases being decided by the 
Court on reproductive rights, on worker rights, on voting rights, on 
environmental rights, and on LGBTQ rights. So we need--the American 
people need--transparency. They need legitimacy. They need 
accountability. We, the American people, need justice unpolluted by 
gifts from parties having issues before the Court.
  So I urge my colleagues: Let's all stand together--all 100 of us 
stand up--for the integrity of the Court and pass the Supreme Court 
Ethics, Recusal, and Transparency Act.
  It is my pleasure to yield to my colleague from the State of 
Delaware, Senator Coons.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. COONS. Mr. President, I rise to urge this body to reconsider the 
objection that was just made by my colleagues.
  The rule of law, the system of ordered liberty for which so many 
Americans have served and sacrificed at home and abroad, is a fragile 
thing. It is, at times, a mere tissue, and it is held together by the 
confidence of our people in the ethics and integrity of those whom they 
elect or who are appointed, nominated, and confirmed to serve them.
  We have seen a number of challenging chapters around ethics and 
integrity in public service recently, but, tonight, we are on this 
floor to speak about our Supreme Court and a simply shocking series of 
revelations about ways in which Justices have accepted, over years, 
huge amounts of gifts.
  The suggestion has been made by a number of my colleagues that this 
is just Democrats, that this is just a partisan attack on a few 
Justices to try and roll back or undermine decisions they have made 
that we dislike or their legitimacy. Well, I can give you a compelling 
counterpoint.
  My friend and colleague Senator Cornyn and I have seen a whole series 
of stories in the Wall Street Journal in 2021 that revealed that there 
were dozens of Federal judges who had stock holdings in companies where 
issues before them implicated the value of that company. It moved us to 
introduce the bipartisan Courthouse Ethics and Transparency Act.
  Your typical bill takes 6, 7, 8 years to become law here in the 
Senate. This one moved faster than almost any other. On the Senate 
Judiciary Committee and here on the floor of the Senate, nobody argued 
that the Supreme Court needed to be above it all. Nobody argued that 
the Justices of the Supreme Court shouldn't be required to disclose 
their stock holdings and be accountable for their failures to recuse or 
disclose. In fact, that bill passed unanimously. Why, then, is this one 
not similarly situated?
  Every Federal judge is subject to a binding code of ethics. Every 
Senator and virtually every Federal employee in a senior decision-
making role is bound by a code of ethics. That is how the American 
people know that, if there is some sleight or false, some self-dealing 
or some action that creates the appearance of impropriety, action will 
be taken.
  After months and months and months of reports of misconduct, failure 
to disclose, questionable conduct by a Justice or two of the Supreme 
Court, a recent poll by Marquette shows that a majority of the American 
people have lost faith in this institution and no longer have 
confidence in the political independence and the ethics of our Supreme 
Court.
  Mr. Chief Justice, I hope you listen or watch. We believe you to be 
concerned about the legitimacy of this important institution.
  The Supreme Court is the only Federal Court not bound by a code of 
conduct that is enforceable and where these disclosures and their 
consequences cannot be acted upon.
  The highest Court in our land should not have the lowest ethical 
standards, and we should take a vote on this bill, the Supreme Court 
Ethics, Recusal, and Transparency Act. It should not be

[[Page S4046]]

controversial or partisan. This isn't about attacking one Justice or 
another.
  As someone who clerked for a Federal judge, as someone whose chief 
counsel clerked for a Federal judge--many of us are lawyers in this 
body and clerked for Federal judges. We know the importance of having 
an independent judiciary, of having a nonpartisan judiciary.
  The most powerful court in the land is the Supreme Court. When it 
issued landmark decisions unanimously, it moved the arc of history. 
Today, it issues decisions after decisions that are 5-4 and that are 
producing challenging secondary waves in our body politic.

  If the Supreme Court is to hold the role that our Framers intended, 
it must do so above reproach. That is not where we are today.
  Our Supreme Court must make itself accountable to the American 
people. We shouldn't read disclosure after disclosure in the press to 
learn about the conduct of the Justices.
  Just a few moments ago, earlier this evening, along with the rest of 
the Delaware delegation, I had the honor of meeting with the newest 
nominees to our Nation's service academies--young men and women who are 
raising their right hand and volunteering to serve our Nation, who will 
be granted the opportunity of a free education, in exchange for which 
they sign on the dotted line and agree to go serve our Nation at home 
and abroad and to defend our Nation and our Constitution from all 
enemies foreign and domestic.
  I have just completed a trip to the South Pacific, where I visited 
Manila. There, there is a World War II cemetery. It includes crosses 
marking the graves of 17,000 Americans who served and sacrificed in the 
convulsion that was the Second World War.
  Those crosses do not have marked on them ``Democrat'' or 
``Republican.'' The freedom for which they fought, the system of 
justice, the rule of law, the Constitution for which they took up arms 
against Imperial Japan, and worked so tirelessly alongside our allies 
to free a world under assault from fascism and imperialism--they did 
not do so based on a sense of partisan principles but out of a 
commitment to our Nation. We should honor those who served and 
sacrificed in a generation or two ago and those who are willing to 
serve and sacrifice today going forward by restoring ethics and 
transparency to the U.S. Supreme Court.
  They have cast a shameful shadow, not just the appearance of 
impropriety but a genuine conflict. It can be resolved. We must help 
them take the action they should take and resolve it. We should pass 
this bill.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Louisiana.