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‘Thuggish Takedown’: Senate Republicans Accuse Democrats, Media Allies of Smear Campaign against Conservative Justices
Republicans on the Senate Judiciary Committee had harsh words for their Democratic colleagues during a Tuesday hearing on Supreme Court ethics, accusing the lawmakers of undermining the conservative Supreme Court majority because it stands in the way of their desired policy outcomes.
The hearing was scheduled by Judiciary Committee Democrats after ProPublica published a series of articles detailing Justice Clarence Thomas’s personal and financial relationship with Texas real estate developer Harlan Crow. Thomas has denied he’s acted improperly and Crow has explained he’s never tried to influence the justice. The developer has not had business before the Court during Thomas’s tenure, with the exception of one case that was never taken up involving a company which Crow had a minority interest in. However, many Democrats have used ProPublica’s investigation to argue that the Court should adopt stricter ethics rules.
For ranking member Lindsey Graham (R., S.C.), who has supported greater transparency from the Court in the past, the new push is not a good-faith effort. “We can talk about ethics and that’s great, but we’re also going to talk about a concentrated effort by the left to delegitimize this court and to cherrypick examples to make a point,” Graham said during his opening statement.
Graham pointed to Democrats supporting demonstrations outside the homes of the justices as well as the Court building, despite the fact these demonstrations are criminalized by federal statute. “I want to tell you, Gorsuch; I want to tell you, Kavanaugh: You have released the whirlwind and you will pay the price,” said Senate Majority Leader Chuck Schumer (D., N.Y.) in 2020.
The South Carolina senator linked the Judiciary Committee’s effort to a recent top story on the New York Times‘s website entitled “How Scalia Law School Became a Key Friend of the Court.” Graham took issue with the suggestion there was something wrong with that law school’s association with several of the conservative justices, paying for their trips as part of summer courses they taught. He pointed out that Justices Kennedy, Sotomayor, Ginsburg, Jackson, and Roberts have all traveled on the dime of other universities to teach classes.
“You can write as many articles as you want to write, you can take all the shots at the conservative justices you want to take, you can picket before their houses, it’s not going to stop people from doing their jobs,” Graham said.
“Virtually every member of the Democratic caucus except maybe one or two are for expanding the number of judges to dilute the conservative majority that exists today,” explained Graham. “This is about destroying a conservative court.”
Judiciary chairman Dick Durbin (D., Ill.) wanted Chief Justice John Roberts to headline Tuesday’s hearing, but was rebuffed, with Roberts noting in a letter how rare it is for the leader of the third branch to appear before Congress. Roberts also attached to his letter a statement in which all nine justices reaffirmed their voluntary commitment to ethical principles they subscribe to.
The hearing comes after several reports were published in mainstream outlets that implied that the conservative justices have benefitted improperly from their positions.
Senator Mike Lee (R., Utah) centered his time on the attacks that have been concentrated on Thomas.
“Today’s hearing and the radical left’s continued attacks on Justice Thomas and his wife Ginny over the last 31.5 years are part of a sustained, hateful attempt to discredit an honest man and a principled jurist,” explained Lee. “The truth is the left simply disagrees with his decisions and with the decisions of our current Supreme Court and they obviously can’t persuade the American people to adopt their radical policies through legislation, so they’re attempting to destroy the court’s credibility and intimidate the Republican-appointed justices and their families, starting with Justice Thomas.”
Senator Ted Cruz (R., Texas) agreed with Lee’s assessment, adding: “The left despises Clarence Thomas because he is a conservative African American.”
“This is all just a thuggish shakedown. Nice Supreme Court you’ve got there America, sure would be a shame if something happened to it,” Lee added.
Graham argued that if there are concerns about the Court, they need to be pursued fairly. The senator pointed out that discussions about dark money influencing the court never talk about how the organization Demand Justice pressured Justice Stephen Breyer to resign in an ad campaign. Additionally, if there are concerns about recusals, the question should be raised for all the justices equally, Graham said.
One measure that has been introduced by Senator Sheldon Whitehouse (D., R.I.) is called the Supreme Court Ethics, Recusal, and Transparency Act of 2022, and would govern various disclosures. It would require the court to adopt a code of conduct that is as rigorous as the rules governing members of Congress and it would also establish clear rules dictating when justices must recuse themselves. Another measure introduced by Senators Angus King (I., Maine) and Lisa Murkowski (R., Alaska) would require the Court to impose a code of conduct in a year, publish any rules on its website, designate an official to handle violations, and publish an annual report.
Senate Minority Leader Mitch McConnell (R., Ky.) has previously been opposed to such proposals, citing judicial independence.
“The Supreme Court and the court system is a whole separate part of our Constitution” said McConnell last month. “I have total confidence in the Chief Justice of the United States to deal with these internal court issues,” McConnell added, referring to the Thomas allegations.
One of the witnesses during the Tuesday hearing, Michael Mukasey, former attorney general under President George W. Bush and an ex-federal judge, argued that maintaining the separation of powers is essential.
“It is the Supreme Court, not Congress that has the constitutional prerogative to adopt a formal code of conduct governing the individual justices,” Mukasey said in his opening statement.
“A law controlling the court to adopt such a code or purporting to impose one legislatively would violate the principle of separation of powers and would also be unworkable,” said Mukasey. “If the public has a mistaken impression that the integrity of the court has been damaged, the fault for that lies with those who continue to level unfair criticism of the court and its justices. It is impossible to escape the conclusion that the public is being asked to hallucinate misconduct by justices who issue rulings with whom they disagree.”