At its executive business meeting tomorrow, the Senate Judiciary Committee will be voting on Senator Sheldon Whitehouse’s Supreme Court Ethics, Recusal, and Transparency (SCERT) Act, a cynical ploy to undermine a coordinate branch of government by perhaps the Senate’s most cynical member. (Recall the Rhode Island senator’s 2019 amicus brief threatening the Court with restructuring if it did not rule as he wanted—or the role he has assumed as the Senate’s leading conspiracy theorist, routinely vilifying those he disagrees with.) The legislation builds on the torrent of pseudo-ethics issues designed to destroy a Supreme Court whose recent decisions the Left finds disagreeable. The hand-wringing over ethics on Capitol Hill transparently employs double standards to single out conservative justices and ignore the liberal ones, fueled by incompetent journalism that fudges facts and routinely fails to find a single case in which one of its targets was corrupted.
The SCERT Act would require the Supreme Court to adopt a code of conduct and include disclosure requirements that are at least as broad as those that apply to members of Congress. Never mind that all the justices have voluntarily been making the same disclosures as other federal judges and recently reiterated that commitment in a joint statement on ethics practices. It may be too much to ask senators who have become accustomed to treating the Court like a super-legislature to understand that it is not in fact another political branch.
What should not be too much to ask is that members of Congress refrain from trying to destroy a coordinate branch of government. As I have noted previously, the SCERT Act would wreak havoc by creating a process by which people could submit complaints about Supreme Court justices to a panel of five appeals-court judges in an effort to disqualify them. The complaints may draw from a specific statute or regulation or simply allege “conduct that undermines the integrity of the Supreme Court.” That would enable a flood of disqualification motions in major cases, not to mention minor ones, in which anyone who wishes to see a justice removed from a case could throw a wrench into the process. It is another way to restructure the Court: Instead of pursuing the politically toxic tactic of packing it by adding justices, influence cases by subtracting them. Even falling short of that, this new mechanism would serve as a means of intimidating justices and delaying their work.
Whitehouse’s press release announcing the upcoming committee vote on his legislation makes only a fleeting mention of the bill’s complaint mechanism and not surprisingly does not include its details. It is, after all, easier to market such a package under the label “ethics” than under “restructuring the Court.” Whitehouse and the vast majority of his Democratic colleagues likely know that court-packing is going nowhere. Senator Ed Markey’s bill to add four justices to the Court, which had two cosponsors during the last Congress, has none so far in this one. The SCERT Act, by contrast, has 25 cosponsors, including all ten of Whitehouse’s fellow Democrats on the Judiciary Committee and Majority Leader Chuck Schumer. There is no suspense as to how the Democrats will vote on this. Committee Republicans have previously done well when they have shown up for hearings on this subject, discrediting the entire Democratic enterprise of mudslinging in an effort to destroy the Court. “If we can’t control it, let’s burn it down,” as Senator John Kennedy summarized the Left’s attitude during a May 17 hearing.
But this is not a front-page issue, and Democrats should not be permitted to stealthily advance this legislation without consequences. The committee’s Republicans recognize what is at stake and are holding a press conference at 4 p.m. today. Hopefully they will all attend tomorrow’s markup and continue to expose the SCERT Act as the destructive scheme that it is.