Some Republican senators are feeling uneasy about the reports that Justice Clarence Thomas accepted tens of thousands of dollars worth of hospitality, luxury travel and other favors from a conservative donor — and that unease could fuel bipartisan support for a Supreme Court ethics reform bill.
Their growing concern comes amid declining public approval of the Supreme Court and evidence that Americans increasingly believe the courts and law enforcement agencies have become politicized.
“I think we are moving dangerously close to a place where the public has lost faith and trust in the credibility of our governing institutions. They don’t trust the court, I don’t think what’s going on with Justice Thomas is helping anything,” Sen. Lisa Murkowski (R-Alaska) said.
Murkowski said she spoke on Tuesday with Sen. Angus King (I-Maine) about a proposal he is circulating among colleagues to require the Supreme Court to adopt a judicial code of conduct. She said she supported the approach outlined in the proposal: to require justices — not members of Congress — to set ethics rules for the Supreme Court.
“I see no reason not to be able to support this other than are Republicans worried that we don’t want to embarrass the conservative members of the court. We need to be worried about the credibility of the court right now. If I were Chief Justice Roberts, I would have been working on this the minute this news broke,” she said.
Reporting by ProPublica that Thomas failed to disclose luxury trips he accepted regularly from Texas billionaire Harlan Crow, as well as the sale of a property in which he owned a one-third interest to one of Crow’s company has prompted a public outcry.
Democrats on Capitol Hill are calling on Chief Justice John Roberts to investigate the matter and the Senate Judiciary Committee is planning to hold a hearing about the high court’s ethical standards.
Sen. Susan Collins (R-Maine), declined to comment on directly the allegations that Thomas vacationed on Crow’s superyacht or regularly flew on his Bombardier Global 5000 jet, without disclosing it, but she said she supports the Judiciary Committee looking into the court’s ethics.
“I think it’s an issue the Judiciary Committee should take a look at,” she said. “I think the Judiciary Committee should have a hearing and hear from the Judicial Conference.”
The Judicial Conference is the policymaking body for federal courts.
She said senators should “hear from legal experts” and “then make some sort of decision.”
Collins said when she learned of that Thomas had accepted hospitality and travel from a wealthy friend, “my reaction was that I wondered what the judicial practices were in this area.”
“I know that personal hospitality is exempt and that he has known the Crow family for a long time, they’re personal friends, but that doesn’t usually extend to the use of airplanes to pick up someone to bring someone to a site,” she said.
The 1978 Ethics in Government Act requires high-level government officials, including Supreme Court justices, to file publicly available financial disclosure statements.
Sen. Sheldon Whitehouse (D-R.I.), a senior member of the Judiciary Committee, noted on the floor Tuesday that while the disclosure rules exempt food, lodging or entertainment received as personal hospitality, they do not exempt transportation and travel.
He said “each one of those trips” Thomas took on Crow’s plane “seems to be a slam-dunk violation of this provision.”
He also pointed out that the law required Thomas to disclose “any purchase, sale or exchange in real property other than the property used solely as a personal residence of the reporting individual.”
Members of the Supreme Court do not have to abide by the Judicial Conference’s code of conduct for U.S. judges, which binds every other member of the federal judiciary.
When Democrats on the Judiciary Committee asked Roberts to adopt that code of conduct for himself and fellow justices, Roberts responded that the high court “had no reason to adopt the Code of Conduct as its definitive source of ethical guidance.”
Even Republicans who don’t think Congress should police the Supreme Court’s ethics tacitly acknowledge that Thomas’s close relationship with the Dallas businessman, which comes with many fancy perks, may appear problematic to regular Americans.
“My first reaction was the court being a separate branch of government should have the first opportunity to police it or to monitor or to respond to it,” Sen. Mike Rounds (R-S.D.) said.
He noted that Thomas plans to amend his financial disclosure documents to reflect the real estate transaction he made with Crow.
“I think sometimes we get to the point where we see something bad happening and we say, ‘Well, we have to do something,’ but we don’t know what it is and we end up doing something in a knee-jerk fashion,” he said, adding Thomas’s acceptance of hospitality and travel “is being identified” in a negative light.
Sen. Lindsey Graham (R-S.C.), the ranking member on the Senate Judiciary Committee, said he thinks the court will move on its own to adopt new ethical guidelines and that Congress shouldn’t intervene.
“A lot of us are really leery of micromanaging the other branch but I think that’s where the court is headed, at least that’s where I hope they are,” he said.
“I think the court is on the track of making sure the perception problem is dealt with,” he added. “Clarence Thomas is a friend. I like him and I take his word for what happened. The reason we have these [ethics] rules on our side [of government] is to make sure people feel confident and I think that’s where the court is headed.”
Other Republicans are taking a harder line in defending Thomas.
Sen. Rand Paul (R-Ky.) said “most of” the criticism of Thomas is “partisan.”
“When I look at Clarence Thomas’s long career, I see a courageous intellectual,” he said. “He’s been an amazingly independent sort of libertarian-leaning intellectual.”
Sen. Ted Cruz (R-Texas), a member of the Judiciary panel, said, “I think the topic of judicial ethics is certainly an appropriate topic for the Judiciary Committee” but said “I don’t think that’s actually what Senate Democrats are interested in.”
“Senate Democrats are driving a smear campaign directed very particularly at Justice Clarence Thomas because they despise Justice Thomas. They disagree with his jurisprudence,” he said.
Senate Minority Leader Mitch McConnell (R-Ky.) didn’t outright defend Thomas, but on Tuesday defended the Supreme Court’s independence and said he had “total confidence” in Roberts to handle any ethical issues facing the court.
The Supreme Court controversy comes at the same time two federal district court judges — one appointed by former President Trump and one appointed by former President Obama — issued dueling rulings on the abortion pill Mifepristone.
And the Senate’s confirmation process for Supreme Court nominees has become more and more partisan over the past two decades.
Murkowski argues that it’s important to restore Americans’ faith in their institutions, including the federal judiciary.
“I think there have been some recent rulings that have rattled people and their confidence in the impartiality of our process that [judicial nominees] go through for confirmation,” she said.
“We’re losing — I don’t know — credibility in our systems,” she said.
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