The Senate Judiciary Committee is slated Thursday to debate and vote on a bill backed by Senate Democrats that would impose a binding ethics code for the Supreme Court.
The committee will weigh a bill introduced by Sen. Sheldon Whitehouse (D-RI) that would set new requirements for financial disclosures and recusal in cases in which a justice may have a conflicting interest.
The 9:30 a.m. hearing comes in the wake of multiple reports revealing some Republican-appointed justices failed to disclose trips financed by their wealthy GOP donor friends in addition to previously undisclosed real estate transactions.
“Just about every week now, we learn something new and deeply troubling about the Justices serving on the Supreme Court—the highest court in the land in the United States—and their conduct outside the courtroom,” Chairman Sen. Dick Durbin (D-IL) said in a statement Wednesday. “Let me tell you, if I or any member of the Senate failed to report an all-expense paid luxury getaway or if we used our government staff to help sell books we wrote, we’d be in big trouble."
While Republican members on the committee are expected to push back on the proposal, the hearing stands to be more symbolic as Democrats will likely use the opportunity to bolster their agenda ahead of the 2024 election given their increased criticisms of the 6-3 Republican-appointed supermajority.
"It's not gonna get 60 votes in the Senate and certainly isn't going to pass the House because the Republicans say they see this a backdoor attack on the court's jurisprudence with the six conservatives," Russell Wheeler, a governance studies expert with the Brookings Institution, told the Washington Examiner.
Some Senate Judiciary Committee Republicans have suggested the ethics reform push is an effort by liberals to discredit the court and argue the justices should set their own policies.
During a May 2 hearing concerning ethics, ranking member Sen. Lindsey Graham (R-SC) recognized an "unseemly effort to destroy the legitimacy" by his colleagues across the aisle but also encouraged the Supreme Court to act on its own to help "instill more public confidence."
"They're going to create a complaint commission that would allow complaints against the court to be adjudicated by lower court judges," Graham said at a Wednesday afternoon press conference joined by Republican Sens. John Kennedy (LA) Marsha Blackburn (TN), Chuck Grassley (IA), Thom Tillis (NC) and Ted Cruz (TX).
"In other words, they're gonna allow lower court judges to tell the Supreme Court how to operate when it comes to a complaint against the court. That's a complete assault on the court as we know," Graham said.
Republicans were in agreement with Kennedy's remarks on Wednesday that Whitehouse's bill is "as dead as fried chicken," saying that it would only make it out of the committee but wouldn't pass the Senate or the House.
When asked by a reporter what Graham would like to see Chief Justice John Roberts do to address some of the high court's issues, Graham said the "whole point of this conversation is to let him make that decision."
Roberts was provided an invitation to testify at the May hearing but declined Durbin's request in a written response, citing "the importance of preserving judicial independence."
The chief justice said that the justices consult a code of conduct adopted by the policymaking body for the broader federal judiciary when assessing their own ethical obligations. That code, which requires judges to avoid even an "appearance of impropriety," is binding to lower court federal judges but not the nine justices.
Whitehouse's bill would require the Supreme Court to adopt a code of conduct and create a mechanism to investigate alleged violations.
The Supreme Court has signaled an interest in ethics changes in the past. For example, Justice Elena Kagan told lawmakers in 2019 that Roberts was considering a code of ethics.
If the justices took their own initiative to draft a code of ethics, "it would be so easy to do," Wheeler said, noting it would "really stifle some of the criticism."
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Wheeler noted the caveat that there could be some "holdouts" on the court, such as Justices Samuel Alito or Clarence Thomas, the two justices at the center of Democrats' complaints after a series of ProPublica reports in recent months highlighted their own lapsed disclosures.
Wheeler added that some members on the court could be reluctant to adopt an ethics code at this time to avoid the appearance of "pandering to the media or the Democrats."