Democrats May Be Sidestepping A Key Legal Question In Their Bid To Impose Ethics Rules On SCOTUS, Experts Say

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  • Democrats need to address a key legal question when considering proposals to impose ethics rules on the Supreme Court, experts told the Daily Caller News Foundation.
  • The Senate Judiciary Committee’s April 11 announcement that it would hold a hearing on “the need to restore confidence” in the Court’s ethical standards is the latest of many attempts to impose an ethics code, which have included legislation proposals and talk of using the spending bill to force the issue.
  • Thomas Jipping, senior legal fellow for Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, told the DCNF Democrats’ proposals pose potential separation of powers issues.

Democratic lawmakers may be sidestepping an important constitutional question in their renewed attempts to impose ethics rules on the Supreme Court after a report on Justice Clarence Thomas’ vacations and friendship with a billionaire emerged, legal scholars told the Daily Caller News Foundation.

Amid controversial rulings and increased scrutiny of justices, Democratic members of Congress have advanced proposals for forcing the Court to adopt a code of ethics, with the Senate Judiciary Committee announcing April 11 that it would hold a hearing on “the need to restore confidence” in the Court’s ethical standards. While some experts see room for legislatures to step in, others are more skeptical, warning it could run afoul limits on congressional authority.

The Committee’s hearing announcement follows a report on Justice Thomas that claimed he violated ethics rules by accepting paid vacations from his billionaire friend Harlan Crow. Thomas said colleagues had advised him the trips were not reportable, and conservative legal scholars dismissed the report as a partisan attempt to attack the justice, whose opinions are unpopular among Democrats.

“Congress created the lower courts, so can regulate them as it wishes,” Ilya Shapiro, senior fellow and director of constitutional studies at the Manhattan Institute, told the DCNF. “But the Constitution created the Supreme Court and [gave] no explicit congressional authority over it other than with regard to the budget. Congress could threaten the Court’s budget if it didn’t adopt certain policies, but that’s a significant political escalation.”

Recently, Senate Appropriations Subcommittee Chair Democratic Maryland Sen. Chris Van Hollen said he intends to use his spending bill as leverage to force the issue. Shapiro called the proposal “high-stakes political gamesmanship that if driven to the slippery-slope conclusion–complete defunding–would become a constitutional crisis.”

Thomas Jipping, senior legal fellow for Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, noted that the recent Supreme Court budget request increases security funding, warning the proposal could become an issue if Congress attempts to “hold hostage money necessary to keep the justices safe.”

After Roe v. Wade was overturned, abortion activists protested outside justices’ homes, and one man who showed up attempted to assassinate Justice Brett Kavanaugh.

He also highlighted the separation of powers issue, stating that he “can’t think of a more serious attack on the independence of the judiciary.” (RELATED: ‘Big Breathless Nothingburger’: Conservative Legal Scholars, Lawmakers Blast ‘Partisan’ Justice Thomas Report)

Democrats in Congress are “trying to demonize the Supreme Court” by suggesting that “decisions made must be motivated by politics, or corruption, or secret dark money,” Jipping argued.

On Friday, Senate Judiciary Chair Democratic Rhode Island Sen. Sheldon Whitehouse and Democratic Georgia Rep. Hank Johnson asked the Judicial Conference to refer Thomas to the DOJ for investigation.

Whitehouse has spearheaded many efforts to impose ethics reforms on the Court. In February, he reintroduced the Supreme Court Ethics, Recusal, and Transparency (SCERT) Act, which would create a process for investigating misconduct, strengthen recusal standards, and mandate a code of ethics.

The Judicial Conference announced it adopted tighter personal hospitality reporting rules in March following a letter Whitehouse sent them.

US Supreme Court

The US Supreme Court is seen in Washington, DC, on January 31, 2017. – President Donald Trump was poised Tuesday to unveil his pick for the US Supreme Court, a crucial appointment that could tilt the bench to conservatives on deeply divisive issues such as abortion and gun control. Trump’s choice aims to fill a vacancy left by the sudden death of conservative justice Antonin Scalia in February 2016, which left the highest US court with four conservative and four liberal justices. (SAUL LOEB/AFP via Getty Images)

Gabe Roth, executive director of Fix the Court, an organization that advocates for more accountability in the federal courts, disputed the idea that the discussion on judicial ethics should be partisan.

“[The] appropriations process has been used in the past by Republicans and Democrats alike to implement policy changes in the judiciary,” he said, noting it has been used to make structural changes in the federal courts and, just last year, administrative reforms “that called on the third branch to move forward with plans to conduct a workplace climate survey, which has since begun, and to share lessons learned with lawmakers and the public, which a judiciary official last month committed to do.”

Moreover, he said not having an ethics code “suggests the nine are hiding something or are not acting above board when, of course, most of the time they do.”

“Put another way, the justices are not monastic: they take trips, they speak at law schools, they have investments, and many of them have family members who are practicing attorneys,” Roth said. “These entanglements are a natural part of our 21st century world, but at times they lead to potential ethical issues.”

Therefore, Roth argued that “the justices themselves” should author a single, comprehensive code.

University of Virginia School of Law professor Amanda Frost, who has testified before the House and Senate on the issue, told the DCNF that Congress does have the authority to regulate judicial ethics — though that authority is “not unlimited,” as she argues in a 2013 paper.

“Article 111’s silence, coupled with Congress’s authority under the Necessary and Proper Clause, empowers Congress to enact legislation to regulate judicial ethics, just as it enables Congress to enact legislation concerning the Court’s size, meeting dates, and other vital administrative matters,” she writes, continuing to add that “its powers are constrained by other constitutional values, such as the separation of powers and the need to preserve judicial independence.”

Nevertheless, Jipping believes there are other motives behind Democrats’ proposals and attacks on justices.

“They are intentionally trying to advance the public’s belief that the Supreme Court, and perhaps the judiciary in general, is somehow unethical,” he said, adding that this too is an assault on judicial independence. “Once that is compromised, we’re never going to get it back.”

When asked if there are currently ethics problems on the court, Shapiro simply said he “didn’t see any.”

“All of this hullabaloo is a solution in search of a problem,” he told the DCNF.

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